The Appeals Court upheld a request for a retrial because the court had previously applied the wrong article of law on collation. This was held in a Court of Appeal judgement presided over by judges Christian Falzon Scerri, Josette Demicoli and Simone Grech in Jack Attard et vs John Farrugia et. The judgement was delivered on 8 June 2026.
In the sworn application filed on 4 November 2016, all the parties, except John Farrugia and Peter Paul Cauchi, are heirs of Maria Attard. On 25 April 2010, Maria Attard sold to her daughter, Grace Farrugia, and her husband John, her one-half undivided share in a property in Nadur for €70,000. Three days later Maria Attard sold to the same daughter one-quarter of another property in Nadur for €7,000. The contract also mentioned that Maria Attard owed her daughter over €220,000 in loans. On 2 April 2012, Maria Attard transferred one-fourth of the second property to her other daughter, Carmen Cauchi, and her husband Peter Paul as compensation for the care they provided to her mother. This was valued at €8,000. Maria Attard passed away on 21 April 2015.
The plaintiffs alleged that Maria Attard’s children were not exempt from collation for donations the deceased gave her children. They further alleged that the three contracts were in fact donations under the guise of sale and asked the court to declare to include these properties in the deceased’s estate. They asked the court to state that Maria Attard never owed money to her two daughters.
The Magistrates’ Court in Gozo dismissed the claims in a judgement delivered on 28 March 2025. The plaintiffs appealed this judgement. The appeal was successful as regards two of the contracts—those of 26 and 29 April 2010. The Court of Appeal declared that Maria Attard did not owe any money to Grace Farrugia and ordered that these properties form part of the deceased’s estate. The Court of Appeal held that if Grace Farrugia was to receive Maria Attard’s share in the properties for services rendered, it was unclear why a public deed was used; in all probability she was to be compensated otherwise, but the deed gave the impression she was owed money.
However, from the evidence, it did not seem that Attard had any debt towards her daughter.
John and Grace Farrugia filed for a retrial under Article 811(e) of the Code of Organisation and Civil Procedure, alleging that the wrong law was applied. Article 913 of the Civil Code was applied instead of Article 920.
The Court of Appeal held that in a retrial there are two stages. The first stage is when one argues that the judgement is null and the second stage is when the case is heard again. These are two separate stages.
The Farrugias argued that not the entire judgement should be subject to a retrial under Article 813 of the Code of Organisation and Civil Procedure (COCP). Not all heads of a judgement may be attacked, as parties may agree with part of the judgement. This was held in the decision of 17 November 1873 in Giuseppe Piccinino vs Giuseppe Cachia. A retrial may be targeted to one or more heads of the judgement.
In this case the Farrugias argued that the Court of Appeal could not apply Article 913(1) of the Civil Code, since John Farrugia was not an heir and therefore Article 920 should have been applied. Article 913 provides that if children or grandchildren inherit from a parent or grandparent, any gifts those heirs already received from that ancestor must be counted toward their share of the inheritance so that the other co-heirs receive a fair portion, unless the donor directed otherwise; this rule applies even if the heirs have already made an inventory of the estate. Article 920 states that gifts given to the spouse of an heir are excluded from collation. However, if a gift was given jointly to both spouses but only one of them is an heir, the heir must include their share of that joint gift when calculating the estate distribution.
This issue concerned the fourth and fifth heads of the judgement, while the remainder was accepted.
A successful request for a retrial requires showing that the court applied the wrong law, not merely that it interpreted the law wrongly. The Court of Appeal observed that, in the judgement being attacked, the court did not cite the article of law but concluded the contracts were simulated. The appellate court’s first judgement took it for granted that once the contracts were declared null for simulation, the property would form part of the deceased’s estate and therefore applied Article 913(1) of the Civil Code.
Therefore, the Court of Appeal held that although the law was not quoted in its first judgement, it was clear the court treated John Farrugia as an heir and thus applied Article 913(1).
The plaintiffs argued that John Farrugia did not appear directly on the contracts but acted by power of attorney; he was a party to the contracts declared simulated because he was married to the heir. It was Grace Farrugia who benefited from the contracts and therefore Article 913 applied. They argued the correct article had been applied in the Court of Appeal’s first judgement.
The Court was not completely convinced by this argument. The Court of Appeal found that the two April 2010 sale contracts were in substance donations from Maria Attard to the Farrugia spouses together, not donations solely in favour of Grace Farrugia. Because the appellate court treated the contracts as donations to both spouses, it should have decided the plaintiffs’ fourth claim under Article 920 of the Civil Code (which governs collation of donations to spouses) rather than under Article 913. The appellants’ complaint about misapplication of the law therefore succeeds only as to the fourth and fifth heads of the judgement of 11 November 2025. The Court thus upheld the judgement as to its first three heads but annulled it insofar as it dealt with the fourth and fifth heads, ordered a retrial on the plaintiffs’ fourth claim and left each party to bear its own costs for this phase.
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