Issue link: https://maltatoday.uberflip.com/i/933296
50 maltatoday SUNDAY 28 JANUARY 2018 I f a debtor hints that he will pay in the future, this is sufficient to interrupt prescription. This was held in a judgment delivered by Madame Justice Jacqueline Padovani Grima on 22 January 2018 in V&C Contractors Limited -v- Tlata Limited. In their application V&C held that it is owed €49996.15 by Tlata Limited, which is a balance of a current account between the two companies and therefore, asked the court to order the defendant company to pay up. Tlata filed a statement in defence claiming that the action is time barred in accordance to Article 2149(a) of the Civil Code and that it does not owe any money to V&C. The Court analysed the evidence brought before it. Starting, Kevin Callus, company secretary of the plaintiff company, said that one of his duties is to issue the invoices. The company had taken some building material from the defendant company and rented equipment from it. They then carried out excavation works for the defendant company and therefore, had a set-off system between the two. In 2011 Callus reconciled the accounts and found that his company was owed money. He explained that €29,565.51 is the balance following the set-off and a further €20,000 represents VAT. He also said that a certain Paul of Tlata always said that they will pay. He denied refusing to issue fiscal receipts and explained that they first have to be paid. This was corroborated by Vincent Board, the director of V&C. He also explained how he rang Paul Falzon of Tlata asking for the money. Falzon accepted to pay, however, he said that the bills were at his accountant. Paul Falzon explained that his company acts as subcontractors to other companies and when they cannot cope with the assignments, they engage other companies. This is what happened with V&C. There was a dispute on some bills until an agreement on how the work was to be charged. He testified that the plaintiff company refused to issue VAT receipts and lost €16,000 in expenses on which it could have claimed the VAT back. The Court then analysed the legal issues. In a previous judgment Benny Camilleri -v- Ian Schembri et decided on 16 December 2002, it was held that when the debtor says that an arrangement will be made (jghidli li se jirrangaw"), then one would be justified to understand that payment will be made. In another judgement Patrick Staines noe -v- Charles Falzon et noe decided on 3 October 2002, when the debtor admits that payment is due, then he renounces from the plea of prescription. In this particular case, although the defendant company claims that no money is due, in actual fact, Paul Falzon did concede that money is due. The court then rejected the plea of prescription. The Court made its calculations on what is due and listed the amounts which were being contested. The Court quoted from a previous judgment Carmelo Farrugia -v- Rokko Farrugia decided on 24 November 1966, which discussed the conflict of evidence. Not all conflicts should leave the court perplexed. The Court should analyse in detail the evidence and see which version is more credible than the other. It is not for the judge to believe the explanation, but whether the explanation is plausible. In choosing which of the conflicting evidence is to believed, the judge would have to see whether any was corroborated by other facts. The Court pointed out that the plaintiff company presented copies of invoices, which were the balance following a setting-off process. In the meantime, the defendant company explained where it did not agree with the amounts the plaintiff company was claiming. This was not contradicted by V&C. The Court pointed out that an invoice was in actual fact due to another company. The Court felt that the plaintiff company did not sufficiently prove its case, while the defendant company presented a credible version, which contradicted the plaintiff company's version of events. On the other and it was proved that the defendant company did owe VAT amounts and the court ordered it to pay V&C €20530.71, but upheld the pleas for the other amounts. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion A development planning application contemplating the reconstruction of an old room on the same footprint together with the construction of an underground water reservoir and the reinstatement of a boundary wall was turned down by the Planning Commission. The site in question consists of a field located outside the Ghaxaq development zone. In its decision, the Commission held that the proposed reservoir ran counter to criteria 1 of policy 2.7 A of the Rural Policy & Design Guidance (RPDG) 2014 since the land was not 'registered' on applicant's name. Moreover, it was alleged that the present topographic levels were not correctly indicated in the scaled drawings. The Commission, however, did not object to the rebuilding of the existing room. In reaction, applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that he was both a shareholder and director of A. M. J. Investments Ltd. Applicant, now appellant, explained that the said company owned the land in question whereas he was 'recognised' as a farmer. Appellant argued that the reservoir was required 'in order to collect rain water runoff that otherwise would be dispersed at sea' since 'every agricultural land (if it is being cultivated) requires that it is watered, irrespective of whether it is registered or not'. It was also highlighted that should the request be denied, 'the source of water irrigation would come from boreholes'. Using this logic, the Commission's decision went contrary to 'good environmental principles'. Concluding, appellant rebutted the Authority's allegations purporting that the site levels were incorrectly shown. In reply, the case officer representing the Planning Authority maintained that claiming to find a solution by 'illegally extracting water form a borehole' was not acceptable. The case officer reminded that 'water extraction' is not permitted at law. In addition, it was pointed out that new water reservoirs may only be permitted if prior clearance from the Agricultural Advisory Committee (AAC) and from the Environment Resources Authority (ERA) is obtained. The case officer reiterated that the drawings failed to ref lect the situation on site and went on to allege that the levels were 'adjusted' so as to ' justify' the construction of the walls. In its assessment, the Tribunal made reference to Policy 2.7A of the Rural policy guidance, which inter alia provides that "new reservoir/s for rain water harvesting may be permitted provided that the structure(s) is/are located on registered land but shall not be located on land supporting important natural habitats'. The Tribunal observed that 'registered land' should be construed as 'land registered with the Agricultural Directorate'. In this case, appellant had submitted documentary evidence attesting that he was indeed a registered farmer. More so, the Tribunal was surprised to learn that the Authority had not expressed concern with regard to the rebuilding of a room above soil level whereas it found objection to the construction of an underground reservoir. Against this background, the Tribunal ordered the Authority to issue the permit. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud A hint of acceptance of a debt interrupts prescription Company director recognised as farmer