Monitoring civil case O. Dunaev against LLC “BIOL” (session 11/06/2019)
On November 6, in the Melitopol City District Court of Zaporizhzhya Region, an open preparatory hearing was held on the recovery of debt under a lease agreement for non-residential premises, which was concluded in 2016 between LLC BIOL (defendant) and Oleg Dunaev (plaintiff). The plaintiff requests termination of the lease, release and return of real estate.
Experts from the International Society for Human Rights (ISHR) monitor this trial.
The Melitopol City Court is considering several claims in this case, including the lawsuit of O. Dunaev against O. Shostak (two owners of the enterprise) for the division of the BIOL factory located on the territory of Ukraine, and the lawsuit of O. Shostak against O. Dunaev for the return of funds paid.
During the trial, the court read out the rights to the parties to the case provided for in Articles 43 and 49 of the Civil Procedure Code of Ukraine. The judge repeatedly drew attention to the fact that the most important thing in the trial is that the parties respect each other.
Earlier, the court decided to provide the Defendant with the necessary documents for the consideration of the case, but at the moment BIOL LLC has not received a response from its state tax service.
In connection with the replacement of the representative of the Defendant (the power of attorney for the provision of the services of the previous lawyer was officially withdrawn), a request was filed by the Defendant to attach to the case file a notice of the court’s decision to request documents and acquaintance with the new lawyer. The Defendant’s lawyer also informed the Court that, for its part, BIOL LLC took all possible steps to provide the documents.
Applications were submitted by representatives of both parties. The Plaintiff read out a statement about the increase in claims and provided calculations where the rental amount was increased based on the rental amount of 1 (one) month, multiplied by 23 months (previously the amount of the debt was calculated by 4 months), which was sent by mail to the Defendant only on 4 November 2019, which deprived the Defendant of the right to timely read this statement and submit its objections and explanations.
The representative of the Defendant filed an application to leave the claim without consideration, arguing that when submitting the statement of claim, the representative of the Plaintiff did not provide the original order to confirm the authority granted, and the provided copy of the order was filled in improperly (a specific court was not indicated, the reverse side was not filled at all (where information about restrictions on the powers of a lawyer is indicated)).
The representative of the Plaintiff considered that the grounds set forth in the Defendant’s application to leave the claim unaddressed are not justified, and the application is not such that it can be satisfied by the court, since the Court accepted the claim for termination of the lease, exemption and the return of immovable property, and several court hearings have already taken place, and when submitting the statement of claim, the representative of Dunaev, who signed the lawsuit, was guided by general judicial practice.
Judge Bakhaev taking into account the case law of the European Court, in order to comply with the rights of both parties, including the right of O. Dunaev himself to appeal to the court, ruled to reject the application to leave the claim without consideration, and also granted the request of the representative of the Defendant to allow time to get acquainted with change in claims.
The next hearing is scheduled for November 22, 2019.
Experts from the International Society for Human Rights will continue to monitor this trial.