Issue link: https://maltatoday.uberflip.com/i/573382
52 maltatoday, SUNDAY, 20 SEPTEMBER 2015 Opinion T he First Hall of the Civil Court, presided by Mr Justice Joseph Zammit McKeon, turned down a plea that an action was time barred by 18 months. This was decided in Charles Schembri -v- Victor Vella. Charles Schembri in his application to Court explained that he had agreed with the defendant, Victor Vella, that he was to exchange his boat, valued at €42,000 with immovable property. This transaction never took place because there was no agreement on the property, however, the boat was transferred to Vella. In fact that boat was registered in Vella's name with Transport Malta and it is still in his possession. He had paid €8,500 of the purchase price, but the balance was not paid irrespective of the fact that Schembri had filed two judicial letters calling upon Vella to pay. Schembri asked the court to order Vella to pay €33,500. Vella filed a statement of defence that held that these proceedings were null and void and that it was time barred by means of Article 2148(b) of the Civil Code. On the merits of the case, Vella held that he does not owe Schembri any money, because he had paid €9,500 and not €8,500, which was in fact the price of the boat. Vella claimed that he did not go to buy a boat from Schembri but, after the parties agreed that Schembri would purchase three apartments and three garages, the latter wanted to pay in part with the boat and the transaction did not take place and Schembri failed to honour his part of the deal. The Court had already decided in favour of Vella, whether the action was null and void. In this judgement, the court was limiting itself to the plea of prescription. The Court examined the facts of the case, where Vella testified that there was a verbal agreement in July 2012. On 11 August, 2012, a written agreement was drawn up, where it was agreed that certain works had to take place in the apartments. A promise of sale was also drafted, but was not signed. The agreement on the boat was concluded on 11 August, 2012, which was originally part of the property transaction, however, the promise of sale of the property was never concluded. Vella wanted to return the boat, since the whole business deal fell through but Schembri refused to take the boat back. Vella accepted that it was agreed that a contract of works had to be signed together with the promise of sale, but nothing was signed. He also confirmed that he had signed a document that he was taking the boat at the price of €42,000 as part payment of the property. Mr Justice Zammit Mc Keon quoted from a judgement Stencil Pace (Malta) Ltd -v- Dr Mario Deguara noe of 30 October, 2003, which held that the party that raises the plea of prescription has to produce the evidence to substantiate the plea and the plaintiff may produce evidence to rebut this. In another judgement, Alf Mizzi & Sons (Marketing) Limited -v- Dismar Company Limited, of 12 October, 2004, prescription should be interpreted restrictively and if there is any doubt on its application, that doubt should go against the plea. Article 2137 of the Civil Code states that the prescription period starts to be applied on the day the action may be executed. Article 2148(b) reads: "actions of creditors for the price of merchandise, goods or other movable things, sold by retail." From the wording of the law, the Court held that the sale of goods by retail, refers to transactions held by persons in business and also those who are not in business. The law seeks to address the sale and not who is preforming the sale. There is also no distinction between retail and sale by bulk. In this particular case, the subject of the sale is a boat and therefore, Article 2148(b) applies. This notwithstanding that Vella is claiming that he never bought the boat. In these proceedings, there was mention that judicial letters were filed, however, no evidence was produced, neither was evidence produced that a garnishee order was filed. The case was filed on 14 February, 2014, within 18 months mentioned in Article 2148 and therefore, the court could not uphold the plea of prescription and ordered that the case continue. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A development notification requesting the "reservation" of a small area in front of a small coffee shop in Valletta in order to accommodate tables and chairs was turned down by the Malta Environment and Planning Authority (MEPA). The notification was made on the basis of Legal Notice 115 of 2007, which expressly provides that the reservation of public open spaces for the placing of tables and chairs to serve a food establishment is permitted where situated on "a pavement, public open space, garden, promenade, or belvedere". Such permits are usually issued straightaway on condition that a passage for pedestrians of at least 1.5 metres wide is left clear and unobstructed between the area reserved for tables and chairs and any other group of tables and chairs, physical obstructions, access points and the outer edge of the pavement. Moreover, the same regulations require that in the case of Valletta, such development is only permitted in areas located within the "Primary Town Centre" or "Areas of Open Space" subject to the prior authorisation by the local council and a written authorisation by the Malta Tourism Authority, the Authority for Transport in Malta and the Department of Public Lands. The applicant contested the decision before the Environment and Planning Tribunal, insisting that "the street in question is already committed to two similar arrangements with known establishments on both sides of the street, all having the right to reserve spaces for the placing of tables and chairs". The applicant therefore contended that she felt "discriminated". In reaction, the Authority submitted that the appellant failed to identify any application reference in relation to the alleged similar "arrangements". In addition, the Authority remarked that the applicant also failed to submit the necessary clearance from the Valletta Local Council and Transport Malta and thus requested the Tribunal to confirm its original decision. In its assessment, the Tribunal made reference to Legal Notice 115 of 2007 which regulates notification orders, reiterating that the placing of tables and chairs in Valletta is limitedly permitted in areas located within the "Primary Town Centre" or "Areas of Open Space", adding that prior authorisation by the local council and Transport Malta is necessary. The Tribunal held that the Authority was correct to turn down the applicant's request since such documentation was not forthcoming. But even so, the Tribunal observed that the two catering establishments mentioned by the applicant were indeed covered by a Development Notification Order since the respective owners – unlike the applicant – managed to secure the required written consent from the local council. Nevertheless, the Tribunal concluded that once no specific clearance was issued by the local council in applicant's case, the Authority is not in a position to entertain her request. 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 turns down request for tables and chairs in Valletta "Neighbouring owners managed to secure the required written consent from the local council" Court rules that verbal agreement to exchange a boat with property is not time barred