22 Feb THE DECISION ON WHETHER TO OBTAIN A DETAILED EXPERT REPORT BASED ON THE AUDIT OF THE PARTIES AND THE JUDICIARY IN TERMS OF THE PARTIES’ REQUESTS IN ORDER TO DETERMINE WHETHER THE PARTIES ARE CREDITORS OF EACH OTHER BETWEEN THE PREVIOUS PERIOD AND THE CONTRACTUAL PERIOD
T.C. THE DECISION OF THE SUPREME COURT
13.law office
Base: 2015/37944
Decision: 2015/34696
Date of Decision: 30.11.2015
THE CASE OF CANCELLATION OF THE APPEAL – DUE TO THE DECISIVENESS OF WHETHER THE PARTIES ARE CREDITORS OF EACH OTHER BETWEEN THE PREVIOUS PERIOD AND THE CONTRACT PERIOD – A DETAILED EXPERT REPORT WILL BE RECEIVED BASED ON THE PARTY AND JUDICIAL AUDIT IN TERMS OF THE PARTIES’ REQUESTS
SUMMARY: Whether the TL net consultancy fee, which is agreed in the contract with the balance receivable from the period before the contract and must be paid in advance between 1-5 of each month, is paid regularly and dec decently, whether the parties are creditors of each other between the period before the contract and the contract period until the date when the plaintiff and the defendant lawyer resigned, according to whether the resignation is justified by examining it in detail, a decision should be made in accordance with the result that will be obtained by receiving a detailed expert report based on the requests of the parties to the audit of the parties and the judiciary, while it is contrary to the procedure and law that it was decided otherwise as a result of an incomplete review. It requires disruption.
(1136 P. K. m. 171, 174) (1086 P. K. m. 440) (YHGK 23.03.1983 T. 1981/4-562 E. 1983/156 K.) (YHGK 03.07.1987 T. 1987/3-92 E. 1987/599)
Case and Decision: At the end of the trial of the case for the cancellation of the appeal between the parties, a summons was sent to the interested parties upon the appeal of the decision to dismiss the case by the plaintiff-dec-defendant’s lawyer for the reasons written in the application for a hearing. On a certain day, the plaintiff Aslan M.. Y.. and the acting lawyer is H.. T.. He.. with the respondent M-A.. Ltd. Şti. the acting lawyer is M.. T..after the oral statements of the lawyers present were heard, the hearing was started and left for another day for the decision. This time, the file was examined, it was determined that the appeal petition was in due course, and it was discussed and considered as necessary.
The denial of the case file in the study of principal, combined the defendant against the plaintiff for partial adoption of the court decision of the case on appeal where the decision is made to corruption 21.10.2015 blog with the decision of our apartment, apartment reasoned motion with the decision to head of the department and signed by the members of the decision, written in pen in the decision this decision, despite the confusion in the writing phase UYAP system due to impaired decision decision decision instead of the system to another part in the destruction of the announcement with the title have nothing to do with the ref’s another issue written, the plaintiff demanded the elimination of a material error in this regard, whether understood the above-mentioned issue originates from the UYAP system and error during the writing phase because it is in the nature of this material, with the acceptance of the plaintiff’s substantive material error in our apartment on the elimination of errors in the nature of the request and the date and contains the name of the chairman and 10 members of our apartment 2014/38981 21.10.2015-2015/30868 is removed before the decision of the first court’s decision as a declaration written and signed, and the decision had to be made to the principle of corruption.
The plaintiff, in the actual case; that he is a lawyer, that he started providing legal services to the defendant since January 2004, that he signed a written contract for a period of 1 year on 09.10.2009 titled Legal Consultancy business follow-up principles and dated 01.08.2009 starting from 09.10.2009 after problems arose in the direction of payment of fees, according to this agreement, the defendant will serve as a proxy for litigation and enforcement proceedings with consulting services in exchange for monthly as of 01.08.2009 2.000.00.TL a net consultancy fee will be paid, in addition, only the opposing attorney’s fee will belong to him due to litigation and enforcement proceedings, no contractual attorney’s fee will be paid, Ankara 3. Based on the Executive Directorate 2008/18658 track 86.717.00 numbered from the file.TL retainer for the file that will receive 50.000.00 on 25.05.2009.TL’ s is within the knowledge of the defendant to prison that keeps on using the right by written 26.685.80 for the period before signing the agreement.TL will take on that is, after the contract was signed 2.000.00.Monthly consulting fee of TL verbally and by e-mail request, despite that was not paid regularly since 28.06.2010 has resigned as right on, right in Ankara due to the resignation 6. In relation to the Commercial Court of First Instance file No. 2008/6541 57.0608.08.TL ankara 1. For the collection of the opposite side power of attorney fee. Executive Directorate No. 2012/1159, Ankara 1. In relation to the Commercial Court of First Instance file No. 2005/6081 30.037.95.TL ankara 24 for the collection of the opposite side proxy fee. No. 2012/6424 of the Executive Directorate, Istanbul 8. In relation to the Commercial Court of First Instance file No. 2009/3891 11.206.16.TL ankara 30 for the collection of the opposite side proxy fee. Claiming that the Enforcement Directorate initiated a follow-up in the enforcement files numbered 2012/7961, but the defendant objected to these follow-ups unfairly, he requested that the cancellation of the objections to these enforcement files and the decision on 40% enforcement denial compensation be made.
The combined lawsuit the plaintiff of the defendant, the plaintiff sued the defendant a written contract that is dated 09.10.2009 combined with the written contract are reported to us by a lawyer from the previous period in terms of Section ibralastig the terms from the contract of the parties as related to the period prior 20.000.00.TL+ KDV and afterwards they had agreed to pay as they pay the monthly fee to be paid under the terms of the written agreement to the payment of the plaintiff, the plaintiff sued the defendant signed the agreement combined according to “recharge at the latest until the last day of that month the money that a business owner must make a deposit to your accounts, as” despite the verdict, made of litigation and enforcement proceedings in relation to out-of-the plaintiff sued the defendant deposited in the account of Keçiören Municipality combined by 50.000.00.Be informed before the convention from TL that, accordingly, the plaintiff’s attorney defendant deposited the money and the creditor is externally combined upon request of resignation resignation resignation of the plaintiff’s attorney in accordance with the unjust and unfair claim settlement from the task in hand against the side more because of the attorney’s fee, to be rightly objected to the enforcement proceedings, combined externally to the plaintiff over the defendant’s attorney also charged and 50.000.00 hired as unfair.TL’ s interest in monitoring the plaintiff sued the defendant committed his execution, combined with the collection against the denial of the original trial has been contested by stating that, opened by itself, and combined with the acceptance of the objection begged for the removal of the case to be decided.
Refusal of the original case by the court; partial acceptance of the case in terms of the merged case by Ankara 11. 50.000.00 2012/6889 numbered based on the Executive Directorate in the execution file.13.241.10 principal receivables and TL.63.241.10 committed TL total interest.Upon withdrawal of Appeal towards TL, principal legal interest from the date of the receivable follow up the implementation made a decision; terms, was appealed by the plaintiff sued the defendant combined.
1- According to the Code of Obligations, it is always possible to resign as a proxy, and this resignation is a disruptive and innovative process that ends the proxy relationship going forward. But if the resignation is not justified, and the client has also suffered losses for this reason, the deputy is responsible for this damage. In the Lawyer’s Code, in case of unfair resignation, a heavier liability basis has been introduced from the point of view of the attorney in accordance with the regulations on the same issue in the Code of Obligations. Indeed, in Article 174/1 of the Law on Advocacy, “a lawyer who gives up pursuing the work he has taken on for no justifiable reason cannot make a fee claim.” there is a provision that states that a lawyer who resigns from a power of attorney for no justifiable reason is held liable to his client without any damage conditions, unlike the general rules on the contract of attorney in the Code of Obligations. According to the mentioned regulation, a lawyer who has left his job unfairly and resigned from the power of attorney cannot qualify for a fee, as well as the advance fees he receives if there is no provision to the contrary, and the cost advances he does not use must be returned to the business owner if there is no provision to the contrary.
Regulated by Article 171/1 of the Law on Advocacy, “A lawyer follows up his/ her work according to the provisions of the law and to the end, even if there is no written contract. 2 of the ” and “Minimum Wage Tariff for Lawyers”. “…the attorney’s fee is the equivalent of the litigation, business and transactions fee until the final decision is reached.” in accordance with the provisions of the lawyer, if there is no contract to the contrary, he cannot claim his fee without following the work to the end and concluding it. (See Fig. In the same direction, HGK. 23.3.1983 4/562-156; HGK. 3.7.1987 3/92-599; 13. HD. 2005/15433 E. 2008/3694 K.; 13. HD.E. 2008/6280 2008/11580 K.) However, as in the case of unfair dismissal, if the lawyer has rightfully resigned from the deputy position, the lawyer may request payment of the attorney’s fee, which is due as of the date of his rightful resignation, since there is no opportunity to continue working.
On the other hand, the power of attorney relationship is a whole, and like decommissioning a power of attorney, resignation also affects all lawsuits and follow-ups between the parties. Because, along with dismissal and resignation, the “trust relationship”, which is one of the most important elements of the power of attorney, also ends.
After these statements, the subject of the lawsuit will be looked at the events; the main case, the receivables and the enforcement proceedings for the collection of attorney’s fee to the opposite side of objection to the cancellation, the combined case, the executive or another part of his collection of the deputies get done externally tracking your attorney about the enforcement proceedings for the collection of objection to the request for cancellation is related to and, since 2004, the lawyer for the plaintiff, coupled lawsuit lawsuit the defendant of the defendant to the plaintiff for the combined started to provide legal aid, signed a contract written on 09.10.2009 ended with the resignation of the relationship and the proxy dated 28.06.2012, it is understood that the plaintiff’s lawyer has been acting as the defendant’s attorney since the date he resigned, and none of the cases he has filed have been concluded. The proxy-client relationship between the parties, which began at the beginning of 2004, was concluded by written agreement on Dec. 09.10.2009. According to this contract, the plaintiff’s attorney-monthly by the defendant in exchange for consulting services from the date of 01.08.2009 2.000.00.TL paid a wage net of VAT and withholding tax of the business owner to belong to the statutory obligations in litigation attorney attorney’s fee against the side will belong to any payments made will not be out of it to the lawyer, the monthly payment of the fixed fee to be paid in advance of each month between 1-5 business on behalf of the owner collection, it has been decided that it will be delivered to the business owner no later than the last day of the charged month after deductions are made in accordance with the principles of the contract, and there will be no relevant receivables for the period before that. Ankara 3. 2008/18658 numbered based on the Executive Directorate in the following file, the creditor of the defendant as trustee on behalf of the company combined the lawsuit the plaintiff by the defendant against the plaintiff sued the debtor for the combined 557.272.27 Keçiören Municipality from the case on 18.12.2008.TL take over with the finalization and monitoring of the execution proceeding that has been made in the case of the borrower, out of 2 times 50.000.00 by the mayor. as ‘er TL’, the defendant made a deposit in the merged plaintiff’s account, and once on 25.05.2009, the plaintiff made a deposit in the merged plaintiff’s lawyer’s account 50.000.00.TL it is understood that it was deposited. Plaintiff The lawyer of the defendant in the merged lawsuit was credited to his account by the Mayor’s Office on 25.05.2009 out of the lawsuit 50.000.00.TL that the defendant who owns the business is aware that the plaintiff of the merged lawsuit has been processed even in the company’s commercial books, and knowing this situation, the parties have been notified in terms of the previous period in the contract signed on 09.10.2009, also the receivable balance from the previous period each month, with 1 -5% between 2.000.00 must be paid in advance.TL verbal and net advisory fee by e-mail in spite of all the warnings, regularly non-payment as justified due to his resignation, combined externally charged by the lawyer of the plaintiff to sue the defendant 50.000.00.TL 09.10.2009 agreement dated before the lawyer had not been informed that much of this money was being held by and later learned as unfair, and consulting fees from the period before the convention, with the remaining balance that was paid monthly, they have claimed and defended it. Although the expert report based on the court’s decision should be paid to the plaintiff’s lawyer on a monthly basis 2.000.00.TL according to the Law on Lawyers and the Minimum Wage Tariff for Lawyers, no side attorney fee can be charged before the work is completed, on the grounds that the fee has been paid, the resignation is unfair and, accordingly, the rejection of the original case; in terms of combined litigation, the plaintiff sued out by the defendant of the case from the municipality 50.000.00 combined externally charged on 25.05.2009.TL’ s combined the lawsuit the plaintiff and the defendant are not reported timely in accordance with the agreement of the right reasons, whether to prison terms and conditions of use, combined with partial 50.000.00 with the acceptance of the case.13.241.00 principal receivables and TL.63.241.00 committed TL total interest.A decision is made on the withdrawal of the appeal in terms of TL, especially without a detailed review of the company on the books for a fixed monthly fee and pursuant to the contract dated 09.10.2009; 1-5 of each month’ i regularly between has been paid, whether the prior period and the period of the contract from the contract between the parties until resignation dated 28.06.2010 file regarding whether they are offered to the creditors of each other, receipts, statements, and e-mail correspondence from discussing exactly this expert report has been issued and that are also inadequate because it cannot be based on the provision of expert reports. In that case by the court, an expert witness or expert in the field of re with the skill of the delegation out of the case, the lawyer for the plaintiff sued the defendant by the mayor on 25.05.2009 combined 50.000.00 deposited in the account.TL’ s processed into the Commercial Registry of the company, whether on the date on which a signed contract are processed so committed with the previous period in terms of ibralastik 09.10.2009 of the parties are also considering the lawsuit the plaintiff from the defendant company combined the collections of whether you have been informed before the convention, in addition, the balance due from the period before the contract must be paid in advance between decisively agreed in the contract and 1-5 of each month 2.000.00.TL whether the net consultancy fee is paid regularly and on time, whether the parties are creditors of each other between the period before the contract and the contract period until 28.06.2010, when the plaintiff’s decoupled plaintiff’s lawyer resigned, according to whether the resignation is justified or not by examining it in detail, a decision should be made in accordance with the conclusion that will be obtained by receiving a detailed expert report based on the requests of the parties to the audit of the parties and the judiciary, while it is contrary to the procedure and law that it was decided in writing above as a result of an incomplete review. It requires disruption.
2-According to the reason for the violation, the plaintiff did not consider it necessary at this stage to examine the other appeals of the defendant in the unified lawsuit.
Result: 1. 2. if, for the reasons described in paragraph, the appealed provision is OVERTURNED for the benefit of the plaintiff and the defendant of the merged lawsuit, the for the reason described in the paragraph, the plaintiff is not involved in the examination of the defendant’s other appeals of the merged lawsuit at this stage, the defendant’s $ 1100.00 trial attorney’s money is taken from the plaintiff’s merged plaintiff and paid to the plaintiff’s merged defendant, the fee of $ 855.00 received in advance is returned on request, in accordance with Article 440/1 of the HUMK, the decision correction path is open within 15 days of notification, on 30.11.2015, the unanimous decision is made on 30.11.2015 with, it was decided.
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