Recognition of the transaction as fake, not concluded and invalid due to the nullity and recovery of the amount
On June 2, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the chairman, Judge B., Judges A., M., with the participation of the plaintiff K.S. and his representative J.M., representatives of the defendant P.A., Z.Z., having considered in open court via mobile videoconference, the civil case on the claim of K.S. to a limited liability partnership (hereinafter referred to as an LLP, Partnership) "T" on recognizing the transaction as fake, the contract as not concluded and invalid due to its insignificance and the recovery of the amount,
received at the request of K.S. for a review of the decision of the city court of August 18, 2021, the decision of the judicial board for civil cases of October 26, 2021,
K.S. filed a lawsuit against LLP "T" for recognition of the transaction for the conclusion of a preliminary agreement as fake, recognition of the agreement as not concluded and invalid due to its nullity and for the recovery of KZT 19,454,200, arguing that the defendant proposed to conclude a preliminary agreement for the purchase and sale of real estate instead of an agreement on equity participation in housing construction, in order to avoid the requirements of the Law of the Republic of Kazakhstan "On Equity participation in housing construction".
By the decision of the city court of August 18, 2021, the claim was dismissed.
The court costs of paying for the representative's services in the amount of 400,000 tenge were collected from K.S. in favor of the Partnership.
The decision was left unchanged by the decision of the Judicial Board for Civil Cases dated October 26, 2021.
The costs of paying for the assistance of a representative in the amount of 20,000 tenge were collected from K.S. in favor of the Partnership.
In the petition, K.S., referring to the violation of the norms of substantive and procedural law, asks to cancel the judicial acts and make a new decision on the satisfaction of the claim in full.
In its response to the petition, the Partnership requested that the contested judicial acts be upheld.
Having heard the explanations of the plaintiff K.S. and his representative J.M., who supported the arguments of the petition, the objections of the representatives of the defendant P.A., Z.Z., having examined the case materials, having discussed the arguments of the petition, the judicial board comes to the following.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations of substantive and procedural law were committed in the case by local courts.
The case materials established that on August 24, 2015, a preliminary purchase and sale agreement for apartment No. B-1 (hereinafter referred to as the agreement) was concluded between K.S. and the Partnership.
Under the terms of the agreement, the seller (defendant) intends to sell, and the buyer (plaintiff) to buy three apartments in block 1 on the 3rd floor: one-room apartment No. 58, two-room apartment No. 60, three-room apartment No. 59, with a total area of 211 sq.m. in a 9-storey residential building under construction with integrated social facilities.
According to clause 3.2. of the agreement, the buyer pays the amount of KZT 19,454,200 at the time of conclusion of the agreement.
It follows from the receipts for the receipt of the cash order issued by the Partnership that the plaintiff made the payment in full in the amount of KZT 19,454,200. This fact is not disputed by the parties to the dispute.
By the decision of the city court of May 2, 2019, which entered into force on the claim of K.S. to LLP "T" for invalidation of the preliminary apartment purchase agreement dated August 24, 2015 on the grounds of its imaginary nature, circumstances were established that are not amenable to proof again by virtue of the requirements of part 2 of Article 76 of the CPC when considering this case.
Thus, the local courts found that the Partnership's obligations to provide apartments in an apartment building under construction under the contested contract were not fulfilled, and the construction of the apartment building was not carried out for various reasons.
In the court of cassation, the defendant's representatives confirmed this fact, indicating that the house was built only in 2021.
The courts also found that on December 12, 2016, a portion of the amount in the amount of 5,946,000 tenge was returned to the plaintiff by transfer to a bank card account. At the same time, the courts pointed out that the plaintiff had not provided evidence that A.E., who served as director of the Partnership, had monetary obligations to him. The courts refused to apply the statute of limitations on this claim at the request of the defendant, considering it to be missed. Since the preliminary agreement caused legal consequences for the parties, the satisfaction of the claim of K.S. The courts refused to recognize it as invalid on the basis of paragraph 1 of Article 160 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code).
In the case under consideration, the claim was filed on other grounds, and therefore, there were no grounds for termination of the proceedings.
At the time of the conclusion of the contested transaction in 2015, public relations related to the organization of the construction of residential buildings by attracting money from individuals and legal entities for equity participation in their construction, as well as the establishment of guarantees for the protection of the rights and legitimate interests of the parties to the agreement on equity participation in housing construction, were regulated by the Law of the Republic of Kazakhstan "On Equity participation in housing construction" dated July 7, 2006 No. 180 (hereinafter referred to as the Law).
By virtue of the requirements of paragraph 1 of Article 9 of the Law, an equity participation agreement in housing construction is concluded in writing on the basis of a model agreement approved by the authorized body, is subject to accounting and is considered concluded from the moment of such accounting.
These requirements of the law were not fulfilled by the developer, represented by a partnership engaged in the organization of shared-equity construction of residential buildings, and instead of a shared-equity agreement in housing construction based on a model agreement approved by the authorized body, the K.S. equity holder was asked to conclude a preliminary apartment purchase and sale agreement.
According to paragraph 21 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of invalidity of transactions and the application by courts of the consequences of their invalidity" No. 6 dated July 7, 2016, when considering cases of fraudulent transactions, courts must proceed from the meaning of paragraph 2 of Article 160 of the Civil Code. According to the rules of the aforementioned rule of law, the category of transactions in question consists of two types: covering (pretended) and covered (for example, a purchase agreement is covered by the issuance of a power of attorney, a loan agreement and a subsequent pledge agreement by the registration of gift agreements, purchase and sale, a will - a gift agreement, and the like).
A fake transaction made to cover up another transaction is invalid (void). Therefore, the courts need to apply the rules related to the transaction that the parties really had in mind, taking into account the nature of the transaction.
In relation to the circumstances of the dispute, the preliminary agreement for the purchase and sale of an apartment is a fake (insignificant) transaction that does not comply with the requirements of the Law (paragraph 1 of Article 158 of the Civil Code), which actually covers up an equity participation agreement in the construction of an apartment building.
In such circumstances, the claims of the claim and the arguments of the petition for invalidation of the transaction are justified, judicial acts in this part are subject to cancellation with a new decision on partial satisfaction of the claim, since the courts have not applied the law to be applied, the conclusions of the courts do not correspond to the circumstances established in the case.
Taking into account the portion of 5,946,000 tenge returned to the plaintiff, the judicial board considers it necessary to apply partial restitution in the case, obliging the defendant to return 13,508,200 tenge to the plaintiff, based on the following calculation: 19,454,200 tenge - 5,946,000 tenge = 13,508,200 tenge.
The conclusions of the courts on the refusal to satisfy the claim regarding the recognition of the contract as not concluded and the recovery of the entire amount paid under the contract, including 5,946,000 tenge, are legitimate and justified.
According to the rules of Parts 1 and 3 of Article 109 of the CPC, court costs are subject to recovery in favor of the plaintiff in proportion to the amount of the claims satisfied by the court in the amount of 377,200 tenge (expenses for the payment of state duty and payment for the assistance of a representative). Accordingly, the court costs from the plaintiff in favor of the defendant, awarded by the court of first instance, are not recoverable.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED:
The decision of the city Court of August 18, 2021, and the decision of the judicial board for Civil cases of October 26, 2021 on this case should be amended.
To cancel judicial acts regarding the refusal to satisfy K.S.'s claim for invalidation of the preliminary purchase and sale agreement for apartment No. B-1 dated August 24, 2015 and recovery of the amount. In this part, make a new decision on partial satisfaction of the claim.
To invalidate the preliminary purchase and sale agreement of apartment No. B-1 dated August 24, 2015 between LLP "T" and K.S.
Collect from LLP "T" in favor of K.S. 13 508 200 (thirteen million five hundred eight thousand two hundred) tenge.
To collect from LLP "T" in favor of K.S. court costs in the amount of 377,200 (three hundred seventy-seven thousand two hundred) tenge.
To cancel judicial acts regarding the recovery of court costs from K.S. in favor of LLP "T" in the amount of 420 000 (four hundred and twenty thousand) tenge.
The rest of the judicial acts should remain in force. K.S.'s petition should be partially satisfied.
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