EN SUPREME COURT
Law Office
Originally: 2016/891
The Verdict: 2016/3775
Decision Date: 30.06.2016
THE CASE ARISING FROM THE WORK 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 claim and final account report prepared by the defendant by the expert committee by the court, the contractor’s objections to these reports, the contents of the defendant municipal lawyer’s petition dated October 05, 2014, the contract and its attachments, as well as all the evidence are suitable for establishing a verdict and for Supreme Court review. 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.
(818 SK Md. 355) (6098 SQ Md. 470)
Case:
Although the above-mentioned provision was requested to be examined by the defendant’s attorney at trial, the court of appeal received the plaintiff’s deputy Attorney … and the defendant’s deputy Attorney … on the day set for the hearing. After it was understood that the appeal petition was submitted within the time limit and the party deputies who were present were listened, the file was returned to its place due to a deficiency and completed, and the document in the file was read and discussed and decided:
Decision: The case arose from the work contract and was opened with the request to determine the completion of temporary acceptance deficiencies, the 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, and the cost of additional works that should be performed within and/or outside the project subject to the contract and not included in the contract price. The case relates to the collection of the business fee, payments made on behalf of the defendant and to his 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 decision of the court regarding the partial acceptance of the case has been appealed by the defendant municipal lawyer.
1-According to the articles in the file, considering the evidence on which the decision was based and the legally compelling reasons, and in particular 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 works. October Dec. 06, 2007 The contract dated 06.06.2007 and its annexes are not subject to dispute between the parties. The plaintiffs are the contractor, and the defendant municipality is the business owner. 6 Of the contract. in its article, it is connected to the provision that the contract is a turnkey collective pay contract and the total cost is determined as 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 issued by the court due to the fact that it has been submitted to the judiciary”, 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 Jul. Upon this interim decision of the court, additional reports of the expert committee dated 08.10.2013 and 03.04.2014 were obtained from the expert committee, the final account was prepared by the experts and the final account file was 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; paid paid October October 20, 20, 20, 3.252.933,28 euros additional work was not performed by the contractor as claimed by the experts, 3.212.315,53 euros additional payment was made to the contractor for the works that the municipality refused to do as a result of the incomplete calculation, the calculations made by the experts were incorrect and incomplete, the amount to be paid to the contractor was overestimated, 3.252.933,28 euros additional work was not performed by the contractor as claimed by the experts, 368.346,40 euros advance deduction should be included in the account as an offset, they had to make an additional payment of 3.212.315,53 euros to the contractor for the works that the municipality stopped doing as a result of the incomplete calculation, with the approval of the expert.
a big mistake was made in the calculation of the additional work performed Oct., it was claimed that the screen of the trains was frozen as a very simple deficiency and the value of 56,000 euros was added, suggesting that it was impossible to make an exact calculation in this way, and the court ruled 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, the report has been issued due to the fact that there are issues that require technical information to be resolved by the court. Information was received from the expert committee.
Therefore, it is clear that the court decided without clarifying the technical issues and without meeting the defendant’s objections. Again, given the scope of the file and the content of the defendant’s lawyer’s petition, 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 of the defendant, which was issued by the expert committee of the court, as well as the contractor’s objections to these reports, 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 for 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, among the receivables included in the lawsuit petition are “A receivables made under the contract and in the amount of 2,473,850.09 euros that have not yet been paid as of the provisional acceptance date”, “The cost and commissions of the letters of guarantee held by the defendant until the date of the lawsuit amount to 64, Dec.523.09 euros.”, “1.372.314,14 euros for additional works performed with the approval of the defendant administration” and “Payments and services made on behalf of the defendant within and / or outside the scope of the project based on the contract, the cost of the works that are not included in the contract price and must be performed” 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. Oct payable in the additional expert report dated 03.04.2014, the amount of 18% VAT payable to the contractor based on the provision was calculated as 1.279.855,75 euros, and VAT of 1.279.855,75 euros was added to the receivable of the contractor included in the provision in the amount of 8.911.530,02 euros. Although the lawsuit has not been filed by duly paying the fees in terms of VAT receivables, it is not appropriate to create a provision that includes the VAT amount.
Again, in the justification section of the court decision, it is stated that “The request for expenses related to letters of guarantee has been rejected”. 51 of the additional expert committee report dated October 03, 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 accurate to rule that the request for expenses related to the letters of guarantee was rejected in the justification section of the court decision.
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. the decision was made unanimously on 30.06.2016. It has been decided that upon the request of the defendant, the advance payment may be returned to him, and a request for correction of the decision may be filed against the decision within 15 days from the date of notification.