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Neighbors of the housing development site in Għajnsielem noticed that the subsequent excavations were not being carried out according to the protocol issued by the architect. The work is to prepare for the construction of rooms on three levels, 16 apartments and three penthouses.
After a formal notification to the Building Construction Authority (BCA), and an update by the builders, the neighbors noticed that the excavation work along the boundary wall was carried out in haste, and therefore, a hole in the battle. wall that led to their own property.
According to the neighbors, this is a threat to their privacy, and these actions are a serious threat to the stability of the border wall. They also said that the work has not been done according to the new culture.
They also reported to the BCA and issued a restraining order. After a number of lawsuits were filed between the parties; the neighbors filed a lawsuit before the law courts in Gozo to seek compensation.
The defendants argued, at trial, and also at the sentencing hearing.
Article 20 (2) Additional rules 623.06 ‘Avoidance of damage to the Property Laws of third parties’ instructs third parties affected by the development of others to submit their cases to arbitration .
In fact, construction disputes are not only about personal injury claims but also disputes arising out of damage to third party property caused by construction work on a site. almost sent to arbitration, if the damage occurred. by a third party that does not interfere with the stability of its assets and does not interfere with its users; or compensation for damages claimed by third parties does not exceed one million euros (€1,000,000).
In the first trial filed on October 28, 2022, case ref number 105/2021 BS, the court rejected the first defense of the defendants, in which they said that the court had no jurisdiction to decide case, because they said, the dispute should be resolved in arbitration. The plaintiffs brought this first plea, basing their plea on article 20 (2) of SL 623.06.
The Court of Magistrates (Gozo) in its jurisdiction asserted the territorial jurisdiction in its original judgment and clearly indicated that mandatory arbitration was unlawful. The court held that the competent forum for cases involving human rights is a common court.
After a detailed study of SL623.06, and the Arbitration Law, the court pointed out that the law contains a provision that prohibits mandatory arbitration in the following situations: when the damage the stability of the property of third parties, cause inconvenience to users or wherever. the claim is over one million euros.
The court also emphasized that the bylaws often refer to the exclusion of damages by ‘a court of law or arbitral award’; therefore the court of law will not rule on mandatory arbitration in cases involving construction.
In addition, the court found that the alleged harms and damages suffered by the plaintiffs on some of their claims were attributable to damages resulting from all or some of competitors in the property of the plaintiff, which weakened the stability of their own property. The plaintiffs also claimed that the actions interfered with their livelihoods and their personal property.
In view of the laws cited by the defendants, the jurisdiction of the court to decide this matter cannot be said to be excluded.
The court also said that a decision different from the one it had made in this first trial would further prolong the matter between the parties and therefore the court ordered the case to be heard on merits.
Rebecca Mercieca is a Consultant, Azzopardi, Borg & Associates.
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