Notary's widow wanted ‘60/40’ split of commission on his contracts, court told

After the death of notary Ivan Barbara, his widow had insisted on splitting the proceeds of his contracts with the junior notary at his office, a court has heard today.

Notary Ivan Barbara had died of COVID-19 in India in April 2021, aged 47. He had travelled there together with his wife, in order to adopt a child.

After finding out that Rosanne Barbara Zarb had renounced her inheritance, over twenty clients of the deceased notary had subsequently filed judicial proceedings against her in a bid to be refunded monies - approximately €165,000 in total - which the notary had held in escrow deposits and taxes relating to various property contracts.

When the case continued before Madam Justice Audrey Demicoli on Friday, Notary Katryna Spiteri Grech took the witness stand, having been summoned by the plaintiffs.

Spiteri Grech told the court that she had started working with Ivan Barbara in 2014 to obtain the work experience necessary for her warrant and had subsequently been employed by him after obtaining her warrant in June 2016.

The witness said she would receive a monthly salary from Barbara and that no arrangements over professional fees had been entered into.

Initially Barbara had an office in Tarxien, before moving to Paola in 2018, she said. At first only the two notaries had worked at the Paola office, she said, adding that after a while the notary’s wife had started to work there too. She was an accountant and would see her own clients, explained the witness.

Asked what arrangement there was between the husband and wife, the witness replied “I don’t believe there was any arrangement.”

Barbara Zarb would not involve herself in the notarial work per se, the witness recalled, but would take care of the office administration, purchasing supplies, preparing payslips and dealing with her leave requests.

After the notary’s death, Spiteri Grech had spoken with his clients who, she said, had “many concerns.” She had taken over his files, after consulting with the Notarial Council and Barbara Zarb, said the junior notary.

Around a month after the notary’s death, Barbara Zarb had offered to employ Spiteri Grech. “We had spoken and she told me there was the option of me being employed by her. I later decided to say no and registered as self-employed.” The witness’ refusal was made at the end of May, she said.

Although her employment had ended when the notary died, Spiteri Grech continued to go to his office until the end of June, said the witness.

This was because the Notarial Council had requested a list of all of Barbara’s pending files and whether or not the contracts had been registered, she explained, adding that she would help the defendant to understand technical issues.

Bonello confronted the witness with documents, including a contract and a bank transfer which had been made to Ivan Barbara in March, before his death. The witness recognised her own signature on the documents, including a cheque payable to her.

“What did you do with the fees?” asked the lawyer.

“The fees were paid to me because I had published [the contract]. I had given part of them to Roseanne because she had requested a commission as goodwill for giving me the file.”

The payment had been made in cash, said the witness who told the court that she was unable to recall the amount.
Bonello asked about the discussion that had led to commission being paid to the defendant after the death of her husband. “At first she had wanted to employ me and I had said no. Then I had started working as self-employed and I had asked her to rent me the office, but she refused. She had told me that if I wanted to use the files, I would have to pay a commission.” Asked how much the commission was, she replied “around 60% / 40%”. 

“Do you remember where you handed the money?” asked the lawyer.  “I believe it was in the office,” replied Spiteri Grech.

“Was there any written communication in this regard?” queried Bonello. “I don’t believe so,” said the witness, explaining that most of her communication with the defendant would be over the phone and that she no longer had access to her office emails, in any case. 

Spiteri Grech testified to having paid Barbara Zarb a single sum, representing commission on the contracts that she had worked on at that time.

When the office started to receive phone calls from angry clients, Spiteri Grech said that she had been informed by Barbara Zarb that no death certificate had been issued and so the client account could not be liquidated.

After the Notarial Council had issued a statement advising the late notary’s clients to seek legal advice because Barbara Zarb had renounced the inheritance, Spiteri Grech had spoken to the clients, who wanted to be refunded the monies they had entrusted to the notary for deposits or taxes which had not been paid.

The witness had asked the Council whether she could return the files to the clients, in view of the fact that the death certificate had not been issued at that time, and was told that the files belonged to the clients. So, she would prepare the files and ancillary paperwork and inform Barbara Zarb which particular client would be coming on what date. At the time that she had resigned from the office, not all of the client files had been picked up, she said.

Clients would be asked to pay for the searches and other costs, but the paperwork would state that the fee on the promise of sale was not being paid.

“Not all of them were happy with this. Many would tell me that they were owed money by the notary, not to him.”

Of those that paid, some would pay in cash, if the amounts were small. Others were asked to pay by cheque, addressed to Notary Ivan Barbara. “Rosanne told me to do so, because she said this was the bank’s advice as the client account was still active.”

The witness will continue testifying when the case resumes in April.

Lawyer David Bonello is representing Notary Barbara’s clients. Lawyer Phyllis Aquilina is assisting Barbara Zarb.