Issue link: https://maltatoday.uberflip.com/i/570058
50 maltatoday, SUNDAY, 13 SEPTEMBER 2015 Opinion A company which is being investigated by the US Securities and Exchange Commission will be given access to the clients' account it holds at Bank of Valletta after an investigation and attachment order is withdrawn. This was ordered by Ms Justice Lorraine Schembri Orland on 25 August, 2015 in Exante Limited -v- Bank of Valletta plc. The company in its application held that it is licensed by the Malta Financial Services Authority "to provide any investment service and to hold or control clients' money or customers' assets, but not to deal for their own account or underwrite". As part of the business, the company opened a number of bank accounts at BOV, some in its own name and others in the name of the clients. Exante, in accordance with the Investment Services Act opened a clients' account and deposited money that is not Exante's but money that belongs to clients. In fact the Investment Services Act (Control of Assets) Regulations provides for this and stipulates: "3(1) A subject person having the control of assets belonging to a customer in the course of rendering an investment service, to such customer, shall hold such assets solely for and on behalf of and in the interest of the customer." On 10 August, 2015, the US Securities and Exchange Commission filed a complaint against Exante with the District Court of New Jersey. The company stated that the charges are baseless and in fact described the company erroneously as a hedge fund, when it is not and it is simply a broker. The company has engaged a law firm in Washington to defend its interests in the US. On the basis of this BOV, without receiving instructions or notifications, froze the company's accounts, including the clients' account, which is not the company's monies. This situation has caused the company to be in breach of its MFSA licence and therefore deemed to be illegal. If BOV wanted to protect its position following the US investigations, it should have, according to Exante, frozen only its accounts and not the clients' account. Therefore, the plaintiff company asked the court to declare the bank had acted illegally and abusively and order BOV to have immediate access to the clients' account. The bank defended itself by submitting that it acted according to law and according to the terms and conditions when the accounts were opened. The bank agreed that the company has a number of accounts named clients' account, but has no information on who the clients are and which sum is of which client. It not in a position to state whether the money held in these accounts are in fact of third parties. More importantly the bank had no information whether any of the monies held in these clients' account belonged to any person investigated by the US Securities and Exchange Commission. The bank also confirmed that it became aware of the proceedings in the US and as such had a legal right to take the action, as it did. In the court proceedings the parties to the case minuted that the plaintiff company had received from the Criminal Court that their accounts were subject to an investigation and attachment order. The bank submitted that when this order is withdrawn, as long as there is no other order, the company will have access to its clients' account. This was being done without admitting that the bank acted illegally. The plaintiff company then withdrew its first request to the court to declare that the bank acted illegally. Ms Justice Schembri Orland, after seeing the minute of both parties in the proceedings and the attachment order, held that it was upholding the second request of Exante, and therefore, allowing it access to the clients' account immediately after the Criminal Court's order is revoked or withdrawn. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "To sanction extension of existing Class 4 shop by incorporating part of the existing adjoining garage" in relation to a commercial establishment in Gozo was approved by the Environment and Planning Commission subject to a payment of €8,385.74 in compensation for lack of on site parking. According to the Commission, the proposal entailed an additional commercial area of 139 square metres, which in turn translated into the need of three additional parking spaces (one parking space per 50 square metres of extended commercial area). The applicant appealed the Commission's decision, insisting that the Malta Environment and Planning Authority should have charged him the equivalent of two parking spaces. The applicant went on to explain that the proposal contemplates an additional 67 square metres of commercial space whereas the "additional" 46 square metres were to be used as stores, not accessible to the public. On its part, the Authority rebutted the appellant's arguments, stating that the parking contribution was correctly calculated since "the areas indicated as stores are interlinked with the rest of the shop and therefore considered as part of the "gross lettable floorspace" which is accessible for customers as per Structure Plan Explanatory Memorandum (1990) and PA Circular 3/93." In its assessment, the Tribunal agreed with the ratio presented by the Authority. The Tribunal made reference to Structure Plan Policy TRA 4 which expressly provides that "where a development is not required to meet full standards, the cost of providing the shortfall of spaces in public parking facilities shall be a requirement of the development". In this case, the Tribunal noted that the proposal consisted of a new retail area totalling 67 square metres and stores covering 72 square metres. The Tribunal held that the "gross lettable area" should include the storage area for purposes of parking computation. Nevertheless, the Tribunal maintained that the applicant should not have been made to pay the equivalent of three parking spaces since the additional commercial area totals 139 square metres, whereas the applicant was in fact charged for three parking spaces (namely, the equivalent of 150 square metres). In the circumstances, the Tribunal concluded that the payment should be revised "pro rata", thus reduced to €7,924.53 instead of €8,385.74. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree. Robert Musumeci MEPAwatch Tribunal reduces parking contribution 'pro rata' "'Gross lettable area' should include the stores for purposes of parking computation" Court orders access to clients' account following an attachment order