The Russian Supreme Court did not rule out the possibility of collecting money from a leisurely developer for renting a temporary property.
The developer has delayed the handover of the apartment to a real estate investor. The latter went to court. Among other things, he asked to reimburse the cost of renting property while waiting for the handover. Two instances did not satisfy these claims: since the apartment was purchased in an unfinished form, the real estate investor would not be able to live in it immediately after receiving it. The view of the Supreme Court of the Russian Federation in this matter was more complex. It sent the case for new review. In particular, the Supreme Court of the Russian Federation indicated: it was necessary to establish when exactly a new apartment could be used for living. Based on this, the courts should have determined whether the developer should reimburse the shareholder for renting a property. It is likely that the developer will have to reimburse, - the Supreme Court had covered this matter previously a few times.
Document: Resolution of the Supreme Court of the Russian Federation of 09/04/2018 N 46-KG18-38
The Supreme Court of the Russian Federation did not reduce the developer a penalty for the future.
The developer did not hand over the apartment to the real estate investors in time. For this, they decided to charge him a penalty. The first instance reduced its size for certain periods - from the day after the decision was made and up to the date of transfer of the apartment (for the future). The court of appeal decided that the penalty in itself for the future, i.e. until the fulfillment of the obligation is illegal. The shareholders are not forbidden to go to court with a claim for a penalty for the period after the decision was made. The Supreme Court of the Russian Federation did not agree with the conclusions of the lower courts. In particular, it noted that the penalty can be recovered by the date of actual fulfillment of obligation. But reducing it according to the rules of art. 333 of the Civil Code of the Russian Federation is impossible for the future. In addition, the Supreme Court of the Russian Federation indicated: the appeal should not have repeatedly "sent" the co-investors to the court for a penalty for future periods.
Document: Resolution of the Supreme Court of the Russian Federation of 11.09.2018 N 11-KG18-21
A cassation reminder: if a customer accepted the acts, but did not sign - the services must be paid for.
The customer received acts of services completed, but did not sign them. The contractor appealed to the court in order to collect payment for the services of these unilateral acts. The first instance granted the claim. Appeal against the decision failed in the appeal and cassation courts. The courts took into account the following circumstances: - the customer did not declare a reasoned refusal to sign the act; - it is not proven that during the disputed period, someone else provided similar services to the customer; - no proof of payment. The courts have repeatedly recognized: a unilateral act proves that the services were rendered if the customer refused to sign it without legal motivation.
Document: Resolution of the CA of the North-West District of 09/10/2018 in case No. A56-111072 / 2017
The Supreme Court of the Russian Federation: an interest-free loan from a member of the company in debt may not be included in the register of claims.
The company appealed to the court to include in the register of claims a claim for the issued interest-free loan. The first instance, the appeal and the district court considered this possible: money was transferred to the debtor, which he did not return. However, according to the Supreme Court of the Russian Federation, the issue is not so simple. The court should have had doubts about the advisability of an interest-free loan, since the lender had not been in a hurry to demand a return of money for a long period of time. It was necessary to check whether there is a possibility that the parties are affiliated, and find out the real motives for the transaction. The bankruptcy trustee paid attention to the fact that the company was a participant in the debtor. Requirements for the return of such a loan in such a situation could be corporate in nature. The lender did not deny this. The Supreme Court returned the case for a new trial. We believe that if it is determined that the loan was of a corporate nature, the creditor's claims will not be included in the register. The current court precedent confirms this opinion.
Document: Determination of the Armed Forces of the Russian Federation of 30.08.2018 N 305-ЭС17-18744 (2)
The Supreme Court: how an estoppel can help prevent an opponent from appealing a court decision.
The company appealed to the state court to challenge the decision of the arbitration court. In their opinion, the latter did not have the competence to consider the dispute. The matter came to the Supreme Court, which resolved the situation not in favor of the company. Claiming that the arbitration court is not qualified to consider this dispute, was necessary at the beginning of arbitration proceedings. To make such statements later is to act in bad faith. The company no longer had the right to object to the competence of the arbitration court. Thus, the Supreme Court of the Russian Federation applied the principle of an estoppel. Note, this is not the first case of its use in cases of challenging the competence of arbitral tribunals.
Documents: Definition of the Armed Forces of the Russian Federation of 09/21/2018 N 305-ЭС18-6787
It is not necessary to indicate a specific amount of damages in a pre-trial claim.
The Arbitration Court of the Far Eastern District published a review of its practice for the first quarter of 2018. We shall review the conclusion of this court on one of the most important topics - the pre-trial dispute resolution procedure (paragraph 1 of the review).
In a pre-trial claim to the contractor, the customer requested that the shortcomings of the work performed be remedied. The customer sent the letter, where the specific amount of damages was indicated, to the counterparty along with the claim. The first instance left it without consideration: the pre-trial procedure was not completed. In the claim, the customer did not indicate the cost of the deficiencies and did not demand any compensation for losses incurred. The court of appeal agreed.
According to the cassation, the lower courts approached the issue formally. In the claim, the customer demanded that the shortcomings be rectified and warned of demanding a full refund for work and the costs of the examination. This is quite enough to comply with the pre-trial procedure, besides there were no other claims in the lawsuit. It is not necessary to indicate a specific amount of losses in a claim or additionally send information about it before going to court.
Note that in the latest practice a complete opposite position is present. Therefore, in order to avoid a possible delay in the dispute, we recommend that you still indicate specific damage costs in the claim.
Documents: Review of judicial practice of the AC of the Far Eastern District in the first quarter of 2018 (http://static.consultant.ru/obj/file/doc/sudpr_dvo_260918.rtf)
Approved by decree of the Presidium of the AC of the Far Eastern District of 05.05.2018 N 10