MaltaToday previous editions

MT 3 April 2016

Issue link: https://maltatoday.uberflip.com/i/661117

Contents of this Issue

Navigation

Page 49 of 55

50 maltatoday, SUNDAY, 3 APRIL 2016 Opinion P ersons who claim that they had already paid their debts in cash, still have to prove the payment, if they are faced with a claim that the payment was not made. This was decided by the Court of Appeal in Peter Saffrett –v- Darren Galea on 23 March, 2016. The plaintiff had originally claimed before the Magistrates Court that Galea owed him €5,140 for merchandise that he had sold him. Galea rebutted the claim, saying that he did not owe Saffrett the money, but that Saffrett owed him. However, the magistrates' court in its judgement of 25 May, 2015, awarded the plaintiff €3,600 representing the merchandise sold. The magistrates court said the claim was divided into two, the first for the supply of cakes and sweets amounting to €3,655.72, while €1,540, was with regard to equipment passed on to the defendant. The defendant did not contest that the plaintiff sold these products to him and that a certain Antoine Camilleri had signed for them on behalf of the defendant, but held that he paid all the invoices but one. However, the plaintiff insisted that there were more than one invoice pending, which represented three months in 2011. The defendant argued that the dispute arose on the returns, which the plaintiff had to accept. However, this was denied by the plaintiff. The plaintiff however, did not manage to prove that the defendant had to pay for equipment he had given to the latter. The court ordered that Galea pay Saffrett €3,600. Galea then appealed the judgement, however, in one of the sittings added another ground of appeal, that he had no legal relationship with the plaintiff. However, his written grounds of appeal included that the first court did not evaluate the evidence well. Galea quoted from Paul Buttigieg –v- Anglu Saliba of 15 June, 2011, which stated that although the court of appeal does not usually review the court evaluation of the evidence, when it is manifestly erroneous, then the court of appeal should do so. The defendant, argued that this was such a case. The defendant under oath had complained to the court he had paid the invoices and that he had given cheques to the plaintiff 's suppliers which were used as payments for these invoices. The Court pointed out that according to Article 562 of the Civil Code, the person who alleges must prove and must produce the best evidence (Article 559). The Court pointed out that most of these invoices cover the period between May and July 2011, while three were not dated and some of which were addressed to the clients of the defendant, Galea. Furthermore, the first invoice presented was signed by Galea, while the rest were signed by Antoine Galea, who was authorised by Galea to sign for the supply of goods. The Court held that Saffrett's testimony was more credible, since it was backed by signed invoices. On the other hand Galea did not deny that the invoices presented represented goods delivered to him, in fact, it was Galea who gave Saffrett the invoice book to use. The defendant's complaint was that these invoices were already paid. He offered to present the cheques proving payment of these invoices. However, the cheques presented were dated before the dates of the invoices. The Court held that the First Court was correct to discard these cheques. The Court of Appeal was not convinced that other cheques presented by the defendant were not payments for these particular invoices presented by the plaintiff. Most of these cheques were post dated cheques and therefore, the defendant could not connect the cheques with the invoices. Faced with this the Court held that the onus fell on the defendant to prove that he had already paid these invoices. The defendant held that at times, he paid in cash. If this was the case, the defendant must prove how much was paid in cash and for which invoices. With regard to the issue whether returns were accepted by the plaintiff, it was clear that there was no agreement. The plaintiff held that there was no agreement for him to accept returns of cakes which went bad, although in some occasions he did accept them. The plaintiff insisted there was no agreement to accept them every time. The defendant insisted on this but failed to present invoices showing this verbal agreement. The Court criticised the disorganised way both parties worked, but the plaintiff all the same managed to prove his case. The defendant, however, although he had tried to show the court that he was an organised businessman, proved the opposite. He did not manage to connect payments with specific invoices. He was meant to keep a record of payments and invoices, which clearly he did not do. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Cash payments still have to be proved A planning application was submitted with a view to sanction a garage "as built" and use same for the parking of coaches. The premises are located in a residential area, thus regulated by policy SMHO 02. Eventually, the request was turned down by the Environment and Planning Commission on a number of grounds. In its decision, the Commission made express reference to Structure Plan policy BEN 1 which, in turn, seeks to protect the amenity of existing and planned uses in the area. Furthermore, the Commission referred to policy 6.15 of Development Control Policy & Design Guidance 2007 which limits the internal height of domestic garages to 4.3 metres. In this case, the height of the garage was evidently not compliant with the policy. Moreover, it was observed that the proposed development would remove the existing parking space for the overlying dwelling. Concluding on a different note, the Commission said that the proposal was deemed objectionable from a sanitary point of view since the backyard was roofed over by a glazed cover. Following the above decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant contended that the garage in question was constructed in the mid 1980s with a clear intention to accommodate commercial vehicles. On this point, the appellant argued that the garage was "built on more courses than a garage intended for the parking of private cars would have." Furthermore, it was highlighted that "the said coaches are Euro V coaches having low emissions and the noise they produce when in action is very low." As to the envisaged parking loss, the appellant contended that the garage and the overlying tenement pertain to different owners. With regard to the backyard, the appellant noted that the alleged irregularities were removed For his part, the case officer submitted that no evidence was forthcoming to show that the illegalities in the backyard were removed as contended. More so, the officer reiterated that the proposal runs counter to Structure Plan policy BEN 1 and Local Plan policy SMHO 02. In conclusion, it was highlighted that "the appellant's premise that the garage was always built to accommodate large vehicles does not afford a vested right since the garage was constructed illegally in the first place". In its assessment, the Tribunal confirmed that the garage is located in a residential area. Subsequently, it held that the proposed use (parking of coaches) is not specifically included in the list of acceptable uses within residential areas and went on to confirm the decision. 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 Parking of coaches not allowed in residential area Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Appellant contended that the garage was constructed with a clear intention to accommodate commercial vehicles

Articles in this issue

Archives of this issue

view archives of MaltaToday previous editions - MT 3 April 2016