T.R. SUPREME COURT
- Law Office
Basis: 2016/891
Decision: 2016/3775
Decision Date: 30.06.2016
CASE RESULTING FROM THE AGREEMENT OF WORKS – MAKING A DECISION IN ACCORDANCE WITH THE RESULT BY TAKING ADDITIONAL REPORTS SUITABLE FOR DEFINITION AND SUPERVISION OF THE Supreme Court – RESULT OF DECISION BY ACKNOWLEDGMENT
SUMMARY: The final progress payment and final account report issued by the defendant from the panel of experts by the court, and the objections of the contractor to these reports, and the content of the petition of the defendant municipality’s attorney dated 05.05.2014, the contract and its annexes, and all the evidence, are suitable for making a judgment and for the Supreme Court inspection. While an additional report should be obtained and a decision should be made in accordance with the result, it was not correct to reach a decision with an incomplete examination.
(818 S. K. Art. 355) (6098 S. K. Art. 470)
Lawsuit: Although the defendant’s attorney was requested to examine the above-mentioned provision with a hearing, on appeal, on the day designated for the hearing, the plaintiff’s attorney, Attorney … and the defendant’s attorney, Attorney .. came. After it was understood that the appeal petition was submitted in due time and the lawyers of the parties present were heard, the file returned to the place due to the deficiency was completed, and the papers in the file were read and discussed and considered:
Decision: The lawsuit has arisen from the contract of work, the determination of the completion of the temporary acceptance deficiencies, the collection of the receivable made under the contract and not subject to progress, the cost of the additional works done with the approval of the defendant administration, and the cost of the additional works that are within and/or outside the contractual project and which are not included in the contract price but have to be made. It is related to the collection of the cost of the works, payments made on behalf and account of the defendant, the collection of the cash guarantee receivables, the return of the letters of guarantee and the collection of the expenses and commissions of the letters of guarantee until the date of the lawsuit. The decision of the court regarding the partial acceptance of the case was appealed by the defendant municipality’s attorney.
1-According to the articles in the file, the evidence on which the decision is based and the legally compelling reasons, and especially the lack of inaccuracy in the evaluation of the evidence, the other appeal objections of the defendant, which are outside the scope of the paragraph below, were not found appropriate and had to be rejected.
2-The dispute between the parties is due to the 1st Phase of the Light Rail System construction work. The contract between the parties dated 06.06.2007 and its annexes are not subject to dispute. The plaintiffs are the contractor, the defendant municipality is the business owner. In Article 6 of the contract, it is stipulated that the contract is a turnkey lump-sum contract and it is concluded over a total price of 109,257,601.09 euros.
The original expert report dated 06.03.2012 and the additional expert report dated 28.11.2012 was obtained from the expert committee by making an on-site discovery by the court. It was stated that the final account should be issued by the court due to the fact that it was submitted to the judiciary”, and it was decided to obtain additional reports from the experts in order to determine the receivable-debt status by issuing the final account and evaluating the claims of the plaintiff. Upon this interim decision of the court, additional expert committee reports dated 08.10.2013 and dated 03.04.2014 were obtained from the expert committee, the final account was drawn up by the experts and the final account file was added to the expert report. The attorney of the defendant objected to the additional expert report dated 03.04.2014 with his petition dated 05.05.2014. In the petition of the defendant’s attorney; The calculations regarding the final progress payment summary made by the experts are incorrect and incomplete, the amount to be paid to the contractor within the scope of the contract is overestimated, 3.252.933.28 Euro additional work was not performed by the contractor as claimed by the experts, the advance deduction of 368.346.40 Euros should be included in the account as a deduction. that they had to pay an extra 3,212,315.53 euros to the contractor for the works that the municipality gave up on doing as a result of the under-calculation they made, that there was a big mistake in the calculation of the additional works done with the approval of the experts, that the screen of the trains was frozen as a very simple deficiency, and that a value of 56,000 euros was added and argued that it was not possible to make a final calculation in this way, and the court made a judgment in terms of the objections of the defendant’s attorney, which are of technical nature, listed as an example above, without obtaining a report from the experts in a way that answers the objections. . However, due to the fact that there were issues that require technical knowledge to be resolved by the court, a report was obtained from the expert panel. As such, it is obvious that the court ruled without clarification of technical issues and without meeting the objections of the defendant. Again, within the scope of the file and the content of the petition of the defendant’s attorney, the defendant business owner municipality
It is understood that the final account of the work has been prepared by the company, and this final account should be examined and evaluated by experts.
In that case, the final progress payment and final account report issued by the defendant from the panel of experts by the court, and the objections of the contractor against these reports, and the content of the defendant’s petition dated 05.05.2014, the contract and its annexes, and all the evidence, are suitable for making a judgment and for the supervision of the Supreme Court. While an additional report should be obtained and a decision should be made in accordance with the result, it was not correct to reach a decision with an incomplete examination.
On the other hand, among the receivables included in the petition, “The amount of 2,473,850,09 euros made within the scope of the contract and which has not been paid as of the date of provisional acceptance, but not yet paid”, “The cost and commissions of the letters of guarantee held by the defendant until the date of the lawsuit amounted to 64,523,09 euros. ”, “1.372,314,14 euros for additional works carried out with the approval of the defendant administration” and “The cost of works that are not included in the contract price but have to be done, as well as payments and services made on behalf of the defendant, within and/or outside the project that is the basis of the contract”. 4,437,963,89 euros” were requested to be collected 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, based on the provision, the 18% VAT amount to be paid to the contractor was calculated as 1,279,855.75 euros, and the contractor’s receivable of 8,911,530,02 euros included in the provision also includes 1,279,855.75 euros of VAT. . Although there is no lawsuit filed duly by paying the fee in terms of VAT receivables, it is not correct to establish a provision that includes the VAT amount.
Again, in the reasoning part of the court decision, it was stated that “The claim for expenses related to the letters of guarantee was rejected”. Whereas, “Expenses and commissions of letters of guarantee between 24.12.2009 and 21.12.2010” in the 3rd row of the “Evaluation of additional requests – final progress payment summary” table on page 51 of the additional expert committee report dated 03.04.2014, which was taken as the basis for the decision, 18.418.412, It has been shown as 24 euro and it is understood that this amount is included in the amount of 8,911,530,02 euros taken under provision. For this reason, it was also not correct to state that the expense claim regarding the letters of guarantee was rejected in the reasoning part of the court decision, although it was ruled.
It was found appropriate to reverse the decision for the reasons explained above.
Conclusion: The defendant’s other appeal objections were rejected for the reasons explained in the first paragraph above, the decision was overturned for the benefit of the defendant business owner municipality, for the reasons explained in the second paragraph, 1.100,00 TL hearing fee was collected from the plaintiff and given to the defendant who was represented by the attorney in the hearing at the Court of Cassation, the appeal paid by him. It was unanimously decided on 30.06.2016 that the advance fee be returned to the appellant upon request, and that a request for correction of the decision can be made within 15 days from the date of notification against the decision.
