T.C.
SUPREME
13. law office
Mainly No:2015/5276
Decision No:2016/11823
K. Date:28.4.2016
COURT : Istanbul 7. The Court Of First Instance
DATE : 11/09/2014
NUMBER : 2009/241-2014/131
At the end of the trial of the receivable case between the parties, the case was reviewed and considered as a Dec of necessity upon appeal by the plaintiff’s lawyer within the period of the provision made for the partial acceptance or rejection of the case for the reasons written in the application.
decision
The plaintiff claimed that the defendant company had acted as a lawyer in various files, but he had resigned rightfully due to non-payment of trial costs, and asked the defendant to pay the attorney fees related to the lawsuit and enforcement proceedings that were pursued in favor of the defendant company, as well as the costs that he incurred from the defendant.
The defendant has requested the dismissal of the case.
With the partial acceptance of the plaintiff’s case, the court decided to take TL 8,765.60 to tl 7,093.00 from the defendant together with the advance interest that will be processed from the date of the case on 04.12.2008 to TL 1,692.62 and give it to the plaintiff, reject the request for an excess; the decision was appealed by the plaintiff.
1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the plaintiff’s other appeals outside the scope of the following paragraph must be rejected.
2-the plaintiff’s Lawyer, Litigation and enforcement proceedings relating to a bet resigning from right to attorneys ‘fees with the costs asked for; defendant argued that the plaintiff’s charges they qualify; by adopting the right of the resignation by the court is an expert of Case Files calculated by enforcement and attorneys’ fees) in terms of partial decided upon the adoption of the case, opposed side in terms of the retainer, yet things didn’t turn out that by justifying, it was decided that the request be rejected.
In accordance with the provision of Article 164/last article of the Law on Advocacy, the plaintiff’s lawyer can now also demand from the defendant’s client all the opposing attorney’s fees due to the fact that the plaintiff’s resignation was justified. The court decides that the refusal of this part of the request is contrary to the procedure and the law and requires a violation.
CONCLUSION:The above 1.refusal of the plaintiff’s other appeals for the reason described in paragraph, 2.it was unanimously decided on 28/04/2016 that the decision should be OVERTURNED for the plaintiff’s benefit for the reason described in the paragraph, that the fee received in advance should be returned on request, and that the way to correct the decision was closed in accordance with Article 440 / III-2 of the CMB.
Chairman Member Member Member Member
R.Unal A.S.Erkuş N.Ozer S.Bozer A.Arslan
LOCAL COURT DECISION:
EVIDENCE AND JUSTIFICATION :
Even if the defendant has not signed an attorney’s fee agreement with the company, his client has been excluded from the case by the deputy plaintiff. defendant attorney fee contract is signed with the company, which will connect between the parties claimed that because of the provisions of this convention should be applied, although each company is a separate legal entity and will connect these entities with the parties of the contract to be made, because the attorney will receive a fee attorney fee contract dated 01.09.2002 that will not be implemented in the case was decided.
According to Article 173/2 of the Law on Advocacy, “All taxes, fees and charges and expenses necessary for the performance of the work entrusted to the lawyer or for obtaining its result after it is performed are under the responsibility of the business owner. If the provisions of ”Paid by the lawyer at the first request to the lawyer or where necessary” are considered as a whole, the failure of the business owner to fully and timely fulfill the financial obligations assumed against the lawyer is considered a justified reason for resignation. Considering the incident that is the subject of the lawsuit, Beyoğlu 19 was found by the plaintiff. 21.11.2008 and 1…. after evmiye bolu’s notice of warning, Beyoğlu requested to pay expenses related to the execution files and other files that she had followed, but this money was not paid, 19. In this way, the plaintiff has come to the conclusion that the lawyer’s resignation is justified when the notary public informed him that he had resigned from the attorney’s office with the notice numbered 00821 evmiye dated 16.01.2009.01.2009.
In total, Bakırköy 1, in which the attorney of the plaintiff must also rule on the counter-attorney fees to be determined from the enforcement and case files followed by his client in the reclamation petition, and this calculation has not been made by the experts. File No. 2008/… of the Commercial Court of First Instance and Istanbul 9. 2007/…. of the Executive Directorate. although he has requested the collection of the proxy fee against a total of 8.321,00 TL from the numbered follow-up files in favor of his client; In accordance with Article 164 / last of the Law on Advocacy, at the end of the case, the attorney’s fee, which will be charged to the counterparty based on the decision and tariff, belongs to the lawyer. Therefore, it is possible that the plaintiff will be entitled to the opposing party proxy fees that will be raised in the dispute-related affairs. However, this work must the conclusion of the verdict, according to the jurisprudence of the Supreme Court resident of the case, considering the stage has come when the assessment is made in accordance with the Mk 2 trade petitions in the court of the plaintiff’s resignation while he was yet in the stage of the case, the execution file is opened and a few request was considered to have prepared the following request since attorney fees against the plaintiff doesn’t demand, since this claim is dismissed.
The execution follow-up files and case files that the plaintiff provided legal assistance to were brought by the plaintiff and an expert review was conducted on how much legal assistance the plaintiff provided would be and a report was obtained from the expert. Since the claimant’s receivables were calculated to be TL 8,785.60 in the expert report, which was also respected by our court, it was decided that the claimant’s case would be accepted over this amount and the provision was established as follows.
PROVISION : According to the reason and justification explained above,
1-With partial acceptance of the plaintiff’s case, TL 7,093.00 of 8,765.60 will be taken from the defendant together with the advance interest that will be processed from the date of the case on 04.12.2008 to TL 1,692.62 and given to the plaintiff, rejection of the claim for the surplus,
2-According to the law on fees, 598.77 TL will be deducted from 244.00 TL received in advance and through reclamation of the ilam fee and 354.77 TL will be collected from the defendant,
3-A total of 1,308.00 TL, including 108.00 TL costs incurred by the plaintiff, 1,200.00 TL expert fee, 667.08 TL, which is 51% according to accepted and rejected rates, and 244.00 TL in advance and 911.08 TL correctional fee, including 911.08 TL collected from the defendant and paid to the plaintiff,
4-Paying the attorney’s fee of 1,500 TL for the plaintiff represented by the attorney to the plaintiff by collecting the attorney’s fee from the defendant,
5- Since the defendant represents himself with a proxy in the case, the 1,500 TL power of attorney fee in terms of the rejected part is taken from the plaintiff and given to the defendant
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