New pleas cannot be raised in an appeal of any of the parties. This was held in Saviour Camilleri vs Noel Borg, a judgement delivered by the Court of Appeal on 16 May 2025. The court was presided by Mr Justice Lawrence Mintoff.
An appeal was lodged by Camilleri (the Plaintiff), while a cross appeal was lodged by Borg (the Defendant). The Magistrates Court had ordered the Defendant to pay the Plaintiff €4,720, which was a little less than the Plaintiff claimed.
The Plaintiff had sued the Defendant for unpaid professional fees after the former was engaged to prepare designs for a shop. The original claim was €5,900. The Defendant objected to this claim stating that the work was not carried out and the amount is exaggerated. The Defendant filed a counter-claim asking for damages which amounted to €5,082.
The Magistrates’ Court in its judgement explained that it was not contested that the Plaintiff was engaged to give services and the agreed amount was €7,700. The Plaintiff argued that he was engaged to provide a design of a shop, while the Defendant argued that it was a turnkey project. The Defendant held that he was not given a copy of the designs. The Magistrates Court held that although there were two opposing versions, it could decide the case. The court quoted from Emanuel Ciantar vs David Curmi noe, decided on 28 April 2003 before the First Hall of the Civil Court, which held that when there is conflicting evidence the court must decide on the balance of probability. There is no need for the court to decide the case on certainty. In another judgement, Maria Xuereb et vs Clement Gauci et, decided on 24 March 2004, the Court of Appeal ruled that it could decide a case when there is conflicting evidence, on the basis as to whether there is any corroborating evidence. Thus, the court can decide whether one version is more credible than the other.
As to this particular case, the Magistrates Court did not agree that the assignment was a turnkey project because this was not mentioned in the Defendant’s affidavit. Secondly, a turnkey project would entail that the contractor would carry out all the works and at the end give the keys to the owner. The amount agreed of €7,700 plus VAT could never have covered all the works.
The Magistrates Court also disagreed with the Plaintiff who said that his task was limited to the design of the shop. The Parties had exchanged notes where the Plaintiff was to carry out supervision of the works. The Court decided that all services were provided apart from the supervision. The Defendant argued that he did not have copies of the designs, but he was at the same time approving the works. In fact, he had sent a contractor to the Plaintiff to obtain a copy of the plans.
As to the plea that the sum sought was exaggerated, the court held that this sum was agreed. Article 993 of the Civil Code states that contracts should be executed in good faith. As such the court concluded that the amount that the Plaintiff should be awarded was €4,720.
The Plaintiff appealed the judgement because it did not include the interest due that should be added to the main claim. The Defendant also filed a cross appeal.
As to the interest, the Plaintiff argued that this should start from the date of the invoice. However, the Magistrates Court ordered that interest should start from the date of the judgement.
As to the Defendant’s cross appeal, the Defendant held that the Plaintiff did not fulfil his obligations. The Plaintiff pointed out that this was not raised in the case. The Court of Appeal agreed. The Court of Appeal held that no new arguments could be made that were not part of the pleas filed in the beginning of the case.
The Court of Appeal rejected both appeals.
Av. Malcolm Mifsud
Founding Partner
Mifsud & Mifsud Advocates
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