The First Hall of the Civil Court, presided over by Mr Justice Joseph Zammit Mc Keon, on September 30, 2014, in the case ‘Lawrence and Josephine Gatt v Bezrod Ltd’ held, among other things, that defendant company was duly notified. Notification was served on the company at the director’s place of residence as indicated in the company’s memorandum and accepted by the director’s mother. His mother did not require authorisation.
Lawrence and Josephine Gatt submitted that by virtue of contract of constitution of debt, dated July 12, 2012, in the acts of Notary Ritienne Bugeja Fenech, the parties agreed that the company Bezrod Ltd would carry out works in a block of apartments at No. 228, Lampuka street, Tarxien. The works included the installation of a lift and other works to complete the common parts and finishing of the apartments.
The company agreed that the water heater should be returned. It also obliged itself to pay rent until the lift was functional, subject to a penalty of €50 per day until the lift was in operation after December 2012 and a penalty of €20 daily until the other works were completed, after August 12, 2012.
Gatt also requested the company to pay the penalties.
Faced with this situation, Gatt proceeded to file legal proceedings against the company, asking the court to condemn it pay them rent, to order the company carry out works, and to condemn it pay the penalties under the public deed dated July 12, 2012.
The notification of Gatt’s sworn application was served on the company at its registered office and accepted by the sole director’s mother, Cettina Bezzina, who had no authorisation to accept documents on behalf of the company.
The company failed to present its reply within the statutory 20 days. It also claimed that it had not been duly notified of Gatt’s sworn application. In this case the First Hall of the Civil Court had to decide whether the company had been duly served according to law.
The company was registered on February 28, 2006, registration number C38102, having its registered office at 54, Triton, Qawwara Street, Marsascala. This was the address where notification was served.
According to the company’s statute, it was also the residential address of Roderick Bezzina, the sole shareholder and sole director of the company. In the proceedings, Bezzina however stated that he lived in Żurrieq and that his mother resided at Flat 2, Qawwara Street, Marsascala. He said that his mother had not passed on the documents to him in time for the company to present its defence.
Although the registered office of the company was at 54, Qawwara street, Marsascala, in reality the original building was transformed into three units. The Registry of Companies had not been informed of the change of address of the company to Flat 3, Qawwara Street, Marsascala.
Article 187(4) of Chapter 12 provides:
“In the case of a body having a distinct legal personality, service on such body shall be effected by leaving a copy of the pleading:
(a) at its registered office, principal office or place of business or postal address with any of the persons mentioned in article 181A(2) or with an employee of such body; or
(b) with any of the persons mentioned in article 181A(2) in the manner provided for in sub-article (1).”
Article 181 A(2) of Chapter 12 provides:
“In the case of a body having a distinct legal personality, be sworn by the person or persons vested with the legal or judicial representation thereof or by any company secretary or by any other person authorised in writing by such body to file judicial acts on its behalf or to make any such declaration, sworn reply or sworn pleading.”
In ‘Xanthippe Shipping Ltd v Comptroller of Customs’ dated November 30, 2007, the Court of Appeal held that the question of notification of a judicial act was well defined at law, in particular in Chapter 12.
In the case of an entity having distinct personality, notification was effected when the documents were delivered to a person having representation, or to the company secretary, or to some other person authorised in writing by such entity to represent it in judicial acts, or in terms of article 187(1) of chapter 12 if the documents were accepted by a family member or domestic helper or attorney, or a person who was authorised to receive service at the place of work or at such person’s residence or postal address, re: ‘Louis De Bon et v Stefania Micallef et pro et noe’, dated May 30, 2008.
As the Registry of Companies had not been notified of the change of address of the company, for purposes of article 187 (4) (a) of chapter 12, Gatt’s sworn application had been done validly at the registered office of the company.
In this case, the copy of the sworn application was left with the sole director’s mother, who was not an employee nor a person mentioned in article 181A(2). Although notification was effected at the registered office of the company, not all the requisites of article 187(4) were satisfied
Article 187 (4)(a) mentioned the persons who could receive service, and referred to article 181A(2) of chapter 12. These persons consisted of: any person having judicial representation; the company secretary; and any person authorised in writing to receive judicial acts. Article 187(4) mentioned employees of the company.
In this case the copy of the sworn application was left with the sole director’s mother, who was not an employee nor a person mentioned in article 181A(2). Although notification was effected at the registered office of the company, not all the requisites of article 187(4) were satisfied.
Under sub-paragraph (b) of article 187(4), the law provides an alternative mode of notification. This sub-paragraph mentions family members, persons forming part of the household, employees, attorneys and persons who are authorised to receive its post.
The court said that in this case the director’s mother had received notification at the company’s registered office and at its postal address. Reference was made to the case ‘Xanthippe Shipping Ltd v Comptroller of Customs’, where the court held that notification could be effected at a person’s residence and here notification could be accepted by a family member, member of the household or employee. No authorisation was necessary, once the judicial act was sent to the postal address and place of residence of the company’s director. The fact that notification was accepted by a domestic helper meant that notification was validly effected for purposes of article 187(4)(b) of chapter 12.
Applying what the court said in the Xanthippe case to this case ‘mutatis mutandis’, the court found that the requisites of article 187(4)(b) had been satisfied. It followed that once the company had been validly notified of the sworn application of September 13, 2013, and once the company did not reply in terms of article 158 (1) of chapter 12, it was contumacious, pointed out the court.
For these reasons, on September 30, 2014, the First Hall of the Civil Court declared that the company had been duly notified according to article 187(4) (b) of chapter 12.
Dr Karl Grech Orr is a partner at Ganado Advocates.