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MT 28 June 2015

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52 maltatoday, SUNDAY, 28 JUNE 2015 Opinion T he First Hall of the Civil Courts on 19 June, 2015 ruled that any taxed bill issued by the Registrar of Courts was correct since a court judgement did not establish the value of a particular property. This was held in Prof. Ian Refalo, Henry Deguara Caruana Gatto, Paul Deguara Caruana Gatto v. Maria Comeetta sive Connie Cachia Caruana and Registrar Qrati v. Tribunal Civili v. l-Kummissarju ta` l-Artijiet, l-Avukat Generali u Angelina Savona Ventura. The plaintiffs in their applications explained that on 15 July, 2014 the court in Kontessa Maria Tereza Deguara Caruana Gatto v. Kummissarju ta' l-Artijiet delivered its judgement in favour of the plaintiff, who is the mother of the present plaintiffs, Henry, Paul and Maria Deguara Caruana Gatto, who passed away on 27 April, 2014. Following the judgement the Registrar of Courts calculated and issued one taxed bill. According to Article 14 of Tariffs E of the Code of Organisation & Procedure: 'When a declaration containing a decision of any point of law or of fact concerns a value determinate or determinable according to law or from the records of the proceedings, the fee in respect of that decision shall be taxed in accordance with paragraph 13, on the value so determined.' In the decided Court case the Commissioner of Lands had pleaded that a notice of agreement for compensation following an expropriation to be paid, could not be issued due to doubts on the title of the property. In fact there was a third party which was claiming that he was the owner of the property and not the plaintiffs. In a court action instituted in 1999, the court appointed an architect to identify the land and its owners. The architect confirmed that the plaintiffs were the owners and this was reflected in the judgement of 15 July, 2014. The plaintiffs claim that once the court claimed that they were the owners, the taxed bill issued by the court should be calculated ad valorem, which was not the case. In fact they asked the court to declare the taxed bill as erroneous and as a consequence issue a new one. The Commissioner of Lands and the Attorney General disagreed, since the taxation of a lawsuit should be based on the nature of the case and not the financial interest of the parties. The judgment in question was limited to establish who the owner was and therefore, who is entitled for government compensation. The plaintiffs had blocked the court to establish the valuation. They also argued that the judgement had been delivered and as such the legal issues are now closed and concluded and cannot be reopened. The Registrar of Courts argued in its statement of defence that the taxed bill was correct, since it was calculated according to law. Mr Justice Lawrence Mintoff pointed out that the evidence produced was all documentary evidence. The Court saw that the plaintiffs were arguing that once the court was dealing with the title of property then its value should be factored in the taxed bill. The defendants argued to the contrary in that the basis of the action was a point of law. The Court agreed with the Commissioner of Lands, who argued that the lawsuit is final and therefore, res judicata and cannot be reopened in order for a valuation to be sought at this stage. The issue of compensation for expropriation is a separate issue from what the judgement decided. The judgment did not make any reference at all to the value of the property. Mr Justice Mintoff quoted from HSBC Bank Malta plc –v- Registratur tal-Qrati u Direttur Generali, which said that the taxation of court actions are based on what is requested in the initial application. The long practice in this field is that ad valorem taxation is when the claims would bring about the transfer of money or funds or property. The court held that in this particular case there was no transfer and therefore, turned down the plaintiffs' application. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A third party objector lodged an appeal following the approval of a "change of use from a garage to one part to be used as an office, and the remaining part to be used as Class 4 shop". In a strongly worded appeal before the Environment and Planning Tribunal, the objector maintained that the same applicant had already applied for a change of use of the garage to a gymnasium while in another instance, an application was made for the change of use of the same garage to a Class 4 shop. Both applications were, according to the objector, dismissed by the Malta Environment and Planning Authority. In addition, the objector alleged that the current application (subject of the appeal) was "evidently aimed to reach the same aim and scope not attained when the previous development applications were dismissed". The objector further underlined that the plans did not comply with sanitary requirements, adding that "the total footprint as declared in the application is that of 147 metres (excluding the backyard) whilst the real size of the site in question is that of 156 square metres". Such information was, in the objector's view, tantamount to "misleading information" and the objector thus requested the Tribunal to revoke the permit. For its part, the Tribunal dismissed all allegations. Nonetheless, it confirmed that the "approved plans" showed a shop having an area of 45 square metres, whilst in reality, the on-site area measured 48 square metres. In this respect, the Tribunal concluded that such a difference did not warrant revocation of the permit, since the differences were seen as "minor". Nevertheless, the Tribunal ordered that the approved plans should be "corrected" to reflect the real situation on site. The objector felt aggrieved by this decision and lodged an appeal before the Civil Courts of Appeal (Inferior Jurisdiction) insisting inter alia that the Tribunal had acted "ultra vires" when it ordered the "correction of the plans". (Ultra vires means going beyond one's legal power or authority.) In addition, the objector held that the Tribunal was at no point requested to amend the plans, and hence went extra petitum. (Extra petitum means when the court gives one something which was not asked for.) In its assessment, the Court dismissed the appeal. Indeed, the Court observed that according to Schedule 5 of Chapter 504 of the Laws of Malta, "the Tribunal may request an appellant to submit fresh documents and plans, in which case the Tribunal shall give reasons for such a request provided that the substance of the matter as presented before the Authority shall not change". Against this background, the Court reasoned that the Tribunal had every right to request fresh documents and thus concluded that the Tribunal's decision was legally founded. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law robert@rmperiti.com Robert Musumeci MEPAwatch Objector alleges that Tribunal acted "ultra vires" and went "extra petitum" Court taxed bill ruled as correct Court: Tribunal may request appellant to submit fresh documents and plans The court held that in this particular case there was no transfer of money or funds or property

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