October 20 Main results of the day

In 2018, a contract for the construction of a garage complex worth 166 million rubles was concluded between the Principal (a garage construction cooperative) and the counterparty.

In the process of fulfilling obligations by the Contractor, significant violations of the deadlines for the completion of work were committed, as well as numerous deficiencies were identified that prevent the safe delivery of the facility. The Principal was forced to unilaterally refuse to perform the contract and incur significant costs aimed at eliminating defects and completing the construction.

In response to these actions, the Counterparty initiated a legal dispute, claiming 65 million rubles from the cooperative as payment for the work performed and the accrued penalty. The conducted forensic examination supported the Plaintiff’s position.

Our specialists have developed a comprehensive strategy to protect the Client’s interests. As a result of a professional analysis of the submitted materials, it was possible to achieve recognition of the inconsistency of the conclusions of the initial forensic examination, since significant procedural violations were committed during its conduct, and the conclusion was approved by an organization that the court had not assign to conduct the study at all. Taking into account the violations identified, the court granted our motion to appoint a repeat forensic examination. The second study, conducted with our methodological support, was systemic in nature: multiple on-site inspections of the site were carried out, as well as instrumental ground-penetrating radar surveys, which objectively confirmed the presence of critical violations in the construction work.

We also filed a counterclaim, which stated demands for recovery from the counterparty of the losses incurred by the cooperative, as well as the application of liability measures for the violations committed.

As a result, the court sided with the Client: instead of 65 million rubles, the contractor will receive only 2.5 million rubles for the small part of the work that was performed normally. According to our counterclaim, money was also recovered from the contractor in favor of the Client. After offsetting of the claims, our Client not only owes nothing, but also received net payments from the counterparty for all expenses.

The Principal’s interests were represented by Konstantin Tkachenko, lawyer and Head of the Legal Support Practice for Entrepreneurship, and Grigory Mirovsky, Senior Associate.

The abuse of the statute of limitations for concluding loan agreements has been stopped.

How long should loan agreements be kept? 3 years? 5 years? 10?

The financial manager in the bankruptcy case of our client’s former business partner probably expected that perhaps someone might keep contracts for 5-10 years, but certainly not more than 20.

The financial manager filed a lawsuit to recover from our Principal the amounts of loans and interest on loans based on bank statements that contained information about money transfers from our Principal to the bankrupt counterparty with the purpose of payment “transfer of funds under the loan agreement.”

All transfers were made between 2002 and 2016!

“No contracts – no deadlines, no deadlines – loans are indefinite,” the financial manager decided and calculated that he would be able to replenish the bankruptcy estate by 90 million rubles with increasing interest until the date of the actual execution of the court decision.

However, the financial manager did not think that we would be able to interpret his evidence in favor of the Principal.

The financial manager submitted later agreements between the principal and the former business partner to the case file in order to prove the existence of a loan relationship. We, however, proved the urgency of such loan relationship.

We were also able to prove to the court that invalidating a transaction does not mean that the information contained in its written form is unreliable. Thus, another piece of evidence was the previously invalidated assignment agreement for the transfer of debt under a number of disputed loan agreements to another person.

As a result, the courts of first and appellate instances sided with us, recognizing that the contracts actually existed, but had not been preserved due to the passage of time; the loans were fixed-term, not “on demand.” In this regard, according to our application, the statute of limitations was applied to all loans, since it had expired even under the “newest” of the agreements, and the claims against our Principal were denied in full.