Appeal against the court's decision to recover the amount of debt under the construction contract

 

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To the Appeals Board for Civil Cases of the Almaty

City Court of Almaty,

050000, Kazybek Bi Street, 66. 0201@sud.kz  

from: LLP “....” BIN ...... Almaty Medeu district, ul.... 50, office 327. +7 702 ......

Proxy Representative: Law and Law Law Firm

BIN 201240021767 Almaty, 79 Abylai Khan ave., office 304.

info@zakonpravo.kz / www.zakonpravo.kz + 7 727 578 57 58; +7 708 578 57 58.  

THE APPEAL

 on the decision of the Specialized Interdistrict Economic Court of the city

Almaty, September 07, 2022

On September 07, 2022, the Specialized Interdistrict Economic Court of Almaty, chaired by Judge G.A. Rakhimdzhanova, considered civil case No. 7527-22-00-2/605 on the claim of LLP "." to "....." for the recovery of funds, the Judge decided to satisfy the claim of LLP "..." to LLP "...." to refuse to collect funds.

During the trial, the court appointed a forensic construction and economic study of buildings and structures to verify the arguments of the parties.  Thus, the court, having received expert opinion No. 1687 dated July 25, 2022, which stated that the work performed by "...." LLP did not comply with the design and estimate documentation, and the work in the amount of 610,343,589 tenge was not completed. From the reasoning part of the expert opinion, it can be seen that the expert concluded that the work was carried out only in the amount of 496,656,411 tenge. From the reasoning part of the expert opinion, it can be seen that the expert concluded that the work was carried out only in the amount of 496,656,411 tenge. We disagree with the arguments indicated in the court's decision in this civil case due to the following circumstances: Between the State Institution “City Construction Department” of Atyrau (hereinafter referred to as the Customer) and LLP “....” (Hereinafter referred to as the Defendant), a construction contract was concluded for the construction of sports grounds for 27 schools in Atyrau. Subsequently, a Subcontracting Agreement No.30-01/LAN dated July 13, 2019 (hereinafter referred to as the Agreement) was concluded between the Defendant and LLP “...” (hereinafter referred to as the Plaintiff). It follows from paragraphs 3 and 4 of the contract that the contract price is 1,107,000,000 tenge, including VAT.

Appeal against the court's decision to recover the amount of debt under the construction contract

The plaintiff for the work done, according to the acts of completed works and the Form-2 signed by the parties, did the work for a total amount of 727,947,629 tenge, of which the Plaintiff received 508,770,000 tenge. The total balance of the Defendant's debt to the Plaintiff is 219,177,629 tenge. Interim payments are made monthly by the general contractor for the actual amount of work performed within ten banking days after the parties sign the "Act of Completed Work" according to forms No. 2.  No. 3, providing invoices issued in accordance with the current legislation of the Republic of Kazakhstan and payment for work performed by the Customer. On November 25, 2020, the parties signed the act of completed works No. 40 in the amount of 149,244,929 tenge. The court found that the expert should determine whether the work was completed in accordance with the acts of completed works No. 1 dated August 26, 2019, No. 38 dated December 04, 2019, No. 4 dated January 16, 2020, No. 5 dated January 20, 2020, No. 39 dated January 26, 2020, No. 6 dated February 10, 2020, No. 8 dated February 17, 2020, No. 40 dated November 25, 2020 was not possible due to the fact that the types of work performed are not specified in the certificates of completed works. However, Form 2 on the acts of completed works, signed by the parties, clearly outlines all the work done by the Plaintiff. The court mistakenly accepts the expert's opinion as reliable evidence, and the expert's conclusions are based on incomplete studies of the work performed at the facility. However, from the expert's conclusion, we believe that the expert has not studied Forms 2 on the acts of completed work. Moreover, the expert did not even receive a copy of Form 2 on the acts of completed work. On March 11, 2022, the Judge of the specialized interdistrict economic court of Almaty Rakhimdzhanova G.A., during the preparation for the trial of a civil case, Determined to appoint a forensic expert construction and economic examination of buildings and structures in the case of the claim of LLP "..." to LLP "...." for the recovery of a sum of money, where the following questions were put to the experts for the resolution of the examination:

Do the works performed by the limited liability company correspond to "...." the work of the design and estimate documentation?

Does the cost and volume of the work actually performed correspond to the data of the acts of completed works No. 1 dated August 26, 2019, No. 38 dated December 04, 2019, No. 4 dated January 16, 2020, No. 5 dated January 20, 2020, No. 39 dated January 26, 2020, No. 6 dated February 10, 2020 year, No. 8 dated February 17, 2020, No. 40 dated November 25, 2020?

On August 17, 2022, we received an expert opinion dated 07/25/2022. Having studied the expert's opinion, we came to the following conclusion: The expert did not answer the specific questions raised above by the court. That is, the expert indicates the amounts for which the work was not completed. In the questions posed, there was no goal to find out how much work was not completed according to the design estimates, but the question is as follows: - "does the cost and volume of work actually performed correspond to the specified acts of work performed by the court". It is known that the work has not yet been fully completed. The reason for the Plaintiff's stated claims is the fact that the Defendant, as a General Contractor, did not pay for the above acts. Due to non-payment for the work performed, the Subcontractor suspended its work. Dear Court of the Board of Appeal, it is also important to inform that the expert, while carrying out his expert work on the construction of sports grounds in schools, did not take into account the construction materials that were not used, but were located on the territory. These are: soil, shebel, PGS, paving stones. If the expert adds all the building materials, the amount will increase. According to art . 5, the Law of the Republic of Kazakhstan "On Forensic expert activity", an expert performing his expert activity is obliged to adhere to the principles of comprehensiveness, completeness, objectivity and scientific validity of forensic expert research. In his conclusion, the expert concludes that the acts of completed works do not specify the volume of construction work and, therefore, it is not possible to identify the specific work performed. However, on October 22, 2021, we sent a Petition to the judicial office to attach the acts of completed works to the materials of the civil case, where Forms 2 on acts of completed works were attached to the petition, and in addition, the following original acts were deliberately issued to the court secretary:

Certificates of acceptance of completed works No. 1 and Form-2 for the month of July 10, 2019 (consisting of 27 pages);

Certificates of acceptance of completed works No. 2 and Form-2 for November 2019 (consisting of 101 pages);

Certificates of acceptance of completed works No. 3 and Form-2 for the month of December 2019 (consisting of 162 pages);

Certificates of acceptance of completed works No. 4 and Form-2 for the month of January 2020 (consisting of 63 pages);

Certificates of acceptance of completed works No. 5 and Form-2 for the month of November 2020 (consisting of 62 pages).

The acts of completed works sent to the court indicate the entire amount of construction work performed by the subcontractor. Accordingly, we believe that the expert's opinion is biased.

Appeal against the court's decision to recover the amount of debt under the construction contract

 After receiving the expert's opinion, we sent a petition to the court to appoint a re-examination in accordance with Article 90 of the CPC RK, since the expert's conclusion stated that the acts of completed work did not specify the volume of construction work and therefore it was not possible to identify the specific work performed. Naturally, the general name of the completed works is indicated in the acts of completed works. Accordingly, in order to identify more detailed information about the name of the completed works, it was necessary to examine Forms 2 on the acts of completed works. We believe that the court did not send a Form 2 expert certificate on the acts of work performed, which is a gross violation of the norms of procedural and substantive law. During the examination, the expert did not pay attention to the Protocol of the technical council on changing the scope of work performed: "Construction of sports grounds for secondary schools in Almaty" dated April 02, 2019, which states that LLP "...." allegedly no work was done on landscaping. In this case, the landscaping was completely changed to other types of work without changing the final estimate. Also, the expert, coming to the conclusion on the outstanding work, did not take into account the supplementary agreement No. 01 concluded between the plaintiff and the defendant to the Subcontract No.30-01/LAN dated June 13, 2019, where the amount for the provision of services under the Contract has changed, i.e. increased. Accordingly, the expert's examination does not relate to what has been comprehensively investigated and there is a lack of completeness and objectivity of the examination. During the trial, we repeatedly stated about the interrogation of an expert. However, the court did not ensure the appearance of an expert to participate in the trial. We disagree with the court's arguments that these proofs are based on Article 67 of the CPC, where the court considers them to be unreliable, since the audit revealed that the amount indicated in the acts was not true. Since the expert was unable to carry out comprehensive and full-fledged work, due to the fact that the court did not provide Forms 2 on the acts of completed work. In addition, the expert had to examine the objects in the presence of the parties. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision. Based on the above and guided by Articles 401, 402 of the Civil Procedure Code of the Republic of Kazakhstan,

I ask the Court:

To satisfy the Plaintiff's appeal against the Decision of the Specialized Interdistrict Economic Court of Almaty dated September 07, 2022;

The decision of the Specialized interdistrict Economic Court of the city

Almaty from September 07, 2022 – cancel;

The Plaintiff's claims for recovery of funds under the subcontract agreement must be satisfied in full.

Sincerely, AGCA's Lawyer:                                                 ___________/ Sarzhanov G.T. "____"___________2022 the year

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

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