Issue link: https://maltatoday.uberflip.com/i/706995
46 maltatoday, SUNDAY, 24 JULY 2016 Opinion A court held that no new evidence can be produced at the submissions stage of a lawsuit. This was pointed out in a judgement delivered by Mr Justice Joseph Zammit McKeon in Martin Cassano -v- Alessandro sive Sandro Cassano on 14 July, 2016. The plaintiff held that his father's inheritance is regulated by a will made on 26 August, 2003. In the will his brother, the defendant, had to pay Lm17,000 to each of his brother and sisters as compensation for being assigned a property. The plaintiff had purchased from his co-heirs his father's BMW for Lm6,000, which had to be reduced from what was owed to him by his brother. He asked the court to order his brother to pay Lm13,500. The defendant filed a statement of defence where he pointed out that this action cannot succeed because the same plaintiff and his sisters are challenging the validity of the will which gives them Lm17,000 each and therefore, if the will is not accepted the plaintiff cannot benefit from part of it. Mr Justice Zammit McKeon, analysed the evidence produced. The plaintiff had testified that his father had assigned his brother two properties in Birkirkara, but imposing upon him the payment of Lm17,000 each to his brother and two sisters within five years. He further explained that he was interested in purchasing a BMW which was part of the inheritance and paid Lm6,000 which was to be reduced from the Lm17,000 he was owed. He agreed that there was another lawsuit with his brother, but this referred to the extent of the legacy. The plaintiff 's two sisters also testified and confirmed the plaintiff 's version of the events. The defendant testified by informing the court that there was another action instituted by the plaintiff, in which he was challenging the validity of their father's will. He admitted that he has to pay Lm17,000 to his siblings, but said he had given Lm7,000 to his brother, the plaintiff, and therefore, there is a balance of Lm10,000 to paid. He produced a private writing on this point. He explained that this sum was not paid because of the other actions instituted against him. The court examined the parties' father's will which held that the defendant was to hand over Lm17,000 to each of his other three children. From the evidence the court concluded that the bones of contention were that although the defendant admitted that he had to pay the plaintiff, the amount was in dispute and that he wanted that the sum be paid after the litigation on the will was concluded. The court disagreed with the defendant that the other action was challenging the validity of the will. From the acts of the case, the parties have accepted the inheritance. What was in dispute is whether a property forms party of the legacy that the defendant was assigned by his father. The court pointed out that the defendant could not argue that he should not have paid the Lm17,000 because he did not formally take possession of the property bequeathed to him. In fact, during these proceedings a judgement was delivered that this other property did not form part of the legacy. With regard to the amount owed, the court held that there are two versions on what is due. The court quoted a Court of Appeal judgment Xuereb -v- Gauci et of 24 March, 2004, which held that when there are conf licts of versions of events, the court should see which version is more credible. In the present case the value of the BMW had to be set off against what the defendant owed the plaintiff. In the initial application one sum was mentioned, however, in the plaintiff 's affidavit another sum was mentioned, then in the submissions, it was mentioned that the plaintiff paid Lm1,000 in repairs on the vehicle. This was not corroborated. Then the court concluded that the defendant should pay Lm10,000 as mentioned in his testimony. The court ordered the defendant to pay the plaintiff €23,293.73 representing the Lm10,000. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Evidence cannot be produced in submissions A n outline planning application was submitted way back in 2004 'to consolidate a chateau and administration quarters' in Bidnija. The submitted drawings show an existing building forming part of an established vineyard. The architect had highlighted that the existing building was covered by an old permit which was issued in the 1970s. Indeed, the drawings show a proposed two storey complex. The outline application was approved, however on condition that 'the permission is only for the lower ground f loor and upper ground f loor." In other words, the upper construction at second f loor level was not accepted. Following the decision, the applicant appealed to the Environment and Planning Review Tribunal. In his appeal submissions, the applicant argued that the Authority failed to observe that 'the completed two-f loor building would not exceed the existing wall along the street and thus not be visible from there.' In addition, the appellant highlighted that he was 'hit by the revision of the relative policies or the emanation of new ones' due to MEPA's s unjustified delays in processing the application. It was further pointed out that applications of a similar nature, which were applied for at the same time and later, were given the green light by the Authority. The applicant went further to state that in his case, the application 'should have a stronger claim for approval in its entirety because it purports to complete a building previously owned by Marsovin Ltd in the 1960s which was however half completed.' Concluding, the appellant described his proposal as 'an iconic building that serves both the image of the wine producing function and the tourism attraction function.' The appeal was nonetheless turned down by the Tribunal, following which the applicant appealed the Tribunal 's decision before the Court of Appeal (Inferior Jurisdiction) 'on a point of law'. The applicant complained, inter alia, that the Authority's first decision was delivered in 2004 under a different policy regime while the Tribunal 's decision was eventually given nine years later (in 2013) based on a different policy regime. Concluding, the court found in favour of the appellant and ordered the Tribunal to ascertain whether the appellant could have been possibly prejudiced once the policies had changed during the application process. Subsequently, the Tribunal took note of the court's decision and concluded that the Planning Authority should reassess the application in line with the policies which were existing at the time when the application was originally submitted – namely, in 2004. 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 Application to be reassessed in line with 2004 policies Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Architect describes his proposal as 'an iconic building that serves the image of the wine producing function' The court concluded that the bones of contention were that the amount was in dispute and that the defendant wanted to pay the sum after litigation was concluded