Issue link: https://maltatoday.uberflip.com/i/972198
50 maltatoday SUNDAY 22 APRIL 2018 T he Court ordered that a deposit paid on a promise of sale of a property be refunded not because of a breach of the agreement but because the agreement expired. This was held in a judgement delivered by Mr Justice Silvio Meli on 17 April 2018 in Deborah Lia v Angelo Zahra. Lia in her application explained that the parties entered into a promise of sale agreement, where she was to purchase an apartment in San Gwann. She paid €17,500 as a deposit and the balance of the price was to be paid on the contract. However, Zahra failed to appear on the final contract and the sale did not go ahead. Since the promise of sale expired, she asked for a refund of the deposit and that she is awarded damages. Zahra filed a statement of defence and a counter claim arguing that he did not receive any judicial acts to appear on contract and that he is owed more than €17,500. He denied that he caused any damages to Lia. In the counter-claim Zahra alleged that on signing of the agreement Lia took possession of the property and the latter painted the apartment a colour to her liking. Apart from this there are pending electricity bills. Zahra asked the Court, to order Lia to pay compensation for possession of the property and other expenses. Lia disagreed and said that she resided in the premises with Zahra's consent and said that all utility bills were not sent to him. The Court dealt first with whether a refund of the deposit should be effected. There is no contestation that €17,500 was paid as a deposit on the price of the apartment. The Court quoted a previous judgement Joseph Cauchi v Anthony Vassallo dated 11 December 2003, wherein it pointed out that these cases are not on non-performance. The agreement was governed by a period which expired and therefore the purchaser should receive the deposit he had paid. The Court, agreed with this judgement and ordered that Zahra refund Lia €17,500. With regard to the claim of damages, the Court quoted a previous judgement Vincent Schiavone et v Michael Psaila et of 29 May 2014 which held that the plaintiff would have to prove that the defendant was responsible for the event, the damages sustained and that the event caused the damages. The evidence produced showed that the notary had informed Zahra of the date of the contract, but Zahra did not turn up. As to the quantum of the damages, the plaintiff showed that she had paid €815 in tax, but this can be refunded by the tax department with a simple request. The other expenses that she paid were €200 for legal expenses and €162 for home loan charges. The Court dealt with the counter claim presented by Zahra. With regard to the possession of the apartment the Court pointed out that he had asked for the property back in October 2013 and therefore, before this time, Lia was living there with Zahra's knowledge and consent. Therefore, no compensation is due. As regard to outstanding bills from ARMS, this amounted to €221.55. Since the consumption was done when Lia was in the apartment, therefore this is due. The Court concluded by saying that Zahra had to pay Lia €17,500 and €362, while Lia had to pay Zahra €221.55 Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates Opinion A development planning application seeking permission for a shooting academy was assessed by the Planning Commission. Applicant further sought to sanction a building which was constructed illegally with the intent to use as lecture rooms. In addition, the proposal contemplates the placing of rubber tyres along the periphery. The site consists of a field located in an area known as Ta' Hax-Xluq in the limits of Siggiewi. Following assessment, the proposal was turned down for the following reasons: 1. First and foremost, the site featured an area paved with franka stone without prior authorisation; 2. The proposed sanctioning of the existing buildings and the use of a shooting academy ran counter to the provisions of policies NWRS3&4 of the North West Local Plan which specifies that development within a Category 3 ODZ Settlement may only be used for residential, agricultural, retail and tourism purposes and subject to eligibility criteria; 3. The proposal ran counter to the SPED objectives which aim to protect and enhance the character of rural areas; 4. The placement of tyres along the site periphery would ruin the landscape; 5. The proposal was in breach of Rural Objectives 1, 3, and 4 which aim to facilitate sustainable rural development by controlling the location and design of rural development, as well as the cumulative effect of such development. In reaction, applicant filed an appeal with the Environment and Planning Review Tribunal, insisting that permission should have been granted. Applicant, now appellant, explained his intentions 'to set up a school in the art of shooting'. For this reason, applicant contended that having 'a premises whereby to conduct the lectures' was imperative. Insofar as the unauthorised paving was concerned, applicant maintained that safe access was to be provided. Appellant pointed out that limestone was compatible with the rural setting, adding that the slabs were to be laid directly on soil and without cement bedding. Applicant argued that he was a professional instructor and the whole idea was to 'organise and bring over to Malta groups of enthusiasts to learn the art of arms handling and shooting in the various disciplines'. Finally, it was contended that a shooting academy falls within the remit of Category 3 ODZ settlement regulations. In reply, the case officer maintained that appellant's statements highlighting that 'franka paving around the building was done from a compatible material within the rural setting' were irrelevant. The Tribunal was also reminded that according to the Local Plan, no new buildings were allowed to be built in Category 3 ODZ settlements. In its assessment, the Tribunal fully acknowledged that appellant's site was located in a Category 3 Settlement. Having said that, the Tribunal observed that Policy NWRS 4 of the Local Plan expressly provides that "new development, which takes up fresh land, notwithstanding the location of the site in relation to existing buildings, will not be permitted ". On that basis, the Tribunal rejected the appeal. Dr Robert Musumeci is an advocate and a perit having an interest in development planning law robert@robertmusumeci.com Robert Musumeci No buildings were allowed to be built in Categroy 3 ODZ settlements New development, which takes up fresh land, notwithstanding the location of the site in relation to existing buildings, will not be permitted Malcolm Mifsud Refund of deposit takes place when promise of sale expires Permission for shooting academy turned down