The general principle of contract of works is that if the works are carried out, then payment must be affected. This was held by Mr Justice Lawrence Mintoff presiding over the Court of Appeal in Crystal Clean Limited -v- Apparea Limited decided on 14 September 2022.
The appeal followed a decision by the Small Claims Tribunal. The appeal was lodged by Apparea Limited, as the Tribunal found in favour of Crystal Clean. It ordered Apparea to pay €2110.31 for a number of services including cleaning services.
Apparea had defended the case by stating that Crystal Clean failed to give an adequate cleaning service or else the service was not even given,
The Court analysed the Tribunal’s decision. The case depends on a contract of works between the parties in terms of Article 1623 of the Civil Code. Case law allow two types of contracts of works. There is location operarum and location operis.
The Court quoted from Professor V Caruana Galizia’s writing published:
“The “locatio operarum” may be defined as that contract in virtue of which a person (the lessor) binds himself towards another (the lessee) to perform a certain work or service, for a specified time and in return for a specified salary. The “locatio operis” may be defined as that contract whereby one of the parties (the lessor) binds himself to do a specified piece of work (“opera”), or to have it done for the other party (the lessee) in return for a specified salary. »”)”.
This was echoed in other judgements such as Saviour Caruana -v- Vincent Farrugia et delivered on 17 November 2003 by the First Hall of the Civil Court.
In Nutar Dr Remigio Zammit Pace -v- Sunrise Park Hotel Limited, decided o 20 November 2009 by the Court of Appeal, the general principle is that a person must be rewarded for the work carried out.
Apparea’s defence is that the works were not carried out well. The directors of both companies testified that obviously gave their subjective outlook at what had happened.
However, it is Apparea who has to prove that the works were not carried out. This was held in Elena Agius -v- Giuseppe Clancio noe decided on 31 July 1939 and in Emanuel Ellul et -v- Anthony Busuttil decided on 7 May 2010 by the Court of Appeal.
Apparea asked the Court of Appeal to revoke this decision. The first ground of appeal what that Crystal Clean did not manage to prove the case.
Apparea said that it was meant to be given timesheets of Cystal Clean’s employees, which had to be countersigned.
This would allow the company to pay for the services delivered. Without the timesheets there was no measure of verification. Copies were made.
However, Crystal Clean did not present these timesheets in the action they had filed.
Apperea argued that this was objective evidence on whether the works were preformed or not.
However, the Court of Appeal agreed with the Small Claims Tribunal.
The managing director of Crystal Clean Limited explained that the timesheets were used also by the employees for them to be paid.
The sheets were not countersigned because there was no one from Apperea to be able to sign on these sheets.
Apperea had a contracts manager who controlled, and he confirmed that these sheets although given to him, he did not sign.
Therefore, the Appellant Company could not insist that the signed timesheets, when these sheets were not signed. It was therefore, Apparea which was responsible to make its verification and if it did not therefore, it would not withhold payment.
The next ground of appeal is that the services were not done according to professional standards.
The Tribunal did not find that standards were dropped by the Plaintiff Company.
The Appellant Company held that the Tribunal failed its reasoning.
The Court of Appeal agreed with the Tribunal again. The Tribunal found inconsistencies between what the two directors of Appenea had testified. The company failed to produce compelling evidence.
The Court of Appeal, then moved to turn down the appeal.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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