Obtaining An Additional Report Convenient For Sentencing And Supreme Court Supervision And Making A Decision In Accordance With The Result
T.C. JUDICIARY
15th Civil Chamber
Basis: 2016/891
Decision: 2016/3775
Date of Decision: 30.06.2016
LAWSUIT ARISING FROM THE CONTRACT OF WORK – OBTAINING AN ADDITIONAL REPORT SUITABLE FOR JUDGMENT AND JUDICIAL REVIEW AND MAKING A DECISION IN ACCORDANCE WITH THE RESULT TO BE FORMED – INAPPROPRIATE TO REACH A VERDICT WITH INCOMPLETE EXAMINATION – THE VERDICT IS REVERSED
SUMMARY: While the court should have obtained an additional report from the expert committee, which is suitable for judgment and Supreme Court of Appeals supervision in a way to answer the objections by evaluating the final progress and final account report issued by the defendant and the objections of the contractor to these reports and the content of the objection petition of the defendant municipality’s attorney dated 05.05.2014, the contract and its annexes and all the evidence, and should decide in accordance with the result to be formed, it was not correct to reach a judgment with incomplete examination.
(818 S. Code Art. 355) (6098 S. Code Art. 470)
Case: The appeal of the judgment dated and numbered above was requested by the defendant’s attorney, and on the day appointed for the hearing, the plaintiff’s attorney … and the defendant’s attorney … came. After it was understood that the petition for appeal was filed in due time and the lawyers of the parties present were heard, the file returned to its place due to deficiency was completed and returned, the papers in the file were read and the matter was discussed and considered:
Decision: The lawsuit arises from the work contract and is related to the determination of the completion of the provisional acceptance deficiencies, the collection of the receivable made within the scope of the contract and not connected to the progress payment, the cost of the additional works performed with the approval of the defendant administration and the works within and / or outside the project based on the contract and not included in the contract price but had to be done, the collection of the payments and services made on behalf and account of the defendant, the collection of the cash collateral receivable, the return of the letters of guarantee and the collection of the costs and commissions of the letters of guarantee until the date of the lawsuit. The court’s decision on partial acceptance of the lawsuit was appealed by the defendant municipality’s attorney.
1- According to the writings in the case, the evidence on which the decision is based, the reasons that are in accordance with the law and especially the appreciation of the evidence, the other appellate objections of the defendant other than the scope of the following paragraph have not been deemed appropriate and should be rejected.
2-The dispute between the parties arises from the construction work of the Light Rail System Phase 1. The contract dated 06.06.2007 and its annexes between the parties are not in dispute. The plaintiffs are the contractor and the defendant municipality is the owner. Article 6 of the contract stipulates that the contract is a turnkey lump sum contract and was concluded for a total price of 109,257,601.09 euros.
The court conducted an on-site discovery and received the original expert report dated 06.03.2012 and the additional expert report dated 28.11.2012 from the expert committee, and upon the objection of the parties to the additional expert report, with the interim decision dated 07.03.2013, it was stated that “the provisional acceptance was made between the parties, but the final acceptance and final account were not issued and the final account should be issued by the court since the work has been transferred to the judiciary”, and it was decided to obtain an additional report from the experts to determine the receivable-debt situation by removing the final account and evaluating the plaintiff’s demands. Upon this interim decision of the Court, additional expert reports dated 08.10.2013 and 03.04.2014 were received from the expert committee, the final account of the work was prepared by the experts and the final account file was added to the expert report. The defendant attorney objected to the additional expert report dated 03.04.2014 with a petition dated 05.05.2014. In the objection petition, the defendant’s attorney stated that the calculations regarding the final progress payment invoice made by the experts were incorrect and incomplete, the amount to be paid to the contractor under the contract was overestimated, 3.252.933,28 euros of additional work was not done by the contractor as claimed by the experts, 368.346,40 euros should be included in the account as a deduction, and as a result of the incomplete calculation made by the experts, the municipality was obliged to pay the contractor an extra 3.212. 315,53 euros, that there was a big mistake in the calculation of the additional works made by the experts with the approval of the administration, that it was not possible to show the freezing of the screen of the trains as a very simple deficiency and to put a value of 56.000 euros and to make a final calculation in this way, and the court has made a judgment without obtaining a report from the experts in a way to answer the objections in terms of the technical objections of the defendant’s attorney in the objection petition, which are listed as examples above. However, since there are issues that require technical knowledge, the court has obtained a report from a committee of expert witnesses. As such, it is obvious that the court has established a judgment without clarifying the technical issues and without meeting the objections of the defendant. Again, it is understood from the scope of the file and the content of the objection petition of the defendant attorney that the final account of the work has been prepared by the defendant municipality, and this final account should also be examined and evaluated by the experts.
In that case, the court should obtain an additional report from the expert committee, which is suitable for judgment and Supreme Court of Appeals supervision, in a way to answer the objections by evaluating the final progress and final account report issued by the defendant and the objections of the contractor to these reports and the content of the objection petition of the defendant municipality’s attorney dated 05.05.2014, the contract and its annexes and all the evidence, and make a decision in accordance with the result to be formed, but it was not correct to reach a verdict with incomplete examination.
On the other hand, among the items of receivables included in the lawsuit petition, “2.473.850,09 euros, which was made within the scope of the contract and which has not yet been paid although it should be connected to the progress payment as of the date of provisional acceptance”, “64.523,09 euros, which is the amount of expenses and commissions incurred until the date of the lawsuit for the letters of guarantee withheld by the defendant”, “1.372.314,14 euros for additional works carried out with the approval of the defendant administration. 372.314,14 euros” and “4.437.963,89 euros, which is the cost of the payments and services made on behalf and account of the defendant for the works within and/or outside the project based on the contract and which are not included in the contract price but had to be carried out” by adding VAT, but the VAT amount was not calculated and the fee was not paid. In the additional expert report dated 03.04.2014 taken as a basis for the judgment, the VAT amount at the rate of 18% to be paid to the contractor was calculated as 1,279,855.75 euros, and the VAT amount of 1,279,855.75 euros is included in the 8,911,530.02 euro contractor receivable. Although there is no duly filed lawsuit in terms of VAT receivable by paying the VAT fee, it was not correct to make a judgment including the VAT amount.
Again, in the justification part of the court decision, it is stated that “the request for expenses related to the letters of guarantee was rejected”. However, in the 3rd row of the table “Evaluation of additional claims – final progress invoice” on page 51 of the additional expert committee report dated 03.04.2014 taken as basis for the judgment, “The costs and commissions of the letters of guarantee between 24.12.2009 and 21.12.2010” is 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 receivable. For this reason, it was not correct to state that the claim for costs related to the letters of guarantee was rejected in the justification part of the court decision, although it was ruled.
It is deemed appropriate to revoke the decision for the reasons explained above.
Conclusion For the reasons explained in paragraph 1 above, the other appellate objections of the defendant are rejected, for the reasons explained in paragraph 2 above, the decision is reversed in favor of the appellant defendant municipality, 1. 100,00 TL hearing attorney fee to be taken from the plaintiff and given to the defendant who was represented by an attorney at the hearing at the Court of Cassation, the prepaid appeal fee to be returned to the appellant defendant upon request, and it was unanimously decided on 30.06.2016 that a request for correction of the decision can be made within 15 days from the date of notification against the decision.
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