Issue link: https://maltatoday.uberflip.com/i/814533
48 maltatoday, SUNDAY, 23 APRIL 2017 Opinion S ervices rendered to an aunt by her niece are to be compensated for, even if small amounts of payment were already made by the latter to cover certain expenses. This was decided by Judge Joseph R. Micallef on the 11th April 2017 in Mary Briffa vs. Consiglia Abdilla. Briffa claimed that for a number of years she took her aunt under her care, particularly due to the fact that the latter used to live alone as a spinster and was suffering from bad health. She not only used to assist her at her own house, attending to her twice a day, but for some years Abdilla also started living and sleeping at Briffa's house. When Abdilla was taken to hospital, her niece continued to render her services by bringing her food to hospital which she used to prepare herself. The defendants – the heirs of Anthony Agius, who happened to be Abdilla's nephew – argued that Briffa should not be paid for the services rendered by her due to the fact that when such services were rendered, there was no intention from her end of getting paid for such services. They claimed that even if there was such intention, Briffa has already been paid for her services by Abdilla. The Court explained that for a person to be compensated for services rendered, there must be an element of quasi-contract and the presumption that whoever renders the services in question does so with the intention of getting paid for them. Furthermore, it has been a long-established principle that such payment should not only be due on the basis of iure actionis, meaning when it is agreed so before, but also on the basis of officio judicis, that is, when from the circumstances of the case, it is clear that whoever delivered such services wanted to get paid for them. For one to conclude whether a person had the understanding or expectancy of getting paid, one needs to consider when such services were given. This is because the circumstances which take place afterwards are irrelevant. Given the existing conflict between the two families, the Court argued that it had the responsibility of taking cognizance of the most credible and consistent of the two versions. Ultimately, it needs to decide the facts of the case on the basis of a balance of probability, as is required in civil cases. The Court concluded that here it was clear that Briffa has indeed rendered services to Abdilla. Briffa used to render her services both in her own house and also in the house of the defendant. It was Abdilla herself who asked the plaintiff to start taking care of her. When after some time, the plaintiff told her that she was going to stop rendering such services, the defendant once again asked for her assistance. Thus, the plaintiff's help was asked for and accepted by the defendant. This shows a certain level of dependency on the plaintiff by the defendant until she was taken to an old people's home. The fact that the services were based on a quasi-contract does not mean that the element of voluntariness on the part of the person rendering the service, suggested the lack of intention of getting compensated. Furthermore, the assistance provided in this case involved a level of responsibility undertaken throughout a number of months and went beyond the solidarity shown by other relatives. Were such services rendered by outsiders, it would have definitely involved a number of expenses. The plaintiff therefore satisfactorily proved to the Court that she always had the intention of rendering the services against compensation. The defendant had appointed Briffa as universal heir in a previous will, promised her compensation and used to give her a some of money every month for expenses incurred. The fact that the defendant reduced the amount of money paid does not prove that there was any agreement between them that the services were to be rendered gratuitously. As to the amount of compensation to be given to Briffa, the Court took into consideration 1. the frequency and nature of the services rendered; 2. the means of the person assisted; 3. the proximity of the relationship between the person rendering the services and the person assisted; 4. the level of responsibility undertaken by the person rendering such services; 5. the level of ability or specialisation required to render the services; 6. whether the services involved can be rendered by anyone or whether they are "di bassa lega"; 7. whether the person has incurred any other expenses when rendering the services; 8. whether the person assisted was in a state of bad health or weakness. The Court concluded, that although the defendants were right in saying that Abdilla had already paid Briffa for some of the expenses incurred by her, these payments did not cover all the services rendered by the plaintiff and for which she had a right to be paid. Therefore, she was only partly paid for the services rendered by her and the defendants were found responsible for paying her the compensation due. Dr. Malcolm Mifsud is partner Mifsud & Mifsud Advocates A planning permission was issued in 1999 to 'finish off ' structural works which had been pending in an industrial site located outside the development zone of Naxxar. Works had nonetheless continued after the said permission had expired in 2004. An enforcement notice was subsequently issued against the owners. In the notice, it was specifically indicated that a concrete roof was constructed when the permit had expired. Moreover it was alleged that the owner had constructed a concrete platform, also without a permit. In reaction, the owner appealed the notice before the Environment and Planning Review Tribunal. In his detailed submissions, the architect representing the owner argued that the site was covered by a permit "to continue and complete building works that were still under construction at the time." The said permit was issued on the 19 November 1999 and was valid for five years. It was further explained that the premises were used for the manufacture and assembly of aluminium products. The architect said that his client was "not denying" the fact that works had in fact been undertaken after the 5 year validity period. Nevertheless, it was argued that the owner had all the relative trading licenses and "the fact that the roof was not installed or completed in whole" was not tantamount to the factory not being "committed ". As regards the concrete platform, the appellant insisted that such works were considered as maintenance works which do not require a planning permit. In addition, it was maintained that "there would be no point in removing the section of the roof in question only to apply once more and reconstruct the exact same thing", more so when it was the same Authority who had not objected to the works in the first place. Concluding, appellant said that at the time, the DNO regulations allowed for the replacement and reconstruction of roofs subject by way of a simple notification. In reply, the Authority reiterated that appellant's arguments were legally frivolous. Indeed, the appellant had admitted that works had resumed beyond the five year period. Also, the Authority highlighted that a trading license does not give the holder a right to undertake construction works without a valid planning permit. In its assessment, the Tribunal however observed that in the interim period, the Authority had received an application to sanction the roofing works, following which it was approved by the Planning Commission. Nevertheless, the Tribunal maintained that the illegal platform was still not covered by a planning permit. Against this background, the enforcement notice was confirmed insofar as the concrete platform was concerned. Dr Robert Musumeci is an advocate and a perit, with a particular interest in development planning law Platform needs planning permission Robert Musumeci Malcolm Mifsud Quasi-contract services do not preclude lack of compensation A trading license does not give the holder a right to undertake construction works without a valid planning permit