Issue link: https://maltatoday.uberflip.com/i/553115
48 maltatoday, SUNDAY, 9 AUGUST 2015 Opinion T he First Hall of the Civil Court, presided by Ms Justice Lorraine Schembri Orland, on 16 July, 2015 in Maria Azzopardi et -v- Saviour Pisani and Swieqi Investments Limited decided that a garnishee order was justified at the time when it was filed, however, due to changes in circumstances the amount should be reduced. In his application Saviour Pisani asked the court to revoke the garnishee order of €20,000 in terms of Article 836(1) of the Code of Organisation and Civil Procedure. Pisani explained that there was no need to file a warrant against Swieqi Investments Limited because it has sufficient assets to cover. He also claimed that the garnishee order was not justified and was excessive since it dealt with a right of passage over his property. He explained that under the previous owner of the property, there was a verbal agreement with the Azzopardi family that they were to pass through this passage only with their consent. Pisani claimed that the Azzopardis had an alternative passage. Pisani further explained that he blocked the passage to identify who was making use of the passage and put in controls. Pisani complained that the garnishee order was a serious inconvenience since they blocked his accounts and credit cards. The Azzopardis replied by saying that they filed the garnishee order to protect their claim of damages Pisani allegedly caused them. It was not true that Swieqi Investments Limited has sufficient assets to cover the claim, because only €995 were found in their account, and furthermore, the relationship between the company and Pisani is unclear. The Azzopardis explained that they took the necessary spoliation action in order to continue with their right to use the passage in question. The Court analysed the facts of the case, where the parties are already locked in litigation proceedings, where the Azzopardis are alleging that Pisani illegally blocked their right of passage to their property. It is not contested that the Azzopardis used the passage and that Pisani installed a remote control system on the gate, but failed to offer a copy of the remote control. Subsequently the Azzopardis filed a garnishee order for €20,000, but only €995 was deposited in court by the banks. In Pisani's testimony he stated that he did not pass the remote control because the Azzopardis did not want to sign that they were using it on tolerance. Joe Azzopardi told the court that his family inherited land beyond Pisani's and he always remembered to pass to his land from the passage through Pisani's property. Adrian Azzopardi held that he used the rooms in his property as a store for his business, but was now unable to do this. The Court quoted Article 836(1)(c)(d)(f) of the Code of Organisation and Civil Procedure, which regulates counter warrants and held that the causes of the litigation are to be investigated in other court actions, and the application should not affect these other actions. This was established in previous court judgements such as Vincent Mercieca -v- George Galea of 29 November, 2001 and Technobroadcast srl -v- Mediterranean Broadcasting Limited of 5 June, 2007. In Casino-for-Me Limited -v- Chartwell Games (Malta) Limited of 5 September, 2008, the court had decided that a person had a right to protect his/her claim, as for example damages resulting from spoliation. The court criticised the Azzopardis in that the amount claimed was excessive, as it was unclear how much was suffered when Pisani installed the remote control system, which effectively blocked the passage. Although there could be a case of damages, the amount sought was excessive. No schedule of damages was presented in court. On this ground the court reduced the garnishee order to €5,000. With regard to Pisani claiming that he has sufficient assets to cover the claim, the Court commented that Pisani limited himself to the value of the property. There was no evidence that the property was freehold or the searches were not presented in court. With regard to Pisani's request for the garnishee order to be revoked the Court held that he would have to prove that there was a change of circumstances that would allow this. In this respect there was no change in circumstances apart from the amount mentioned in the warrant. Ms Justice Schembri Orland, then dealt with the request for the Azzopardis to be ordered to pay a penalty for filing the garnishee order and said that this is totally in the court's discretion. This penalty is intended to ensure that the court proceedings are taken seriously and for one not to abuse by instituting precautionary warrants. The court criticised Pisani for not producing evidence and a declaration that he is the owner of a property is no peace of mind, especially when he did not have €1,000 in liquid cash. Therefore, it was not proved that the Azzopardis abused the system by filing for a garnishee order. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the "construction of a washroom" on a roof pertaining to a multi storey building in St Christopher Street, Valletta, was turned down by the Environmental Planning Commission after it held that "the proposed development runs counter to Structure Plan policy UCO10 in that it would adversely affect views of the Urban Conservation Area and detract from the traditional urban skyline." Moreover, the Commission stated that "the development would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas in conflicft with Structure Plan policy UCO6", adding that the proposed interventions would "affect the roofscape, skyline and views towards the area, running counter to Grand Harbour Local Plan policy GV15." In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, arguing that "a great number of other washrooms have been approved on the roof in question". The applicant further contended that his proposal would therefore have no impact on the existing roof scape. Moreover, reference was made to a number of precedents, where similar interventions were granted a permit. As a final point, the applicant concluded that there was no objection on the part of the Cultural Advisory Committee (which is entrusted with giving recommendations with respect to development proposals concerning old buildings) with respect to his proposal. The case officer representing the MEPA, while recognising that a number of permits were issued for the construction of similar roof structures within the same block (indeed, the last permit pertaining to a 2009 application), observed that the Commission had subsequently turned down a similar request (for a similar intervention on the same roof) which was made in 2013. On a separate note, the case officer hinted that the Superintendence of Cultural Heritage filed an objection against the development in question, "notwithstanding the existing planning commitments on site." In conclusion, the MEPA officer reiterated that the proposed interventions "would negatively affect the skyline, roofscape and views towards the area" from the Grand Harbour. In its assessment, the Tribunal took immediate note of the fact that the proposed washroom would, contrary to MEPA's view, be "visually contained" since its location is surrounded by built structures on three sides. Against this background, the Tribunal ordered the Authority to issue the permit on condition that the proposed washroom is receded eight metres from the façade and "no structures or services are allowed on the roof of the washroom". robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law Robert Musumeci MEPAwatch Valletta washroom approved at appeals stage Tribunal took note of the fact that the proposed washroom would be "visually contained" Court upholds garnishee, but reduces amount