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February, 14 2020
February, 6 2020
Appeal from the decision of the Consumer Claims Tribunal
Gauci-Maistre Xynou (Legal | Assurance)
Author: Dr. Joseph Bugeja
An appeal to the Court of Appeal (Inferior Jurisdiction) was filed following the decision of the Consumer Claims Tribunal (“the Tribunal”) in the names James Formosa vs. Sunday Johnson (CCT/153/17/S) dated 5 July 2019.
The Tribunal upheld the plaintiff’s claim for a default order against respondent in terms of Rule 4.1 of S.L. 378.01 and in view of such order:
i)Ordered respondent to pay to the plaintiff the amount of Euro 600 ex aequo et bono;
ii)Declined to take cognisance of respondent’s reply in view of the late submission;
and ordered the cost of the case to be borne by the respondent.
The facts of the case were as follows: The plaintiff James Formosa had engaged the respondent Sunday Johnson to perform tiling works and plastering. It transpired that part of the works were not according to the art and trade. The certificate issued by the plaintiff’s architect confirmed this.
It was noted that the respondent’s reply to the Tribunal was fuori termine, and consequently, the Tribunal discarded the respondent’s reply.
The Tribunal agreed in parte with the plaintiff’s claim, and awarded the amount of Euro 600 ex aequo et bono. The original claim of the plaintiff amounted to Euro 1,704
The plaintiff appealed the decision of the Tribunal claiming that the Tribunal had made an incorrect interpretation of the facts together with a misapplication of the law. The Court referred to the verbale of the sitting held on 4 May 2018 where it resulted that both the plaintiff and the respondent were present for the sitting and despite the fact that it was declared that the respondent was going to testify, the plaintiff did not register an opposition to his evidence. This despite the fact that the plaintiff had filed a note in the acts of the case stating the respondent’s reply was fuori termine. In this respect, the Court differed and stated that the Tribunal had the evidence as well as the architect’s report and this with the appellant’s approval. Therefore, the Tribunal would have been wrong had it not taken the evidence and its analysis before reaching its decision into consideration.
Furthermore, the plaintiff argued that the Tribunal decided to decrease the claim from Euro 1,704 to Euro 600 given that the architect testified that he could not state with certainty whether the defect in the tile laying was the result of defective tiles or, whether it was due to bad workmanship. The plaintiff argued that the defect issue was irrelevant given that the contractor had been obliged not to lay any defective tiles in the first place. However, despite the doubt on whether the defect was the result of a flawed manufacturing process or, whether it was a matter of deficient tile laying, the architect still indicated that the tiles of the bathroom at the ground floor should have been properly laid.
The decision of the Court of Appeal
The Court noted that the respondent could not have known that the tiles were defective before the tiles were laid. Rather, the evidence showed that if the tiles were defective, this issue was raised after the tiles were laid. Therefore, the Court held that the respondent should not bear all the consequences that the tiles were defective. On the other hand, it was evidently clear that the bathroom tiles had not been laid in a professional manner, irrespective of whether the tiles were defective or not.
Therefore the Court held that the Tribunal’s decision to establish the damages ex equo et bono at Euro 600 was not legally and factually justified. The Court upheld the appeal and liquidated the amount of Euro 1,574 in damages in favour of the plaintiff.