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December, 9 2019
December, 9 2019
Judicial letters must be addressed to corporate structures with judicial personalities
Judicial letters filed in terms of Article 166A of the Code of Organisation and Civil Procedure, may be addressed to corporate structures, but these must have a judicial personality. This was decided by the Magistrates’ Court on 26 February 2019 in ALC Limited -v- Bonnici Bros Contractors Limited, MDM Costruzioni Generali Srl and BM Tunnel JV
MDM Costruzioni Generali Srl and Bonnici Bros Contractors Limited, both formed a joint venture, BM Tunnel JV, which filed an action, asking the Court to declare a judicial letter filed against them as null and void, and to rescind the executive title.
ALC Limited replied by stating that the notification of the judicial letter was valid.
Magistrate Dr Gabriella Vella, who presided over the proceedings and delivered the judgement saw that the main issue concerns the notification of a judicial letter filed in terms of Article 166A of the COCP, where the three entities were called upon to pay €7,840.49 for services ALC Limited had rendered to them. Both Bonnici Bros and BM Tunnel JV were notified, while the Italian company was not. Bonnici Bros had filed a note stating that they do not owe this sum, but no such note was filed in the name of BM Tunnels JV. As a consequence, ALC Limited filed a garnishee order against BM Tunnels JV.
MDM Construzione Generali Srl and Bonnici Bros, who run BM Tunnel JV filed an action under Article 166A(5) of the code of Organisation and Civil Procedure, asking the Court to declare the notification of the judicial letter and the garnishee order as null, since BM Tunnel JV has no separate legal and judicial personality. Furthermore, nothing is owed to ALC Limited.
ALC reacted by saying by saying that the Bonnici Bros and MDM Construzioni General Srl have no judicial relationship with this action.
The Court quoted from the law, Article 166A(5) of the Code of Organisation and Civil Procedure states:
“(5) Any executive title obtained according to the provisions of this article in the absence of any opposition on the part of the debtor shall be rescinded and declared null and void if upon a request by application in the Court of Magistrates (Malta) or in the Court of Magistrates (Gozo), as the case may be, it is filed by the debtor within twenty days from the first service upon him of any executive warrant or other judicial act based on the said title. The court is satisfied that:
(i) the debtor was unaware of the said judicial letter because he was not duly notified; or
(ii) the judicial letter did not contain the requirements laid down in sub-articles (1), (2) or (3):
Provided that the said application shall be appointed for hearing within two weeks.”
The Italian company MDM Construzioni General Srl MDM), explained that it had created a joint venture with Bonnici Bros and called it BM Tunnel JV, however, it did not have a separate juridical personality from these two companies. As a result it could not have been served with any acts nor be notified of these acts. MDM Construzioni General Srl passed on a copy of the joint venture agreement. It is the Court which has to determine whether BM Tunnel JV has a separate juridical personality.
Article 4 of the Companies Act states that commercial partnership are either partnerships en nom collectif or en commandite or a company. A company may be either private or public. Therefore, two persons or more may create a commercial vehicle, with a separate legal personality than the members of that entity. A joint venture does not fall under Article 4 of the Companies Act and therefore does not have a separate legal personality.
Article 181A of the Code of Organisation and Civil Procedure deals with the written pleading filed against entities with a distinct legal personality and all is required is that the name of the entity is mentioned. Any entity which is not a distinct legal personality has to be referred to by its members.
Therefore, the judicial letter filed by ALC Limited, should not have been directed to BM Tunnel JV. The notification to the joint venture was not a correct notification and therefore, could not become an executive title. The same judicial letter was served upon the two companies that formed the joint venture, but it still cannot be rendered as an executive title, since one was not notified, while the other contested the claim.
Magistrate Vella, then moved to declare that the notification was not done according to law and therefore, did not become an executive title and the garnishee order was revoked.
Avv. Malcolm Mifsud
Mifsud & Mifsud Advocates