The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Raymond C. Pace, on September 30, 2011, in the case “Parklane Investments Limited vs Luigi and Pauline Portelli and others” held, among other things, that it was not necessary for the court to cancel all in parte decisions in order to be in a position to order a retrial.

The facts in this case were as follows.

The company Parklane Investments Ltd filed legal proceedings requesting the revocation of the Court of Appeal’s decision dated July 30, 2010, and for the court to order a retrial on grounds of “wrong application of law’”, Article 811(e) Chapter 12, of the Laws of Malta.

It resulted that originally, by a contract of July 16, 1969, Luigi Portelli gave Parklane Investments by title of perpetual ċens (ground rent), land in Baħrija, limits of Rabat.

Since the ċens was not paid for three consecutive years, Mr Portelli filed a lawsuit to terminate the concession.

Action was made against Winston Carbone in his capacity of managing director of Parklane Investments. As Mr Carbone was away from Malta, curators were appointed to represent him as managing director.

On May 24, 1973 the court accepted Mr Portelli’s requests and appointed a notary to publish the act of rescission on June 8, 1973.

Subsequently, the company Parklane Investments on April 28, 2000 filed a lawsuit against Mr Portelli and his wife, asking the court:

1. To declare that the 1973 case (writ no. 210/1973 “L. Portelli vs Dr L. Aguis et noe” was not binding upon it;

2. To declare that its perpetual ground rent (ċens) of its land in Baħrija, Rabat should not have been revoked and was still valid.

The company claimed that despite the lapse of 27 years, the curators never notified it of the case. It was submitted that the curators should have been appointed to represent the company and not Mr Carbone.

The company claimed that this was of serious prejudice to it and that it became aware of the judgement allegedly only after the suit had already been decided.

Mr Portelli, on the other side, pleaded in defence that Parklane Investments’ legal action was unfounded, as the decision of May 24, 1975 was now res judicata.

On January 23, 2004, the First Hall of the Civil Court rejected Parklane Investments’ case.

Parklane appealed.

On December 1, 2006, the Court of Appeal accepted its appeal in parte, remitting the case to the First Hall of the Civil Court to decide whether Parklane Investments was in fact a party in the original proceedings, and whether it was accordingly bound by the Court of Appeal decision of May 25, 1973.

On May 21, 2008, the First Hall of the Civil Court decided against the company, Parklane Investments. Its decision was confirmed by the Court of Appeal July 30, 2010.

The court noted that under the company’s statute the managing director or any other person expressly authorised by him shall represent the company in all judicial proceedings.

Mr Carbone was managing director but resigned on November 28, 1973. On February 26, 1972 C. Calleja was appointed director. There was no evidence that he was managing director instead of Mr Carbone. Mr Carbone was not sued personally but as managing director of the company.

The court said that once in the Memorandum of Association, it was stated that the managing director had representation of the company and once it appeared that the only person who was managing director was Mr Carbone, it followed therefore that Parklane Investments was a party to the proceedings.

In this case Parklane Investments requested the court to revoke the Court of Appeal’s decision dated July 30, 2010 and for its appeal to be re-heard on the basis of wrong application of law.

It put forward the argument that the curators should have been appointed to represent the company, in terms of Article 929 (a) Chapter 12 of the Laws of Malta. It said that Article 929 (d) was of public order; that it should always be applied and that no court should ignore this provision.

Mr Portelli in reply, contended that there were no grounds for a re-trial.

Nullity of Parklane’s legal action: Mr Portelli argued that when the merits were decided by more than one decision, a person requesting a re-trial had to ask for the cancellation of all in parte decisions. He said that the court had to annul all decisions, before ordering a retrial.

If a case was still pending, a re-trial could not be ordered before the whole case was decided,

Mr Portelli maintained that it was not correct for Parklane Investments to request the cancellation of just one decision.

No wrong application of law: Mr Portelli disputed any wrong application of law by the court in its decision of July 30, 2010. The court did not decide whether the procedure to appoint curators was observed but whether Parklane Investments was a party in the proceedings and whether it was bound by this decision.

On September 30, 2011, the Court of Appeal gave judgment by dismissing the request for a retrial.

The following reasons were given for the court’s decision.

A person did not have to request the cancellation of all in parte decisions before a re-trial could be ordered. A decision could only be rescinded for reasons mentioned under art 811, Chapter 12. If a decision was valid, it remained binding. The court said that it was not correct that all in parte decisions had to be attacked, and in this respect the court dismissed Mr Portelli’s plea of nullity.

Parklane Investments claimed that the court should have applied Article 929 (d) and appoint curators to appear on its behalf.

Article 929 (d) provides: “Registered or established under the Commercial Partnerships Ordinance* or any other law substituting the same Ordinance or anybody of persons or other organisation if the person or any of the persons vested with the representation thereof is or are absent from Malta or where there is or are no such person or persons, or enough persons vested with such representation.”

The issue whether the curators were appointed correctly or if the court should have applied Article 929 (d) Chapter 12 or if it should have relied on Article 121 (2) of the Commercial Partnerships Ordinance was determined by the court decision of December 1, 2006. This decision was still binding and its revocation was not requested.

The court in the decision under attack, was asked to examine whether Parklane Investments was a party to the proceedings. It did not have to consider whether the curators were appointed correctly.

The court did not therefore have to apply Article 929 (d) Chapter 12. There was no wrong application of law and the request for a retrial was not justified.

Dr Karl Grech Orr is a partner at Ganado & Associates.