Petition to the Specialized Interdistrict Economic Court for the appointment of a forensic construction expert examination for a construction and economic study

 

Specialized interdistrict

Economic Court of East Kazakhstan Region

to judge Nursapinov N.S.

East Kazakhstan region. Ust-Kamenogorsk, Shakarim St., 60.

+7-705-569-46-83, 8 /7232/ 75-21-71.

160202@sud.kz  

from the Plaintiff: C. kz LLP  

represented by Director D. O.F.

BEAN .  

Almaty, Tole St. ................

8 (727) …………..

Representative by proxy:

Lawyer Sarzhanov Galymzhan Turlybekovich

Law and Law Law Firm

BIN 201240021767  

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz

+7 708 971 78 58; + 7 727 971 78 58.

 

The petition

on the appointment of a forensic construction expertise on construction and economic research

There is a civil case No.6309-24-00-2/3702 under your jurisdiction on the claim of "C" LLP. kz" (Hereinafter referred to as the Plaintiff) to I. P. LLP (Hereinafter referred to as the Defendant) for compensation for material damage.

There are contractual legal relations between the Plaintiff and the Defendant and three contracts have been concluded for the performance of construction and contract work, namely:

1. Contract No. 28/10/23 dated August 28, 2023 at the Multi-storey residential building (position 87) located at the address: city ​ Ust-Kamenogorsk 070016, Yesenberlin Avenue 68 (Appendix No. 2)

 

2. Contract no.P 51 dated September 22, 2023 at the Multi-storey Residential Building (position 51) facility located at: located at Ust-Kamenogorsk Ave., East Kazakhstan region. Kanysha Satpayeva, 55/9. (Appendix No. 3)

 

The work under the above-mentioned contracts was performed improperly. In addition, some types of work were not performed and many types of equipment that were received by the Defendant were not installed on the construction site, for which there is an inspection report. Whereas the AVR was signed by the parties. All the arguments in the framework of the pre-trial settlement of the dispute did not yield results, and subsequently the Plaintiff is forced to file a lawsuit with the court and request the appointment of a forensic construction examination.

 

Regarding the agreement No.DP-28/10/23 dated August 28, 2023.

 

Subcontract No. 28/10/23 was concluded on September 28, 2023 for the performance of electrical installation work at the multi-storey residential building (position 87) located at 68 Iliyas Yesenberlin St. for the amount of 1,464,480. The work has been completed, and certificates of completed work have been signed.

          Due to the fact that the parties had borrowed claims on the specified dispute, accordingly, they could not come to a peaceful settlement of the case.

 

Thus, on November 25, 2024, the Plaintiff conducted an inspection of the facility where an Act of inspection of the facility was drawn up under the specified contract. As a result, a discrepancy in equipment (missing) 87 items in the amount of 1,181,507.68 tenge was established. The amount for work according to the specification of equipment and materials not exhibited was 611,700 tenge. (Appendix No. 9 of the Object Survey Act dated November 25, 2024)

 

In total, the amount of their debt to us for equipment and unfinished work on the 87th position is 1,793,207.68 tenge.

 

In addition, in accordance with clause 8 of the Contract, the Subcontractor guarantees the high quality of the work performed, in accordance with the applicable regulatory and technical documentation, GOST SNiP and TU. According to clause 8.2, the warranty period for the work performed by the Subcontractor is set at 60 months from the date of signing the Act of the Working commission for completed work.

Based on the above, we received an Act of Malfunction dated November 12, 2024 from the end user of the MZHD AXIS located at 68 Iliyas Yesenberlin St., represented by Chairman Kasimov M.B. (Dale AXIS). (Appendix No. 4 Act of malfunction dated November 12, 2024)

The act describes the facility, a nine-storey residential building located at 68 Iliyas Yesenberlin Street, with automatic fire alarm equipment, a central control panel, and Devices located on each floor. The entire APS system and the Video surveillance system have critical problems and the need to detect the causes of the failure and eliminate it.

Upon receipt of the Malfunction Report by the Plaintiff, a Troubleshooting Notice was sent to the Defendant for issue No. 1811/24 dated 11/18/2024, which was duly sent and delivered to the Defendant. (Appendix No. 5 Troubleshooting Notification).

In accordance with clause 8.3 of the Contract, they asked to immediately travel to the address of the facility with a representative of the Contractor and organize work to eliminate the causes of the problems. Clause 8.4 of the Contract stipulates that if the subcontractor refuses to draw up or sign an act of discovered deficiencies, the Contractor appoints a qualification examination to confirm them, which will draw up an appropriate Act to fix the deficiencies and their nature, which is the basis for the Contractor to file claims against the Subcontractor

However, after the Defendant received the notification, the defects in the act were not eliminated.

Subsequently, the Plaintiff repeatedly sent a Pre-trial claim to the Defendant, ext. No. 2811/24 dated 11/28/2024, in case of non-fulfillment of obligations to eliminate defects, the Defendant will be forced to fix the defects on his own and assesses the work for 1,500,000 tenge. (Appendix No. 6 Pre-trial claim ext. No. 2811/24 dated 11/28/2024)

 

A violation of an obligation is understood as its non-fulfillment or improper fulfillment, which contradicts Article 349 of the Civil Code of the Republic of Kazakhstan, which is unacceptable according to Article 272 of the Civil Code of the Republic of Kazakhstan.

In addition, clause 8.3 of the Contract stipulates that if, before the expiration of the warranty period, defects or premature complete or partial destruction of the work performed were detected, which led to the impossibility of normal operation of the work performed by the subcontractor, documented by a bilateral act, the Subcontractor is obliged to perform additional work to eliminate them at its own expense.

Subsequently, the Plaintiff received a response to the Pre-Trial claim. Of the following nature, "during the investigation of the circumstances of the case, we became aware that from the end user, represented by the AXIS of the Moscow Railway named after I. Yesenberlin Street, 68, in particular, the chairman, M.B. Kasymov, did not receive a complaint letter to both I. P. LLP and Certa kz LLP." (Appendix No. 7 response to the Pre-trial claim, ext. No. 2811/24)

At the same time, our specialists conducted an inspection of the APS as part of the warranty service of this facility. During the survey, it was found that equipment replacement and system reconfiguration were required. As a result, we contacted the chairman of the AXIS of the Ministry of Railways, M.B. Kasimov, to whom we explained the situation and agreed on the procedure and mechanism for troubleshooting the identified problems, which will take 10 working days free of charge. In this regard, we found a compromise with the chairman of the MZhD axis. (Appendix No. 8 of the coordination of the procedure and mechanism for troubleshooting the identified problems with the AXIS of the MZhD)

Due to the above-mentioned circumstance, the Defendant has not received a letter or information about the elimination of defects from the Plaintiff to this day, thus, we consider that the Plaintiff has not fulfilled its obligations In accordance with clause 8 of the Contract. The Subcontractor guarantees the high quality of the work performed, in accordance with the current regulatory and technical documentation, GOST SNiP and TU.

According to clause 8.2, the warranty period for the work performed by the Subcontractor is set at 60 months from the date of signing the Act of the Working Commissions for completed work.

In accordance with clause 8.3 of the Contract, no work was organized to eliminate the causes of the problems. Clause 8.4 of the Contract stipulates that if the subcontractor refuses to draw up or sign an act of discovered deficiencies, the Contractor draws up an appropriate Act to confirm the deficiencies and their nature, which is the basis for the Contractor to file claims against the Subcontractor.

In accordance with clause 3.8 of the above-mentioned Agreement, it is provided that "Payment under the Agreement is made by the Customer in the amount determined as the difference between the amount indicated in the Certificates of Work Performed signed by the Customer and the amount of the granite retention, based on invoices provided by the Contractor, taking into account the amount of the guarantee retention.

          Also, clause 3.9 of the above-mentioned Agreement provides that "The Customer has the right to deduct from the amount of the guarantee deduction compensation for all costs and losses (including material overruns and other losses) that have arisen as a result of the Contractor's failure to fulfill or improper fulfillment of its obligations under this Agreement, having previously notified the Contractor in writing."

          Clause 4.2.15 of the Contract stipulates that "The Contractor undertakes to compensate the Customer's losses in the event of improper fulfillment of obligations assumed by the Contractor, resulting in the termination of this Contract.

          Clause 5.12 of the Contract stipulates "If the work is performed by the Contractor with deviations from the Contract, which worsened the work, or with other defects that make it unsuitable for the contract provided for in the contract or, in the absence of a corresponding condition in the contract, for normal use, the Contractor is obliged, at the choice of the Customer:

1) Eliminate the shortcomings of the work free of charge within the time limits set by the Customer;

2)     Proportionately reduce the price set for the work;

3)     Reimburse the Customer's expenses for self-repair of defects.

 

Thus, the Defendant caused real material damage to the Plaintiff under the Contract No. 28/10/23 dated August 28, 2023.

· Discrepancies in equipment and unfinished work in the amount of 1,793,207.68 tenge;

· For non-fulfillment of obligations to eliminate defects according to the Act of malfunction is estimated at 1,500,000 tenge;

The total amount of our claims under contract No. 28/0/23 is 3,293,207 tenge.    

 

 

Regarding the agreement No. P-51 dated September 22, 2023.

Contract No. P-51 was concluded on September 22, 2023 in the amount of KZT 1,089,480 with a work schedule until October 30, 2023 at the Multi-storey Residential Building (position 51) facility located at Ust-Kamenogorsk Ave., East Kazakhstan region. Kanysha Satpayeva, 55/9.

An advance payment in the amount of 115,200 tenge was made under this agreement on September 22, 2023.

The works were completed on time, as evidenced by the signed acts of completed works dated 12.10.2023 in the amount of 1,089,450 tenge.

Thus, in accordance with clause 3.8 of the above-mentioned Agreement, it is provided that "Payment under the Agreement is made by the Customer in the amount determined as the difference between the amount indicated in the Certificates of Work Performed signed by the Customer and the amount of the granite retention, based on invoices provided by the Contractor, taking into account the amount of the guarantee retention.

          Also, clause 3.9 of the above-mentioned Agreement provides that "The Customer has the right to deduct from the amount of the guarantee deduction compensation for all costs and losses (including material overruns and other losses) that have arisen as a result of the Contractor's failure to fulfill or improper fulfillment of its obligations under this Agreement, having previously notified the Contractor in writing."

The amount of payment is 1,089,450 tenge according to the ADR dated 12.10.2023 – 10% = 108,945 tenge guarantee deduction with refund in September 2028 - 115,200 tenge prepayment and payable = 865,332 tenge. (Appendix No. 10 of the ADR dated 12.10.2023)

 

          Clause 4.2.15 of the Contract stipulates that "The Contractor undertakes to compensate the Customer's losses in the event of improper fulfillment of obligations assumed by the Contractor, resulting in the termination of this Contract.

          In addition, clause 5.12 of the Contract stipulates "If the work is performed by the Contractor with deviations from the Contract, which worsened the work, or with other defects that make it unsuitable for the contract provided for in the contract or, in the absence of a corresponding condition in the contract, for normal use, the Contractor is obliged, at the choice of the Customer.:

Eliminate the shortcomings of the work free of charge within the time limits set by the Customer;

Proportionately reduce the price set for the work;

Reimburse the Customer's expenses for self-repair of defects.

Paragraph 7.5 of the Agreement also provides that "For non-fulfillment or improper fulfillment of obligations not provided for in paragraph 7.4., but provided for in the terms of this agreement, including paragraphs 4.2., 5.2., 5.7. of this agreement, a fine in the amount of 1,000 tenge to 10% of the total amount is imposed on the Contractor the relevant annex to this agreement is at the discretion of the Customer, and also fully reimburses all actual possible losses incurred by the customer as a result of the Contractor's failure to comply with its obligations."

          Clause 8.12 of the contract provides for the Warranty period of the work performed by the Contractor to be set at 60 months from the date of signing the Act of the working commission for the completed work.

Thus, on November 24, 2024, the Defendant conducted an inspection of the facility under the specified contract and drew up an Act of inspection of the facility. As a result, a discrepancy in equipment (missing) 51 items was found. Lack of equipment and materials in the amount of 1,353,262 tenge of work in the amount of 600,000 tenge.  (Appendix No. 11 of the Object Survey Act dated November 24, 2024)

The total amount of the Defendant's debt to the Plaintiff for the equipment in two positions amounted to 1,953,262 tenge.

 

392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole.

By his actions, the defendant violates Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts.

Article 6. The Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" stipulates: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.

Thus, Dear Court, the Defendant's arguments that the terms of the Contract are not being fulfilled are not valid and are not justified on the basis of the above arguments.

According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.

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.

In accordance with Articles 68, 72 of the CPC 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 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression.

According to art. 620 of the Civil Code of the Republic of Kazakhstan, the initial and final deadlines for the work are specified in the contract. By agreement between the parties, the contract may also provide for deadlines for completing certain stages of work (interim deadlines). Unless otherwise stipulated in the contract, the contractor is liable for violations of both the initial and final, as well as intermediate deadlines for the performance of work.

152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and preserved.

By virtue of art. 219 part 2 of the CPC, the Court does not have the right to change the subject or the basis of the claim on its own initiative and is obliged to resolve the case within the limits of the claims stated by the plaintiff.

In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.

         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, as well as 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.

     Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.  

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.

 

46 of the Civil Code of the Republic of Kazakhstan, persons participating in the case have the right to file petitions, including for taking measures to secure the claim, to provide evidence, to request additional evidence, to apply conciliation procedures; to give oral and written explanations to the court; to present their arguments on all issues arising during the trial.

          Paragraph 3, Article 82 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) provides that the court appoints a judicial examination at the request of a party or on its own initiative. At the request of the party and other persons involved in the case regarding the falsification of written evidence, the court has the right to appoint an appropriate expert examination.

Paragraph 6, art. 82 of the CPC states that the persons involved in the case may request the court to entrust the conduct of a forensic examination to a specific person with the necessary special scientific knowledge.

According to paragraph 246 of the Order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017 No. 484 on approval of the Rules for the organization and conduct of forensic examinations and studies in forensic examination bodies, the tasks of the forensic expert construction and economic study of buildings and structures are to determine the compliance of the cost of actually performed construction and installation or repair and construction works with acceptance certificates of completed works.

Based on the above, in accordance with art. 82 of the Civil Procedure Code of the Republic of Kazakhstan,

 

I ASK THE COURT:

 

1. To appoint a forensic construction and economic study under the Contract No. 28/10/23 dated August 28, 2023 at the Multi-storey residential building (position 87) located at the address: city ​ Ust-Kamenogorsk 070016, Yesenberlin Avenue 68;

To resolve the study, ask the following questions:

-        Do the construction and installation works according to the acts of completed works No. 3 dated 30.09.2023, performed under the Contract No. 28/10/23 dated August 28, 2023, comply with the requirements of the Specification provided for in Appendix No. 1, Appendix No. 8 of the Contract?

-        Do the construction and installation work on the installation of equipment according to the Invoice for the release of supplies to the party for UKa-001 dated 09/12/2023 correspond?

 

2. To appoint a forensic construction and economic study under: Contract No. 51 dated September 22, 2023 at the Multi-storey residential building (position 51) facility located at: located at East Kazakhstan region, Ust-Kamenogorsk Ave. Kanysha Satpayeva, 55/9.

To resolve the study, ask the following questions:

-        Do the construction and installation works according to the acts of completed works No. 4 dated 30.09.2023, performed under Contract No.51 dated September 22, 2023, comply with the requirements of the Specification provided for in Appendix No. 1, Appendix No. 4 of the Contract?  

 

3. To entrust the research (expertise) to the Branch of the Republican

the state-owned enterprise "Center for Forensic Examinations of the Ministry of Justice of the Republic of Kazakhstan" Institute of Forensic Examinations in the East Kazakhstan region located at: ​391 Vokzalnaya Street, Ust-Kamenogorsk, 070011, +7 (7232) 52-30-94; +7 (7232) 52-29-10.

 

With respect,

Proxy Representative Lawyer:                                   Sarzhanov G.T.

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