Court qualifies audited accounts

This was decided in Josella Terribile v J&L Zammit Ltd on 6 October, 2014 by Mr Justice Anthony Ellul.

Ms Terribile filed her action by stating that she had entered into a private writing with J&L Zammit Ltd (J&L) where she would be given 50% of the profits of the pharmacy she would run, as self-employed. This agreement was signed on 31 January, 2005, but J&L terminated this agreement in August 2006 unilaterally “without any just cause”. The company failed to pay her 50% for 2006, neither was she given the accounts for the years she worked for J&L. Ms Terribile asked the court to order the handover of the accounts for 2005 and 2006 and to order the company to pay her share.  

The company defended itself by stating that Ms Terribile was paid more than was due and therefore, was not owed more money. Furthermore, the agreement was terminated due to valid reasons.

Mr Justice Ellul considered the evidence produced by the parties. The plaintiff presented a copybook that contained notes of all sales and purchases the pharmacy made. According to this copybook the pharmacy sold Lm142,203 and in 2006 until August the sales amounted to Lm74,746.57. Purchases for 2005 were Lm107,874, while for the first eight months of 2006  they amounted to Lm50,283.98.

Expenses consisted of Lm8,125.79 in 2005 and no total was given for 2006. Ms Terribile also presented the workings of the profits for 2005, prepared by the company’s accountant. The accountant testified that these were not the actual profits but projections, but the court was not convinced and held that projections are not done by including cents. The accountant’s workings were similar to the plaintiff’s workings from the copybook.

The company presented the court with audited accounts for 2005 and 2006, from which in 2006, the company showed a loss. The court delved into these accounts and found that some figures that had notes “less under”, which was taken to mean “less undeclared”. Further, the plaintiff company reduced tax it was bound to pay.

This was of no concern for the plaintiff. Further expenses included in the accounts were depreciation and a management fee, which were not according to the agreement of the parties. In fact in 2006 the plaintiff was paid Lm1,000 or Lm1,500 monthly and therefore, the defendants must have known the value of the business. According to the audited accounts of 2006, the company made a loss and therefore, Ms Terribile owed the company money, however, the company took no action to retrieve this money.

The court concluded that the audited accounts did not reflect the reality and that in 2005, she was to receive Lm11,775. With regard to 2006 the court calculated that, from what was written in the copybook, parts of the audited accounts, and also what had taken place in 2005, Ms Terribile was owed Lm8,731.

With regard to the penalty of Lm5,000 in the agreement if this was terminated by one of the parties due to an unjust cause, the defendant said that they were forced to terminate because she opened the pharmacy late, there was bad management and the company received reports from the resident doctor that she was pocketing his money from patients.

This last charge was substantiated by the resident doctor who attended the pharmacy. The plaintiff denied this and explained that the doctor’s fees were reduced to pay for cleaning, electricity and other expenses. However, when the doctor testified he noticed that his fees were reduced when the plaintiff was in the pharmacy, and when the owners were in the pharmacy his takings were much more. The court concluded that the company was justified to terminate the agreement and no penalty was due.

The court concluded by ordering the company to pay the plaintiff €16,321.27.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates