Allegation That The Lawyer Did Not Receive An Advance From The Client For Expenses Burden Of Proof
Judicial Court 13th Civil Chamber 2016/2647 E., 2016/12131 K.
At the end of the trial of the cancellation of the objection case between the parties, the judgment given for the partial acceptance and partial rejection of the case for the reasons written in the judgment was appealed by the defendant’s lawyer with a hearing and the plaintiff’s lawyer without a hearing, and a summons was sent to the relevant parties. On the appointed day, the hearing was started with the attendance of the appellant attorney … and the plaintiff Asil …, and after the oral explanations of the attorney and the party present were heard, it was left to another day for the decision. This time, it was determined that the petition for appeal was in due time and the file was examined, the requirements were discussed and considered.
DECISION
The plaintiff claimed that the fee that should be paid in accordance with the attorney’s fee agreement concluded between the defendants and his executor was not paid, that he was unfairly dismissed, that the execution proceeding he initiated for the collection of his receivables was objected, and asked for the annulment of the objection and a decision for 40% compensation.
The defendants argued that the muris did not have legal capacity and requested the dismissal of the lawsuit.
The court’s decision on the dismissal of the lawsuit because the muris did not have legal capacity on the date of the contract was reversed by the decision of our Chamber dated 7.2.2013 and numbered 2012/8048 main 2012/2583 decision, and the court decided to partially accept and partially reject the lawsuit by complying with the reversal decision; the judgment was appealed by the plaintiff and the defendants.
1-According to the writings in the file, the evidence on which the decision is based and the reasons that are in accordance with the law and especially the fact that there is no inaccuracy in the appreciation of the evidence, all appellate objections of the plaintiff and the other appellate objections of the defendants should be rejected.
2-Article 173/2 of the Attorneyship Law stipulates that “All taxes, duties, fees and expenses required for the execution of the work entrusted to the attorney or for obtaining the result after the work has been done are under the responsibility of the owner of the work and shall be paid by the attorney to the attorney or where necessary upon the first request. In order for these expenses to be incurred by the lawyer, a sufficient advance payment must be made by the business owner.” In accordance with this provision, it should be accepted as a presumption that all the expenses necessary for the performance of the work have been paid to the lawyer by the business owner at the beginning of the work, and the lawyer who claims otherwise, in other words, who claims that he did not receive an advance for the expenses from his client, is obliged to prove this claim. In the case in question, since the plaintiff lawyer did not fulfill this burden of proof that “the costs were not received at the beginning of the work”, it should be accepted that the costs related to the lawsuits were given to the lawyer at the beginning of the work, while the court has decided by including the 1.461,90 TL trial expenses included in the court order subject to the proceedings to the plaintiff lawyer’s receivable, which is contrary to the procedure and the law and requires reversal.
3- The plaintiff filed an execution proceeding against the defendants, who are the heirs of Melahat E…, for the collection of the portion not paid by the defendants’ heirs due to the attorneyship service he provided to the defendants’ heir, and upon objection, he requested the cancellation of the objection and the denial compensation. The court partially accepted the case and decided to cancel the objection and to collect the 40% execution denial compensation of 12.431,90 TL, which is the unaccepted part of the receivable, from the defendant heirs. Article 67/3 of the BEC stipulates that “if the objector is a parent, guardian or heir, the provision of compensation for the debtor depends on the proof of bad faith”. In the concrete case, it could not be claimed and proved that the defendant objected to the execution in bad faith. As such, while the court should reject the claim for execution denial compensation, the written judgment is contrary to the procedure and the law and is a reason for reversal.
CONCLUSION: For the reasons explained in the first subparagraph above, all the plaintiff’s and the defendants’ other appellate objections are rejected, for the reasons explained in the second and third subparagraphs, the decision is reversed in favor of the defendants, the 1350,00 TL hearing attorney fee is taken from the plaintiff and paid to the defendants, the 141,60 TL fee taken in advance is returned to the appellant, the 387,10 TL fee taken in advance is returned to the appellant defendants upon request, it was unanimously decided on 03/05/2016.