Court upholds garnishee, but reduces amount

The First Hall of the Civil Court, presided by Ms Justice Lorraine Schembri Orland, on 16 July, 2015 in Maria Azzopardi et -v- Saviour Pisani and Swieqi Investments Limited decided that a garnishee order was justified at the time when it was filed, however, due to changes in circumstances the amount should be reduced. 

In his application Saviour Pisani asked the court to revoke the garnishee order of €20,000 in terms of Article 836(1) of the Code of Organisation and Civil Procedure. Pisani explained that there was no need to file a warrant against Swieqi Investments Limited because it has sufficient assets to cover.

He also claimed that the garnishee order was not justified and was excessive since it dealt with a right of passage over his property. He explained that under the previous owner of the property, there was a verbal agreement with the Azzopardi family that they were to pass through this passage only with their consent. Pisani claimed that the Azzopardis had an alternative passage. Pisani further explained that he blocked the passage to identify who was making use of the passage and put in controls. Pisani complained that the garnishee order was a serious inconvenience since they blocked his accounts and credit cards. 

The Azzopardis replied by saying that they filed the garnishee order to protect their claim of damages Pisani allegedly caused them. It was not true that Swieqi Investments Limited has sufficient assets to cover the claim, because only €995 were found in their account, and furthermore, the relationship between the company and Pisani is unclear. The Azzopardis explained that they took the necessary spoliation action in order to continue with their right to use the passage  in question.

The Court analysed the facts of the case, where the parties are already locked in litigation proceedings, where the Azzopardis are alleging that Pisani illegally blocked their right of passage to their property. It is not contested that the Azzopardis used the passage and that Pisani installed a remote control system on the gate, but failed to offer a copy of the remote control. Subsequently the Azzopardis filed a garnishee order for €20,000, but only €995 was deposited in court by the banks. 

In Pisani’s testimony he stated that he did not pass the remote control because the Azzopardis did not want to sign that they were using it on tolerance. 

Joe Azzopardi told the court that his family inherited land beyond Pisani’s and he always remembered to pass to his land from the passage through Pisani’s property. Adrian Azzopardi held that he used the rooms in his property as a store for his business, but was now unable to do this. 

The Court quoted Article 836(1)(c)(d)(f) of the Code of Organisation and Civil Procedure, which regulates counter warrants and held that the causes of the litigation are to be investigated in other court actions, and the application should not affect these other actions. This was established in previous court judgements such as Vincent Mercieca -v- George Galea of 29 November, 2001 and Technobroadcast srl -v- Mediterranean Broadcasting Limited of 5 June, 2007. 

In Casino-for-Me Limited -v- Chartwell Games (Malta) Limited of 5 September, 2008, the court had decided that a person had a right to protect his/her claim, as for example damages resulting from spoliation. The court criticised the Azzopardis in that the amount claimed was excessive, as it was unclear how much was suffered when Pisani installed the remote control system, which effectively blocked the passage. Although there could be a case of damages, the amount sought was excessive. No schedule of damages was presented in court. On this ground the court reduced the garnishee order to €5,000.

With regard to Pisani claiming that he has sufficient assets to cover the claim, the Court commented that Pisani limited himself to the value of the property. There was no evidence that the property was freehold or the searches were not presented in court.

With regard to Pisani’s request for the garnishee order to be revoked the Court held that he would have to prove that there was a change of circumstances that would allow this. In this respect there was no change in circumstances apart from the amount mentioned in the warrant. 

Ms Justice Schembri Orland, then dealt with the request for the Azzopardis to be ordered to pay a penalty for filing the garnishee order and said that this is totally in the court’s discretion. This penalty is intended to ensure that the court proceedings are taken seriously and for one not to abuse by instituting precautionary warrants. The court criticised Pisani for not producing evidence and a declaration that he is the owner of a property is no peace of mind, especially when he did not have €1,000 in liquid cash. Therefore, it was not proved that the Azzopardis abused the system by filing for a garnishee order. 

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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