Appeals Court confirms property sale invalidation

The Court of Appeal has confirmed a judgment by the Gozo courts that had annulled the sale of property on the basis of fraud.

The judgment was delivered in the case filed by Jennifer Maria DeHoog against Sam Portelli and his wife Mary.

Ms DeHoog had claimed that her father, Carmel Anthony Portelli (who died in April, 1994), was a co-owner of property at Nadur.

In 1992 her father had issued a power of attorney in favour of Mary Portelli, authorising her to sell the property in Gozo and to divide the proceeds of the sale equally between himself, Ms Portelli, and Sam Portelli.

The court was told that Carmel and Sam Portelli were brothers.

According to Ms DeHoog, Sam Portelli had, in August 1993, informed her that the power of attorney was invalid and had to be replaced. But, when she visited Malta to organise her father's estate after his death, she discovered that Ms Portelli had sold her father's property for the fraudulent sum of Lm10,000 to her own husband, Sam.

The Gozo court had found in favour of Ms DeHoog and had declared the sale of the property to be null and void on the basis of fraud.

It noted that the late Carmel Portelli had appointed Ms DeHoog as his sole heir in virtue of a will drawn up in the United States, where he resided. He had also issued a power of attorney in favour of Ms Portelli in respect of the Gozo property.

But Ms Portelli had clearly acted fraudulently, the court had ruled, when she had sold the property and Carmel Portelli's hereditary rights to her husband. Furthermore, she had benefited from the sale as the property had entered the community of acquests existing between her and Sam Portelli.

The purchase price for the property was also fraudulent, for the sum of Lm10,000 was low and had only to be paid by Sam Portelli within one year from the sale. Ms Portelli had not even reserved Carmel Portelli's rights to secure payment of the price, and it did not result that the amount had ever been paid.

The court therefore dismissed all the pleas raised by Mary and Sam Portelli and declared that the sale was null and void.

The Portellis resorted to the Court of Appeal composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The Portellis submitted that Ms DeHoog had no legal interest in the case, for the birth certificate they exhibited indicated that she was not the daughter of Carmel Portelli, but of another person.

This ground of appeal was dismissed as the appellate court ruled that Ms DeHoog had been appointed by Carmel Portelli as his sole heir, and therefore had a legal interest in the case.

The court added that the first court had made a proper evaluation of the facts of the case and had concluded that the contract of sale had been fraudulent.

Mary Portelli had exceeded the limits included in the power of attorney given to her by Carmel Portelli, for she had sold not only the property in Gozo but also the hereditary rights that Carmel Portelli had over the succession of his late parents.

The Court of Appeal confirmed the judgment of the Gozo court and found that the contract of sale was null and void.