EN SUPREME COURT
Law Office
Originally: 2016/891
The Verdict: 2016/3775
Decision Date: 30.06.2016
THE CASE ARISING FROM THE EMPLOYMENT CONTRACT – DECISION ACCORDING TO THE RESULT BY TAKING ADDITIONAL REPORTS IN ACCORDANCE WITH THE DEFINITION AND SUPERVISION OF THE Supreme Court – THE RESULT OF THE October TESTIMONY DECISION
SUMMARY: The final report of the claim and final account issued by the court by the defendant’s expert committee, as well as the contractor’s objections to these reports, as well as the contents of the defendant’s municipal lawyer’s petition dated October 05, 2014, the contract and its annexes, as well as all the evidence are suitable for establishing a verdict and for Supreme Court review. While Oct should have been decided according to the result by taking an additional report, it was not correct to reach a decision with incomplete examination.
(818 SK Md. 355) (6098 SQ Md. 470)
Case: Although the defendant’s attorney requested a trial examination of the above-mentioned provision, the plaintiff’s deputy Attorney … and the defendant’s deputy attorney … arrived at the appeal on the day set for the hearing. After it was understood that the appeal petition was submitted within the time limit and the lawyers of the parties present were listened, the file was returned to its place due to deficiencies and completed, and the document in the file was read and discussed and decided:
Decision: The case arises from the work contract, determination of completion of temporary acceptance deficiencies, collection of receivables made under the contract and not subject to claim, the cost of additional works performed with the approval of the respondent administration, as well as the cost of additional works performed within and/or outside the project subject to the contract and not included in the contract price are requested. The collection of the work fee relates to the payments made to the defendant’s name and account, the collection of cash collateral receivables, the return of letters of guarantee and the collection of expenses and commissions belonging to letters of guarantee until the date of the case. The court’s decision to partially accept the case has been appealed by the defendant municipal lawyer.
1-The articles in the file, the evidence on which the decision was based and legally compelling reasons, especially considering that there was no error in the evaluation of the evidence, the defendant’s other appeals outside the scope of the following paragraph had to be rejected by not being considered on the spot.
Dec 2-Dispute between the parties Light Rail System 1. The stage is due to construction work. October Dec.1, 2007 The contract between the parties dated 06.06.2007 and its annexes are not subject to dispute. The plaintiffs are the contractor, and the defendant municipality is the business owner. 6 Of the contract. in the article, it is stipulated that the contract is a turnkey wholesale contract and is made over a total price of 109.257.601.09 euros.
October 2 Jul 2012 The court conducted on-site reconnaissance and obtained the original expert report dated 06.03.2012 and the additional expert report dated 28.11.2012 from the expert committee. It was stated that the final account should be arranged by the court due to the fact that it has been submitted to the judiciary” and it was decided to issue the final account and obtain an additional report from experts in order to determine the debt-October status by evaluating the plaintiff’s claims.
Oct Decrees of the expert committee on this interim decision of the court, additional expert committee reports dated 08.10.2013 and 03.04.2014 have been received from the expert committee, the final account has been prepared by the experts and the final account file has been added to the expert report. The defendant’s attorney objected to the additional expert October report dated 03.04.2014 with his petition dated 05.05.2014. In the petition of the defendant’s attorney; Paying paid October October 19, 2019, the final claim summary made by the experts calculations were made incorrectly and incompletely, the amount to be paid to the contractor under the contract was overestimated, as the experts claim,
3,252,933.28 euros of additional work was not performed by the contractor, 368,346.40 euros of advance deduction should be included in the account as an offset, the municipality had to pay 3,212,315.53 euros extra to the contractor for the works that he stopped doing as a result of incomplete calculation, additional works performed with the approval of the expert, the additional works performed with the approval of the a big mistake was made in the calculation, as a very simple deficiency, it was claimed that the screen of the trains was frozen and the value of 56,000 euros was added, suggesting that it was impossible to make an accurate calculation in this way, and the court established a provision without receiving a report from experts to respond to the objections of the defendant’s attorney of the technical nature listed as an example above.
However, due to the presence of issues requiring technical information to be resolved by the court, a report was received from the expert committee. It is obvious that the court decided without clarifying the technical issues and without meeting the defendant’s objections. Again, within the scope of the file and the content of the petition of the defendant’s lawyer, the defendant business owner municipality
It is understood that the final account of the work has been prepared by the company, and this final account should be examined and evaluated by experts.
In this case, the final claim and final account report issued by the court by the defendant’s expert committee, as well as the contractor’s objections to these reports, as well as the content of the defendant’s petition dated October 05, 2014, the contract and its annexes, as well as all the evidence, are suitable for establishing a verdict and Supreme Court supervision. While it should have been decided according to the result by taking an additional report, it was not correct to reach a decision with incomplete examination. Oct.
On the other hand, the receivables included in the lawsuit petition include “A receivable in the amount of 2,473,850.09 euros made under the contract and not yet paid as of the date of provisional acceptance”, “The cost and commissions of the letters of guarantee held by the defendant until the date of the case are 64,523.09 euros”, “1,372,314.14 euros for additional works performed with the approval of the defendant administration” and “The cost of works that are not included in the contract price and must be performed on behalf of the defendant within the scope of the project based on the contract and /or Dec payments and services made are included”.
it was requested that the VAT to be collected by adding VAT to the ”4.437.963,89 euros” amount, but the VAT amount was not calculated and the fee was not paid. paying October 18% VAT to the contractor based on the provision in the additional expert report dated 03.04.2014, the amount of 1.279.855,75 euros was calculated and 1.279.855,75 euros VAT was added to the receivable of the contractor included in the provision in the amount of 8.911.530,02 euros. Although there is no case duly filed with respect to VAT receivables by paying fees, it is not correct to establish a provision stating that the VAT amount is also included.
Again, in the justification of the court decision, it is stated that “The request for expenses related to the letters of guarantee has been rejected”. However, the Oct.51 of the additional expert committee report dated 03.04.2014, which was taken as the basis for the decision. 3 of the table “Evaluation of additional claims – definitive summary of merit” on the page. Oct. in the line “Expenses and commissions related to letters of guarantee between Dec. 24.12.2009-Dec. 21.12.2010” are shown as 18.418.412.24 euros, and it is understood that this amount is included in the amount of 8.911.530.02 euros allocated for the provision. For this reason, it was also not correct to state that the request for expenses related to the letters of guarantee was rejected on the grounds of the court decision if it was ruled.
It was deemed appropriate to overturn the decision for the reasons explained above.
Conclusion: The defendant’s other appeals were rejected for the reasons explained in the first paragraph above, the decision was overturned in favor of the defendant business owner municipality, for the reasons explained in the second paragraph, the trial fee of TL 1,100.00 was collected from the plaintiff and given to the defendant represented by his attorney at the hearing at the Supreme Court, the appeal fee was paid by himself. It was unanimously decided on 30.06.2016 that the advance payment should be returned to him at the request of the plaintiff, and that a request for correction of the decision may be filed against the decision within 15 days from the date of notification.