Issue link: https://maltatoday.uberflip.com/i/624751
46 maltatoday, SUNDAY, 10 JANUARY 2016 Opinion A court would analyse whether there existed prima facie justification, not only when a garnishee order is issued but also when it is challenged. In Muovilmai OY –v- Project Technik Limited and C & F Building Contractors Limited, the applicant asked the First Hall of the Civil Court to order a counter warrant on a garnishee order issued on 12 October, 2015. The two Maltese companies had issue after all the parties had entered into a commercial contract. The garnishee order was filed following a damages claim against the two companies, which argued that this claim for damages does not exist and therefore should be withdrawn. In any case the two companies have enough assets to cover the alleged damages, but if it continued to be in existence, it could jeopardise the jobs of its employees. The companies asked the court to order the Finnish company to deposit money in order to guarantee their claim of damages and also to revoke the garnishee order. The Finnish company replied by saying that the scope of the warrant was to protect its interests in a claim of damages against the two Maltese companies, after they allegedly breached the conditions of the contract. Therefore, it had every right to issue a garnishee order and denied it was filed in bad faith. Mr Justice Silvio Meli, in his decree held that this action was based on Article 836 of the Code of Organisation and Civil Procedure and as such should not analyse in depth the dispute between the parties as pronounced by a previous judgement, Camilleri –v- Gove of 10 May, 2001. According to Article 836 a precautionary warrant such as a garnishee order may be revoked if one of the requisites of a garnishee order does not exist or else if there is a sufficient guarantee to satisf y the claim or else if the claim is prima facie not justified. The garnishee order froze the sum of €200,000, however, the two Maltese companies held that if there were any damages this would be much less than this sum. The court commented that the claim for damages would have to be investigated deeper by another court which is to decide on the merits of the case. Therefore, the damages claim mentioned in the garnishee order is an estimate and prima facie justified, especially if one can see the contract between the parties. Furthermore, with regard to whether the garnishee order was justifiable and reasonable, the court would have to investigate this claim from when the garnishee order was filed and whether the same reasons continued. The Court held that there was no evidence to show that the circumstances have changed. The Court then dealt with the request for a guarantee on a possible penalty that may be imposed. The court again commented that no evidence was presented. The garnishee order was filed on the ground of the contract that existed and there is no evidence to show that the foreign company was in bad faith. The court then moved to turn down the companies' request for the garnishee order's revocation. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Court uses reasonability test to see whether garnishee order is valid A development application for the sanctioning of stables in the limits of Marsaxlokk was turned down by the MEPA's Planning Commission, further to which the applicant appealed the decision before the Environment and Planning Tribunal. In his detailed appeal, the applicant made reference to a number of planning permits where stables have been permitted outside the development zone. The applicant made specific reference to a planning permit for seven horse stables and fodder stores in Birzebbugia, which was approved adjacent to a dwelling in 1995. Reference was also made to a permit for "the change of use of a building into stables to keep horses for horse riding", issued in Xaghra, Gozo on appeal in 1999, adding that "the permit was approved in view of the fact that the proposed development which consisted of stables should be located outside the limits of development as it is considered a project of agricultural nature, even though the proposal runs counter to various MEPA policies". The applicant further maintained that a permit for stables was issued in Munxar, back in 2007, in which case the site is located beyond a 300-metre radius from the development zone as required by policy at the time. Moreover, the applicant referred to another permit issued in 2007, by way of which a number of stables were approved in "an area known for its high agricultural value". The applicant thus contended that he should receive equal treatment, adding that "he was willing to increase the planting of trees for further screening if required." In its assessment, the Tribunal asserted that the proposal was not in line with the applicable Structure Plan policies, namely policies SET11, AHF5 and RCO2. Moreover, the Tribunal concluded that the permits quoted by the applicant were surrounded by different site circumstances, noting that the site under consideration was close to a residential zone. Against this background, the refusal was confirmed. Subsequently, the applicant appealed the decision before the Court of Appeal (Inferior Jurisdiction) alleging discrimination in his regard. The court nonetheless held that "equal treatment" must subsist in so far as the policy requisites permit. Moreover, the Court assessed that it had no jurisdiction to enter into the merits surrounding individual permits quoted by the applicant, and found that the Tribunal's decision was correct. 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 Court has no jurisdiction to investigate precedents 'Equal treatment' must subsist in so far as the policy requisites permit YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt The Court held there was no evidence to show that circumstances have changed