PETITION for cassation review of the decision of the Judicial Board on Civil Cases that has entered into legal force
To the Judicial Board for Civil Cases
The Supreme Court of the Republic of Kazakhstan
Astana, Kunaeva St., 39.
+7 717 271 00 00.
from the Defendant: THE AXES OF "J.A..."
BEAN .
223 N. N. ave., Almaty.
Representative by proxy:
Kenesbek Islam Mukhameduly
IIN 970103300774
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 702 327 69 66; + 7 727 971 78 58.
Plaintiffs: D.G.E.,
IIN .,
residing in Almaty,
223 N. ave., sq. 83,
phone 8 701-.
D.S.S.,
IIN .,
mobile phone number +7 707 ..
B.N.E..
IIN .
residing in Almaty,
223 N. Ave., 44 block.
S.T.8702.
J. T.V.
IIN .
residing in Almaty,
223 N. Ave., 111 sq.
THE PETITION
on the cassation review of the decision of the Judicial Board for Civil Cases of the Almaty City Court dated March 27, 2024, which entered into force.
On December 5, 2023, the Bostandyk District Court of Almaty, consisting of: the presiding judge, A. Utebekov, having considered the civil case No7514-23-00-2/7826 according to the claim of D.G.Egeubekovna, D.S.Sultanovich, B.N.Ersainovna, Zh.T.Vladimirovna, M.A.Altybaevna, S.S.Battalovna, Zh.K.Nuralyuly, A.V.Isaevich (Hereinafter referred to as the Plaintiffs) to the Association of Property Owners "MZHK Prospekt N. 223" (Hereinafter referred to as the Defendant) on recognition of the decision of the minutes of the meeting of owners of apartments and non–residential premises "MZHK N. 223" of May 15, 2023, illegal, the court decided to dismiss the Plaintiffs' claim against the Defendant regarding the recognition of the decision of the minutes of the meeting of owners of apartments and non-residential premises "MZHK N. 223" of May 15, 2023 as illegal.
The court found that when examining the questionnaires (in this part) The court concluded that these formal grounds do not indicate the absence of a quorum, since the plaintiffs, in violation of the requirements of Article 72 of the CPC, did not provide acceptable and reliable evidence that the questionnaires (listed in the claim with these violations) were not signed by the owners, given that there are signatures in the relevant voting columns. As for the voting sheets indicated by the plaintiffs as unsigned by the owners, the court found that the signatures of the owners are indicated in the columns on the issues put to the vote.
Disagreeing with the decision of the court of first instance, the Plaintiffs filed an appeal.
On March 27, 2024, the Judicial Board for Civil Cases of the Almaty City Court overturned the decision of the Bostandyk District Court of Almaty on December 5, 2023, with a new decision on the satisfaction of the claim. They also recognized the decisions of the minutes of the meeting of owners of apartments and non-residential premises "MZhK N. 223" dated May 15, 2023 as illegal and invalid.
We do not agree with the decision of the Judicial Board for Civil Cases of the Almaty City Court dated March 27, 2024, and consider it illegal due to the following circumstances:
The Board found that the basis for filing this lawsuit is a violation of the rights of residents who were not notified of the meeting, further on voting by poll, and the absence of a quorum during voting. The Board found that there was no evidence that the date of the meeting had been previously determined in absentia, and it did not take place due to the lack of a quorum. There is no evidence that all the residents of the house, including the plaintiffs, were properly notified of the meeting and of the decision taken by the house council to switch to the questionnaire. There is no such decision by the Council of the house. However, it should be borne in mind that the Defendant provided evidence that on April 25, 2023, an initiative group of 41 apartment owners joined forces and sent a notification of the convening of an initiative group meeting on April 21, 2023 to a WhatsApp group called the Main Chat of the Zheruyk AXIS, where the group members are all apartment owners. An advertisement was also submitted in the newspaper, where the notification stated that the meeting would be held on May 1, 2023 at 20:00 at the address: 223 N. Ave., A. Sec., Almaty.., 2nd floor, conference room. These facts were notarized and provided to the court. The case file contains a Protocol of inspection of evidence dated 11.10.2023. The board also points out that the defendant's side did not provide evidence that, according to the rules of Article 42-2 of the Law, which is illegal in view of the above facts.
According to paragraph 4, Article 42-1 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), it is stipulated that each owner of an apartment or non–residential premises has one vote when voting. If the owner of an apartment or non-residential premises owns several apartments or non-residential premises, he has the appropriate number of votes.
The Board found that citizen T.A., without confirming his authority to sign questionnaires from other owners, signed numerous questionnaires, which is not disputed by the defendant's side. We disagree with these arguments, as we have repeatedly stated during the trial that gr. Tkachenko A. signed the written survey sheets on behalf of the developer, A...-Stroy LLP, on the basis of a power of attorney dated 04/21/2023, where A..-Stroy" authorizes gr. T.A. to sign the questionnaires. The case file contains this power of attorney. At "A." LLP..-Stroy" on the right of ownership in the residential complex "Zh." there are 28 non-residential premises. Accordingly, the signing of the written survey sheets by gr. T.A. is legal.
The Board found that the multiple-member questionnaires did not contain the full name of the owner of the non-residential premises and the signature. They are signed by responsible persons, but there is no transcript of the signature and documents, or a seal confirming the authority of the responsible person, some owners vote repeatedly, sometimes three times, the questionnaires are not signed by the owners of the property, some apartments and non-residential premises are missing in the residential complex, there are questionnaires without the signature of the owner, without the data specified in the Law.
All these violations were not assessed by the court of first instance. However, we also disagree with these arguments, since the court of first instance assessed this issue as follows: when examining the questionnaires (in this part) The court concluded that these formal grounds do not indicate the absence of a quorum, since the plaintiffs, in violation of the requirements of Article 72 of the CPC, did not provide acceptable and reliable evidence that the questionnaires (listed in the claim with these violations) were not signed by the owners, given that there are signatures in the relevant voting columns. As for the voting sheets indicated by the plaintiffs as unsigned by the owners, the court found that the signatures of the owners are indicated in the columns on the issues put to the vote.
We agree with the decision of the court of first instance. Indeed, in accordance with art. 72 of the CPC, the plaintiffs had to prove that the questionnaires were signed by other persons, and not by the owners.
On October 16, 2023, we received an official response No. HT-2023-02073716 from the Department of Justice of Almaty city, where the justice department confirms the state registration of the Association of Property Owners of the "Multifunctional Residential Complex Prospekt N.N. 223" represented by the Chairman of K.B.T. The last registration took place on June 1, 2023.
The Board indicates that the chairman of the AXIS at the time of summing up the voting results, D.G.E. did not participate in this. The defendant's party has not provided any evidence of proper notification of her, of the voting results. However, during the trial, we have repeatedly stated that D.G.E. was notified of all meetings and, moreover, was invited to summarize the voting results. The plaintiff, D. G.E., did not get in touch without explaining the reasons and did not take any part in resolving issues related to the quorum. Moreover, the plaintiff is D.G.E. I took all the documents belonging to the AXIS with me. This was reported to law enforcement agencies.
The Board unlawfully indicates that the defendant provided the protocol decision of the general meeting of the AXIS "MZHK Prospekt N. 223" dated February 23, 2024, where it was decided to rename the AXIS and re-elect K.B.T. as chairman of the AXIS. This circumstance also confirms the illegal actions of the defendant's side during the meeting on May 15, 2023.
However, during the trial, it was also stated that more than 10% of the owners initiated the renaming of the AXIS and the final re-election of the AXIS Chairman. Thus, by Protocol No. 3 of the general meeting of owners of apartments, non-residential premises of an apartment building (conducted by written survey) dated February 23, 2024, the owners of apartments, non-residential premises at the meeting considered several issues and made a decision related to the management of the condominium facility and the maintenance of the common property of the condominium facility. The agenda included questions about the re-election of the chairman of the AXIS, the approval (adoption) of a new charter, and the renaming of the AXIS to Jeruiq Almaty, etc. 230 owners voted in the written survey, which is 56.65% of the total number of owners. Based on the results of voting on the question. "Should Kenzhebulatov B.T. be elected chairman of the Jeruiq Almaty AXIS?" 227 owners voted in favor, no one voted against and 3 owners abstained.
It should be noted that according to art. 42-1 of the Law, which stipulates that at least ten percent of apartment owners have the right to initiate a meeting by announcing the date of the meeting at least ten calendar days in advance by placing an announcement in publicly accessible places.
The board went beyond the scope of the claims, and incorrectly assessed the evidence.
The meeting is authorized to make a decision if more than half of the total number of apartment owners and non-residential premises participate in it.
The defendant believes that the court of first instance correctly identified and clarified the range of circumstances relevant to the case, and correctly assessed the evidence presented by the party. Moreover, he assures that all the owners are happy to appoint K.B.T. as Chairman of the AXIS, since K.B.T. fulfills its obligations properly. Faithfully manages the AXIS budget and adheres to all the rules for the maintenance of the common property of the condominium facility.
According to Article 434 of the CPC RK, which stipulates that judicial acts of local and other courts that have entered into force may be reviewed in cassation by the Supreme Court of the Republic of Kazakhstan in the event of compliance with the appellate procedure for their appeal, judicial acts rendered in cases considered under the rules of Article 28-1 of this Code.
On May 29, 2024, this petition for the cassation review of judicial acts was filed with the Supreme Court of the Republic of Kazakhstan. On June 7, 2024, the Supreme Court of the Republic of Kazakhstan returned our petition in accordance with Part 1 of Article 442 of the CPC. The reason for the return is the following: This petition is signed by Kenesbek I.M., while it is certified with an electronic digital signature by Sarzhanov G.T. At the same time, from the power of attorney attached to the petition dated September 6, 2023 in your name, the validity period of the power of attorney is December 31, 2023. The petition for a cassation review of the judicial act was submitted to the Supreme Court of the Republic of Kazakhstan on May 29, 2024, that is, after the expiration of the power of attorney. Part 3 of Article 441 of the CPC stipulates that if the petition was previously filed with the court of cassation and was returned, the petition must indicate the reasons for the return. To date, the petition contains complete information about all the persons involved in the case, indicating their place of residence or location, and the reasons for the return of the petition.
Based on the above, as well as paragraphs 1, paragraph 1, art. 444 of the CPC RK and paragraphs 2, paragraph 2, art. 451 of the CPC RK,
I ASK THE COURT:
· To submit the petition with the case for consideration at the court session of the cassation instance of the Supreme Court of the Republic of Kazakhstan;
· To cancel the decision of the Judicial Board for Civil Cases of the Almaty City Court dated March 27, 2024 and to uphold the decision of the Bostandyk District Court of Almaty dated December 5, 2023.
With respect,
Representative by proxy: _____________/ Kenesbek I.M.
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