Issue link: https://maltatoday.uberflip.com/i/770367
46 maltatoday, SUNDAY, 8 JANUARY 2017 Opinion A Court presided by Magistrate Marse-Ann Farrugia held that the defects found in a second-hand car must have been known to the buyer when he bought the car and as a result the sale was valid. This was decided on 14 December, 2016 in Emanuel Cassar -v- Stephen Farrugia. Emanuel Cassar, the plaintiff, asked the Court to order Stephen Farrugia, the defendant, to pay Lm900 (€2,096.44) which represents the price of a Mazda sold in August 2003. The plaintiff alleged that his consent to the sale was obtained fraudulently and that the car was not the agreed quality, as it was not roadworthy and not insured. Farrugia filed a statement of defence, where he rebutted the claims. In evidence submitted to Magistrate Farrugia the plaintiff claimed that the defendant had told him that the car was in good working order and was never involved in an accident and the licences and the insurances were paid. He then paid Lm900, but the defendant told him to cover the windscreen because the road licence was not paid. The plaintiff wanted to be refunded but the defendant refused. When he took possession of the car, he found the inner panel broken and the engine was not working well The defendant's version is different, in that according to him, he had told the plaintiff that the licence had still to be paid. He also testified that the plaintiff had driven the car before buying it. The car had belonged to the defendant's aunt and the licence was last paid in 2001, but the insurance was paid. The Court then dealt with the legal implications of the case, the first being whether the car should have been deposited in court. According to a previous judgement, David Pace -v- Tony Vella decided on 12 November, 2013 by the First Hall of the Civil Court, the Courts have always held that for the purchaser to refuse the object sold, if it is not according to the quality agreed upon, it is to be deposited in court. In fact, in this case it was minuted that the car was in fact deposited in court, which fact was not contested. The Court then quoted Article 981 of the Civil Code, which reads: "(1) Fraud shall be a cause of nullity of the agreement when the artifices practised by one of the parties were such that without them the other party would not have contracted. (2) Fraud is not presumed but must be proved." The Court then quoted a judgement decided on 6 December, 2002, Ian Busuttil et -v- Carmen Taliana, which held that for this action to be successful, the plaintiff must prove bad faith of one of the parties. Furthermore, the plaintiff would have to prove that for the fraud to exist, the contracting party, if aware, would not contract the sale. The Court pointed out that the defendant had insured the vehicle from August to December 2003, but the licence was never transferred. Furthermore, the plaintiff held that when he purchased the car he did not test drive it, but this was denied by the defendant. The Court further pointed out that according to a written agreement between the parties, the plaintiff left a balance of Lm70 to pay. Magistrate Farrugia held that she did not believe that the plaintiff did not try out the car before buying it, neither did she believe that the car was not inspected. Apart from this it would have been easy for the plaintiff to verify that the licence was not renewed, since it was fixed on the windscreen. The Court quoted from another judgement delivered by the Court of Appeal, Bank of Valletta -v- Dalli Brothers Limited, which listed the elements of fraud, the first being that there must be fraudulent acts, the second that these must be grave, then they must be determinate for the business, the last element is that these acts must be carried out by the other party. The Court concluded that these elements were not proved by the plaintiff. The plaintiff also based his action on the fact that the car was not of the quality he sought when he bought it, since it was not registered to be driven nor was it insured. The Court also disagreed, since these were easily verifiable. The Court then moved to dismiss the claim against the defendant. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application entitled 'To sanction construction of agricultural stores as ancillary facility to agricultural holdings', located in the limits of Mellieha, was rejected by the Planning Commission after it was found that the site was characterized by 'another unauthorized storage building' which was shown on plans. Moreover, the Commission held that the applicant was in possession of other structures within the site, the footprint of which exceeds the maximum storage to which he is entitled. Subsequently, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the existing structures are essential 'in order to till the agricultural holdings'. The applicant explained that the stores are used 'to house agricultural implements used for the daily tilling of the fields.' The applicant went on to state that he has been registered as a full time farmer for a number of years, 'along which he accumulated a considerable number of agricultural machinery items and implements.' Furthermore, the drawings showed a fodder store having a considerable f loor area. Yet, the applicant insisted that this store was required since he ' breeds his animals in an organic manner.' In reply, the case officer representing the Authority argued that the Tribunal cannot hear and decide on the merits of the appeal 'as this application does not seek to sanction all illegal development on site in the form of a room adjacent to the one being sanctioned.' The Authority made express reference to Article 14 (1) of Legal Notice 514/10 which states that 'where illegal development is present on a site, new development on that same site cannot be considered unless it is regularized.' This means that prior to assessing an application, the applicant is bound to remove all illegalities which the applicant has no intention to sanction. But even so, the Authority noted that that applicant was in possession of a number of rooms which were built prior to 1967 (thus, considered legal) and which should serve applicant's scope. In its assessment, the Tribunal noted that the Authority was correct to observe that the appellant possessed an illegal room which was not shown on plans. Moreover, the Tribunal concluded that the proposal was in violation of current rural policies since the applicant was in possession of other storage rooms located within his holdings. Against this background, the Tribunal rejected the appeal. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Farmer already in possession of storage rooms Robert Musumeci Where illegal development is present on a site, new development on that same site cannot be considered Court turns down claim that sale of car was null Malcolm Mifsud mmifsud@mifsudadvocates.com.mt