If there is a change in circumstances which allow the reduction of a garnishee order, the Court may reduce or remove that garnishee order. This was held in Karl Magri and Jackie Magri vs Jurgen Vassallo decided on 14 August 2023 by the Magistrates Court. The Court was presided by Magistrate Victor Axiak.
Jurgen Vassallo filed an application stating that a garnishee order issued by the Magris was issue with bad intentions and that it was frivolous and vexatious. Vassallo asked the Court to issue a penalty against the Magris in terms of Article 836(8) of the Code of Organisation and Civil Procedure and also to award him damages in terms of Article 836(9). Vassallo asked the Court to revoke the garnishee order.
Karl and Jackie Magri replied to this application by rubbishing the claim and asked the court to turn down the request to revoke the garnishee order.
The Court criticized both parties for presenting voluminous documentation, since the Court at this stage will decide the application on a prima facie level. It will not go in depth on the case, since this will be done in the court case, which followed the garnishee order.
The garnishee order was filed by the Magris for the sum of €14,867 for the non-completion of works that were taking place in a property in Malta. Vassallo is now attacking the garnishee order in terms of Article 836(1)(d) and (f) of the Code of Organisation and Civil Procedure (COCP) which allows a counter-warrant if the amount is not justified or else the circumstances under which the garnishee order was issued were not reasonable.
Vassallo is claiming that there is no written agreement between the parties on when the works should be concluded. The delay was the Magris’ doing and not his and furthermore he had to wait for other workmen to conclude their works before he could continue. It was the Magris’ architect who oversaw the works and in addition the sum claimed is exaggerated.
When analysing Article 836(1)(d) of the COCP the Court quoted from Stewart Desmond Stanley vs Therese Mangion Galea, decided by the First Hall of the Civil Courts on 29 July 2005. In this case, the Court held that the Court should first see whether there is a right to be protected and secondly that the sum corresponds with the liquidated claim.
The Court held that it went through the documents presented by Vassallo, but did not find anything determining to the effect that the sum mentioned in the garnishee order was too excessive and merited a reduction or removal.
As to the other ground for the removal of the garnishee order under Article 836(1)(f) of the COCP, the Court held that caselaw showed that the removal of the garnishee order is allowed only if it is shown that the circumstances changed after the garnishee order was issued.
The Court quoted from Francis Spiteri et vs Charles Darmanin et decided on 25 August 2010 and Roberto Carlos Calleja vs Gerard Dominic Borg Mizzi, decided on 12 February 2020 by the First Hall of the Civil Court. In this case, Vassallo failed to show the Court that there were any changes to the circumstances that justified the revocation of the garnishee order.
As to Vassallo’s request to issue penalties against the Magris the Court quoted Article 836(8) of the COCP, which allows the Court to issue a penalty between €1,164.69 to €6,988.12, if a court case is not filed on time or else if the applicant did not call upon the debtor to pay at least 15 days prior to filing of the warrant or else when there is no doubt on the debtor’s liquidity. The Court quoted from another decree Carmel Farrugia et vs Charmaine Farrugia pro et noe decided by the First Hall of the Civil Courts on 2 August 2012 wherein the Court decided that the awarding of penalties is at the discretion of the court and therefore, the Court must be convinced that one of the circumstances mentioned in the Article 836(8) of the COCP existed. The Court was not convinced that penalties were necessary in this case.
The Court then moved to dismiss Vassallo’s requests.
Av. Malcolm Mifsud
Partner
Mifsud and Mifsud Advocates
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