Clarification to the application for revocation of the court decision adopted in a simplified manner
Medeu District Court of Almaty
To Judge Akbaev E. B.
Almaty, 050000, Nusupbekov str. 26/1.
8 727 333 13 02.
from the Defendant: And
IIN:
city of Almaty,
+ 7
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Plaintiff: Association of property Owners "Europolis 31/1",
BIN 210140010935
Republic of Kazakhstan, Almaty,
Medeu district, Zh. street.Omarova, dom31/1, sq.11
IBAN KZ31998CTB0001442544 in AO "FirstHeartland Jusan Bank",
BIC Tseskzka, Chairman Nusipzhanov M.T.
Clarification of the application
on the cancellation of a simplified court decision
On August 21, 2023, the judge of the Medeu District Court of Almaty, Akbaev E.B., having considered in a simplified (written) procedure the civil case No. 7517-23-00-2/16261 on the claim of the Association of Property Owners "Europolis 31/1" against the Defendant And on the recovery of the amount of debt, penalties and additional expenses for utility bills, expenses for the maintenance of a residential building, mandatory savings for the overhaul of an apartment building.
Guided by Articles 223-226, 267-4 of the CPC, the court decided: To satisfy the claim of the Association of Property Owners "Europolis 31/1". To collect from the Defendant in favor of the Plaintiff the amount of debt in the amount of 609,272 tenge 93 tiyn, the cost of paying the state duty in the amount of 3% of the amount owed by the Defendant in the amount of 18,278 tenge 19 tiyn.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
Dear Court, we do not agree with the above-mentioned court decision of August 21, 2023, as the court did not fully take into account our arguments. According to the court's Ruling on the acceptance of the application and the initiation of a civil case in a simplified procedure dated July 26, 2023, the defendant was given a deadline for submitting a review, accompanied by documents and evidence that substantiate it, with a document confirming the sending of a copy to the plaintiff, by August 16, 2023.
In accordance with Part 3 of Article 267-3 of the Civil Procedure Code of the Republic of Kazakhstan, the Court notifies the parties, sets a deadline within fifteen working days for the defendant to submit a response (objection) to the statement of claim, accompanied by documents and evidence that substantiate it.
Thus, in accordance with art. 166 of the Civil Procedure Code of the Republic of Kazakhstan, we provided a response to the claim for recovery of the amount of debt, penalties and additional costs in a simplified procedure", through the court's concession on August 14, 2023, with refuting arguments on the Plaintiff's claims. However, the court's decision does not provide our arguments and evidence. We believe that the court did not receive our Feedback and did not study our arguments properly and did not give the court a legal assessment in accordance with art. 68. The CPC of the Republic of Kazakhstan, where it is established that each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
In accordance with Article 16 of the Civil Procedure Code of the Republic of Kazakhstan, a judge evaluates evidence according to his inner conviction.
Since the decision of the Medeu District Court of Almaty affects the interests of the defendant, we believe that it is necessary for a comprehensive, complete and objective consideration of the civil case in accordance with the rules of claim proceedings in a generally established manner in an offline format in accordance with Articles 183, 184 of the CPC RK.
Thus, we disagree with the plaintiff's claims based on the following arguments:
The dispute between the parties resulted in the non-fulfillment of obligations in the Standard Charter of the Association of Property Owners "Europolis 31/1" of an apartment building approved by Protocol No. 2 dated December 28, 2020. 10 it is stipulated that the Association is obliged to: inform its members about the receipt and expenditure of funds, in accordance with the form of monthly and annual reports on the management of the condominium facility and the maintenance of the common property of the condominium facility, approved by the authorized body and be responsible in accordance with the legislative acts of the Republic of Kazakhstan.
272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law by all obligated persons specified in the article, however, this is not observed in the actions of the Plaintiff.
In addition, as part of the minutes of the general meeting, the company was required to send and/or hand over and conclude with the apartment owner a Standard agreement approved by the Government of the Republic of Kazakhstan on the provision of services for the management of the condominium facility and the maintenance of the common property of the condominium facility. However, this was not done either.
According to Article 147 of the Civil Code of the Republic of Kazakhstan, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
According to paragraph 1, Article 393 of the Civil Code of the Republic of Kazakhstan, it is stipulated that a contract is considered concluded when an agreement has been reached between the parties in the required form on all essential terms. Essential are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.
In accordance with clause 1, Article 397 of the Civil Code of the Republic of Kazakhstan, it is stipulated that when an offer contains a deadline for acceptance, the contract is considered concluded if the acceptance is received by the person who sent the offer within the time period specified in it. Thus, the contract was not sent to the defendant or put on public display to the tenants.
Also in Chapter 2, paragraph 7, paragraph 6 of the Charter, it is stipulated the definition of the terms of planned (current) and major repairs in an apartment building and the organization of control over the repair work – However, plans for non-current and capital repairs have not been approved from the AXIS, whereas major repairs are regulated by the building regulations CH RK 1.04-26-2011 "Reconstruction, capital and current repairs of residential and public buildings" and in p. 8.4 Annex 1 provides for According to the provisions of this norm, it is necessary to determine the repair object, conduct an inspection, draw up a defective act and develop design estimates with expertise, determine the cost. Then, according to the decision of the general meeting, collect money. This was not done.
In addition, according to the same rule, the terms of major repairs are set at 20 (twenty) years. In our case, the house is new, commissioned in 2016. If there is nothing to repair, why raise money, especially according to the law "On Housing Relations" they must be returned to apartment owners at the end of the year if unused. The date of major repairs is 2036. By this time, inflation will eat up all the savings, for reference: according to the National Bank, in 2023, inflation is approximately 20.1%.
Article 68 of the CPC RK. The "Evaluation of Evidence" reads Each piece of evidence
It is subject to assessment taking into account the relevance, admissibility, reliability, and all the evidence collected together - sufficiency to resolve a civil case – in this civil case, we observe the unreasonableness of the evidence provided and the calculations carried out.
The plaintiff in his claim indicates that "According to the Act of reconciliation of utility bills of IVTS LLP (an automated electronic accounting system for utility bills and payments for housing maintenance and accumulation for major repairs of the house), there is an obligation on the personal account in IVTS LLP, issued to the Defendant in front of the Plaintiff.
However, the Plaintiff did not attach to the materials of the Claim the Act of reconciliation of utility bills of IVC LLP, which makes it difficult to objectively calculate the amount owed on obligations, since the Defendant did not make payments on AXIS expenses for only 18 months from April 2021 to September 2022 for sq. no. and sq. no...., and accordingly it becomes necessary to request the specified document from the Plaintiff. Whereas the Plaintiff accrues arrears from April 2021 to July 2023.
However, according to our calculations, the amount owed is much lower, for which we carried out an independent calculation of the cost of maintaining the house.:
Sq. … :
The tariff is 135 tenge x 76.9 sq. m. m = 10381.5 tenge
From April 01 to December 31, 2021. (9 months)
10381.5 tenge x 9 months = 93433.5 tenge
From January 01 to September 30, 2022. (9 months)
10381.5 tenge x 9 months = 93433.5 tenge
Total: 186,867 tenge
Kv..... :
The tariff is 135 tenge x 79 sq. m. m = 10665 tenge
From April 01 to December 31, 2021. (9 months)
10665 tenge x 9 months = 95985 tenge
From January 01 to September 30, 2022. (9 months)
10665 tenge x 9 months = 95985 tenge
Total: 191,970 tenge
TOTAL: 378,837 tenge
In addition, according to the calculations of the Plaintiff, the amount of the Defendant's debt at the time of filing the claim is 609,272 tenge 93 tiyn. The debt was formed as of 07/13/2023 for previous periods, taking into account a penalty in the amount of 0.1% of the amount owed in case of non-payment within the time limit established by law, performed automatically in the accounting system for charges, settlements and payments of IVC LLP, excluding charges for the current month.
The debt has been formed and is being accumulated for the following types of services:
a) for apartment No. 5, personal account in IVC LLP No. 4999976
Name of the service
Debt
Penalty fee
Refund of postal expenses.
1160,00
0,00
Elevator according to the statement of IVC LLP
16539,69
3408,92
Accumulation for capital repairs
33843,67
5852,92
Expenses for the maintenance of the house
197248,50
40653,97
Elevator power supply
4091,08
843,23
Total:
252882,94
50759,04
b) for apartment No. 131, personal account in IVC LLP No. 5005516
Name of the service
Debt
Penalty fee
Refund of postal expenses.
1160,00
0,00
Elevator according to the statement of IVC LLP
16991,32
3408,99
Accumulation for capital repairs
34767,90
6012,75
Expenses for the maintenance of the house
202635,00
40654,99
Total:
255554,22
50076,73
In the above table, in the Penalty column for each item, the amounts of arrears on penalties were accrued for which the amount of penalties is considered excessively large and unjustified, whereas by virtue of art. 5 of the Civil Code of the Republic of Kazakhstan in cases where the relations provided for in paragraphs 1 and 2 of Article 1 of the Code are not directly regulated by legislation or agreement of the parties and there are no applicable to them customs, to such relations, since this does not contradict their essence, the norms of civil legislation governing similar relations (analogy of the law) are applied.
Regarding the accrued penalties, we disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks and Banking Activity states "The amount of the penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement."
According to Article 297 of the Civil Code of the Republic of Kazakhstan, if the penalty payable is excessively high compared to the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.
The plaintiff in his claim in clause 5. Stipulates that Protocol No. 2 of the meeting of owners of apartments, non-residential premises of an apartment building (conducted by written survey) dated June 23, 2023: 5.1. Approved the rate of remuneration of the legal adviser, in addition to the work reflected in the GPH contract, for: - pre-trial (out–of-court) collection of utility debts - 5% of the amount owed; - judicial collection of utility debts – 10% of the amount owed; - postage, as well as expenses related to the delivery of a pre–trial claim (notification) - at the rates of Kazpost JSC. The indicated rates should be indicated in the consumer's receipt for pre-trial (out-of-court) collection, as well as for postage, as reimbursable.
In accordance with subparagraph 9) of Article 108 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK), court costs include the costs of paying for the assistance of a representative. In accordance with the first part of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards the costs incurred by the other party to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim.
The plaintiff, in order to protect his interests and represent him in court, concluded a Contract for the provision of paid services No. 1510-1/22 dated 10/15/2022 with Klimenko's legal adviser Mikhail Viktorovich.
In addition to the actual expenses incurred, the amount actually paid for the representative's assistance is 60,927 tenge 29 tiyn, which is confirmed by payment order No. 128 dated 07/19/2023.
In refutation of these arguments of the Plaintiff's representative, I would like to note that the Contract for the provision of paid services (concluded under the GPH) No. 1510-1/22 dated 10/15/2022 with Klimenko's legal adviser Mikhail Viktorovich as an individual without forming a legal entity, with monthly payments in the amount of 200,000 tenge according to Appendix No. 1 to the contract.
The Law "On Advocacy and Legal Assistance" No. 176-VI dated 05.07.2018. Section 4 of this law is devoted to legal consultants, who were identified as a separate entity in the legal services market.
According to Article 75 of Law No. 176-VI of 05.07.2018, a legal consultant is an individual who has (at the same time):
higher legal education;
work experience in the legal profession is at least 2 years;
passed the certification;
who is a member of the Chamber of Legal Advisers and provides legal assistance.
According to paragraph 2 of Article 75 of the Law No. 176-VI dated 05.07.2018, a legal consultant can provide legal assistance independently.:
work within the framework of an employment contract;
work within the framework of the GPH agreement.
registration of an individual entrepreneur;
Work under the GPH contract refers to the option "without state registration as an individual entrepreneur."
According to Article 19 of the Civil Code of the Republic of Kazakhstan, if an individual performs some work, provides services, or engages in other activities without employing employees, he may not register as an individual entrepreneur. Works (services) can be performed:
under a contract (art.616 of the Civil Code of the Republic of Kazakhstan);
under a contract for the provision of paid services (art.683 of the Civil Code of the Republic of Kazakhstan) (GPH Agreement).
A paid service agreement is applicable for a legal consultant.
If this option is chosen, the consultant is legally obliged to issue certificates of completed works (services rendered). The customer – the tax agent pays for the contractor, deducting from the amount of the contract:
IPN 10%;
OPV 10%;
VOSMS 2%.
According to paragraph 2 of Article 35 of the Business Code, individuals who meet one of the conditions are subject to mandatory registration with the tax service as sole proprietors.:
employing employees on a permanent basis;
those who receive an annual income from entrepreneurial activity in excess of 12 minimum wage.
As you can see, under the Contract for the provision of paid services No. 1510-1/22 dated 10/15/2022 with legal consultant K., receiving 200,000 tenge each month from 10/15/2022 to the present day, that is, for 10 months Klimenko M.V. earned at least 2,000,000 tenge, thus the activity of a legal consultant may fall under at least the condition regarding annual income, which means it requires registration as an individual entrepreneur.
At the same time, according to subclause 3, clause 2, Article 683 of the Tax Code of the Republic of Kazakhstan, a legal consultant does not have the right to apply special conditions (patent, simplified procedure, fixed deduction), since the provision of consulting services, activities in the field of law, justice and justice does not allow the use of the Tax Code for small businesses. Therefore, a legal consultant can register his business activity as a sole proprietor on ESD.
According to paragraph 1 of Article 166 of the Tax Code of the Republic of Kazakhstan, monetary settlements require the use of KKM (online cash registers). An exception is made only for persons listed in paragraph 2 of Article 166 of the Tax Code of the Republic of Kazakhstan (including individuals, private bailiffs, notaries, lawyers and mediators).
There are no exceptions for legal consultants.
Therefore, a legal consultant to M.V. must be registered as an individual entrepreneur on ESD and must make payments using cash or payment cards, then he will need to use an online sales register and issue checks. However, there is no KKM check in the materials of the civil case.
In accordance with Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Thus, we consider it unacceptable to collect representative expenses based on the above arguments. In addition, we are requesting a Private ruling on the concealment of income from taxation by a legal consultant and to send it to the authorized bodies for further investigation.
In accordance with Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
We also believe that the Plaintiff and his representative violate the requirements of good faith, reasonableness and fairness provided for in Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan.
In accordance with Articles 68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
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.
According to Part 1 of art. 267-4 of the Civil Procedure Code of the Republic of Kazakhstan, copies of the court decision are sent to the parties using means of communication that ensure recording of its receipt, or are issued no later than five working days from the date of the final decision.
Article 72 of the CPC RK. The "Duty of Proof" provides for Each
the party must prove the circumstances to which it refers as the basis of its claims, which is not observed in the statement of claim.
Article 73 of the CPC RK. "Presentation of evidence", evidence
They are submitted by the parties and other persons participating in the case to the court of first instance at the stage of preparing the case for trial.
According to Article 267-4 of the Civil Procedure Code of the Republic of Kazakhstan, the defendant has the right to file with the court that issued the decision in a simplified (written) procedure an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision. The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision. An application for revocation of a decision is considered in accordance with the rules established by Chapter 21-1 of this Code, taking into account the requirements provided for in part two of this Article. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the deadline for filing an application for revocation of this decision has expired, and if the application has been filed, within one month after the court's ruling on the refusal to satisfy this application.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
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.
For the purpose of a comprehensive, complete and objective consideration of the said civil case, the court will be provided with evidence that may affect the content of the decision.
On the basis of the above and in accordance with art. 267-4 of the CPC RK,
I ask the Court:
To cancel the decision of the Medeu District Court of Almaty adopted in a simplified manner on August 21, 2023 on the claim of the Association of Property Owners "Europolis 31/1" against the Defendant And to recover the amount of debt, penalties and additional expenses for utility bills, expenses for the maintenance of an apartment building, mandatory savings for the overhaul of an apartment building;
To consider civil case No. 7517-23-00-2/16261 on the claim of the Association of Property Owners "Europolis 31/1" against the Defendant And on the recovery of arrears, penalties and additional expenses for utility bills, expenses for the maintenance of an apartment building, mandatory savings for major repairs of an apartment building - essentially in accordance with the generally established procedure.
Yours sincerely, Representative
by proxy, a lawyer __________/ Sarzhanov G.T.
"___"__________20... the year
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