Notary Ivan Barbara: Judge orders civil case for refunds against notary's widow to continue

A judge has ordered that a court case filed by 23 clients of the late notary Ivan Barbara against his widow, over funds held in escrow by the notary at the time of his death, to continue after rejecting the widow’s preliminary pleas.

After the death of the notary, who succumbed to COVID-19 while on a trip to India in 2019, a number of clients attempting to retrieve sums of money they had entrusted to the notary, as deposits and taxes on property contracts which the notary never registered, were informed that his widow, Rosanne Barbara Zarb had renounced her inheritance.

In January this year, the plaintiffs had jointly filed civil proceedings against Barbara Zarb, demanding that she refund a total of approximately €165,000 which the notary had held in escrow, representing deposits and unpaid taxes on various property contracts.

Some of the notary’s former clients had later also demanded a magisterial inquiry into what they suspect to be fraud and misappropriation by Barbara Zarb .

The plaintiffs claim that Barbara Zarb had initially told them that the refunds could not be processed immediately as Barbara’s death certificate had not yet been issued, due to bureaucratic delays caused by the fact that he had died in India, but had eventually discovered that Barbara Zarb had renounced her inheritance. This was later confirmed by the Notarial Council.

The notary’s widow had contested the monetary claim, her lawyer Phyllis Aquilina raising preliminary pleas whereby it was argued that the action filed was null, owing to what she claimed were procedural defects.

The defects that the lawyer alleged were, firstly, that the collective legal action could not subsist in this case as it did not satisfy the requirements laid down in the law and secondly, because one of the plaintiffs had not taken an oath on some of the allegations listed in the initial sworn application.

In a decision handed down on Friday in the First Hall of the Civil Court by Madame Justice Audrey Demicoli, the preliminary pleas were dismissed.

The judge, after having reviewed the case law cited by the parties, ruled that it was evident that the court was faced with a single action, brought by several plaintiffs and that the required elements for such a case to be filed were present. 

“It was too obvious and very clear that had the applicants filed separate cases against the defendant asking the court for precisely the same declarations and decisions which they are requesting in this case, in the eventuality that some decisions would vary from one to another… the decisions would automatically be conflicting.”

On the second alleged defect, that one of the plaintiffs had not, as part of the sworn application, taken an oath on the allegations pertaining to his particular circumstances, the court also did not feel this had any impact on the notary’s widow’s case.

“...It emerges from the defendant’s own sworn reply that she could have easily, from the way which in the sworn application was written, deduce which facts were known to [the plaintiff] personally and which facts applied to the respective expectations of the other plaintiffs,” said the judge.

The fact that the man in question had not expressly and specifically indicated which of the facts he was personally aware of “certainly did not prejudice the possibility of the defendant preparing her defence.”

Dismissing the preliminary pleas, the judge ordered the case to continue.

Lawyer David Bonello is representing all of the plaintiffs in this case. Lawyers Pawlu Lia and Phyllis Aquilina are defence counsel to Barbara Zarb.