Issue link: https://maltatoday.uberflip.com/i/646116
46 maltatoday, SUNDAY, 28 FEBRUARY 2016 Opinion T he First Hall of the Civil Courts held in its judgement of 24 February, 2016 in Gordon and Charlene Farrugia –v- Aldo Farrugia, that if one is to interpret a contract one sees the wording of that contract and not other evidence that may be produced. In their application Gordon and Charlene Farrugia explained that they purchased an apartment in Zurrieq together with half of an undivided roof. The contract was signed on 11 January, 2007. In resulted that Aldo Farrugia had purchased on 2 January, 2006 another apartment together with a part of a divided roof, which part is on the back of the same roof. However, the contract did not include the plans in order to indicate this part of the roof. When the plaintiffs realised this, they tried to reach an agreement with Aldo Farrugia, but he is occupying more space on the roof than he should. However, the plaintiff argued that from the contracts it is clear that the intention was that the parties share a half of the divided roof, since they were the only two owners of the two apartments. They therefore asked the court to divide the roof amongst them equally. Aldo Farrugia filed a statement of defence, stating that the action cannot succeed because the roof was sold as divided and as such there is no undivided part of the roof. Apart from this the defendant developed part of the roof and the plaintiffs did not object as per Article 571 of the Code of Organisation and Civil Procedure. The Court held that what is being asked is to divide a roof amongst the parties of the case. The Court further held that contracts should be executed in good faith, however, the interpretation of a contract, should not depend on testimony or clarification on the part of the parties of the contract. In a previous judgment General Cleaners Limited -v- Accountant General, decided on 29 November, 2001, the court had established that the general principle at law and as mentioned in Article 1002 of the Civil Code, which states: "1002. Where, by giving to the words of an agreement the meaning attached to them by usage at the time of the agreement, the terms of such agreement are clear, there shall be no room for interpretation." Therefore, what the parties write in the contract should be respected. On the other hand according to another previous judgement Dr Joselle Farrugia -v- Pascal Demajo decided on 9 December, 2002, when the words on the contract do not compare to the intention of the parties, therefore the intention of the parties should prevail. The interpretation of a contract is done in accordance with Article 1002 of the Civil Code and therefore, the interpretation should be extracted from the contract itself and not from evidence external to the written agreement. In this particular case the defendant purchased his property a year before the plaintiffs purchased their property. The words half of a divided roof at the back of the roof is clear. If the defendant purchased the half divided share, there is no reason to proceed further. Therefore, the court moved to dismiss the claim. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Interpretation of a contract is taken from the wording of the contract A planning application contemplating the relocation of a fuel station to San Giljan was approved by the Malta Environment and Planning Authority subject to the applicant committing himself to "decommission" a kerb side fuel station operating elsewhere. T he applicant had said that he acquired "rights" to decommission the fuel station, by means of a private writing dating back to 1996. The applicant also held that he was duly authorised by the Malta Resources Authority to transfer the licence from its present location to the proposed site. Following the permit approval, a third party lodged an appeal before the Environment and Planning Review Tribunal, alleging that she was "the owner of the service station whose relocation and decommission is being proposed by way of the application." The objector pointed out that the applicant "knows very well" that she is the owner of the petrol station destined to be decommissioned, so much so that he pays her a yearly rent. Whilst insisting that she never gave her consent for the applicant to proceed with the application, the objector added that "no notices were affixed to the old petrol station and no declaration of ownership was made relative to the same". The appellant went on to allege that such a tactic was tantamount to "a stratagem" devised to deprive her of her right to object against the proposal. In its assessment the Tribunal concluded that the objector's aggravations were conducive to civil rights, which in turn go beyond planning considerations. As to the allegation stating that the notice was not duly fixed, the Tribunal held that the objector was fully aware of the on goings, so much so that an appeal was lodged against the permit in due time. In the circumstances, the Tribunal threw out the appeal. Following the Tribunal's decision, the objector appealed to the Court, insisting that "the application was approved even though the applicant failed to issue the requisite notifications correctly". Moreover, the objector underlined that the application is null and void "in that the applicant requested the decommission and relocation of the appellant's property without receiving her consent and in fact without even filling the appropriate declaration of ownership confirming his title on the property." In its assessment, the Court held that the "decommission" of a petrol station amounts to a substantial change of use and thus requires a planning permit in terms of law. Now, according to the same law, the consent of the relative owner is required prior to a planning application being processed. In this case it was clearly evident that such consent was not forthcoming. In conclusion, the Court held that the Tribunal was wrong to maintain that the "decommission" of the existing fuel station did not amount to a "development" in terms of law. Against this background, the Court ordered the Tribunal to reassess the case in light of the above. 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 'Stopping' use amounts to a change of use The interpretation of a contract is done in accordance with Article 1002 of the Civil Code and therefore, the interpretation should be extracted from the contract itself and not from evidence external to the written agreement Malcolm Mifsud mmifsud@mifsudadvocates.com.mt wording of the contract mmifsud@mifsudadvocates.com.mt wording of the contract wording of the contract Owner consent for "decommissioning" was not forthcoming