2017 Ghana 200572 Damages (ar)

A

B Regional Housing Association

August 25, 2017

November 17, 2017

1. The defendant shall pay to the plaintiff 54,48,00 won with 15% interest per annum from January 19, 2017 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

The defendant is a regional housing association (hereinafter referred to as "the association of this case") established for the purpose of newly building "B apartment house of the regional housing association in Gwangju City C" (hereinafter referred to as "association apartment of this case"), and the plaintiff was a member of the association of this case.

B. Conclusion of a partnership joining agreement and payment of charges between the Plaintiff and the Defendant

1) On May 12, 2015, the Plaintiff and the Defendant concluded an agreement to join an association (hereinafter referred to as the “instant agreement to join an association”) with the content that the Plaintiff would pay the Plaintiff the Plaintiff’s share of expenses to the Defendant, and in return, the Defendant would purchase one unit of the instant association apartment from the Defendant.

2) After that, the Plaintiff paid 54,488,000 won to the Defendant, including agency fees, down payment and first intermediate payment, and land tax, pursuant to the contract to join the instant association.

(c) Resolution of an extraordinary general meeting concerning the increase of charges and proposal for the conclusion of an amendment contract thereby;

1) On October 25, 2016, the Defendant held an extraordinary general meeting (hereinafter referred to as “instant extraordinary general meeting”) with “an increase in the shares of members,” etc., and a resolution was passed to increase the shares of members at the said extraordinary general meeting.

2) On December 1, 2016, the Defendant requested the Plaintiff to enter into a modified supply contract (hereinafter “instant modified supply contract”) on or before December 9, 2016, which reflects additional charges. However, the Plaintiff refused to enter into the said modified supply contract.

D. The Defendant’s expulsion against the Plaintiff

The Defendant rejected the conclusion of the instant modified supply contract, and subsequently, on December 15, 2016, ordered the Plaintiff from the instant partnership on the grounds of Article 12(3)2 of the instant Union Regulations and Article 6(1)4, 6 through 8 of the Agreement on the Admission to the instant Partnership.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 7, and purport of the whole pleadings

2. Summary of parties' arguments;

A. Summary of the plaintiff's assertion

In concluding the instant partnership agreement, the Plaintiff and the Defendant agreed to collect the association members’ contributions. However, at the special meeting of this case, the Defendant resolved to raise the association membership agreement of this case and the monthly contributions of the association members. In addition, the Defendant forced the Plaintiff to conclude the instant modified supply agreement, and ordered the Plaintiff to refuse to conclude the said agreement, and ordered the Plaintiff to remove the Plaintiff. This is unlawful. Accordingly, the Defendant shall compensate the Plaintiff for the damages suffered by the Plaintiff due to an unlawful expulsion. The amount of damages is KRW 54,48,00,000, the Plaintiff paid one household of the instant association apartment as a member.

B. Summary of the defendant's assertion

Under the agreement to join the association of this case, it is premised on the fact that there is no change in the business plan when obtaining approval from the competent administrative agency for the establishment of the association. The defendant notified the plaintiff of the fact that the plaintiff may additionally bear the shares of the union members when the expenditure increases due to a change in the business plan, and obtained his consent from the plaintiff. Nevertheless, the plaintiff refused to enter into the agreement to supply this case when refusing to pay the additional shares determined through the resolution of the special general meeting, which constitutes the ground for expulsion of the union members under the agreement to join the association of this case. Therefore, the expulsion of the defendant is legitimate, and the defendant is merely obligated to refund the plaintiff the penalty, the interest on the loan that the plaintiff paid to the defendant, and the expenses for the agency.

3. Determination

A. Whether the shares of the union members of the instant case are determined charges

1) Most of the provisions in the contract of joining the association of this case are printed in the same vice language. On the other hand, the provisions in the contract of joining the association of this case are deemed to have been added while entering into the contract of joining the association of this case (the provisions in the confirmation charge of this case are not printed differently from other provisions, but signed and sealed as rubber). At the time of entering into the contract of this case, at the time of entering into the contract of this case, the charges of the association members of this case were presumed to have been determined

2) On this premise, the Defendant asserts to the effect that the provisions of this case’s final charges are not modified. Thus, when a business plan is modified, it may demand members to pay additional charges, notwithstanding the provisions of the final charges. However, there is no provision that reflects the same purport as the Defendant’s assertion in the contract of joining the association of this case, and there is no evidence to deem that the content otherwise asserted by the Defendant was incorporated into the agreement of joining the association

3) At the time of concluding the instant association membership agreement, it was sufficiently anticipated that there was an increase or decrease of charges due to changes in the business plan at any time, as well as the approval for establishment of the association. Accordingly, the Plaintiff and the Defendant have a special clause stipulating that the total amount of charges may be increased by using the same text as referred to in Article 1(3) of the instant association membership agreement. Nevertheless, the Plaintiff and the Defendant shall immediately affix rubber seal and become final and conclusive charges. In addition, even if discussions were held on the occurrence of additional charges at the inaugural general meeting on April 18, 2015 before entering into the instant association membership agreement with the Plaintiff on April 18, 2015, before entering into the agreement with the Plaintiff, the said special agreement entered into with the Plaintiff into the agreement with the Plaintiff (which is the ground for recognition: A evidence No. 1 and No. 2 evidence No. 2). In light of this, the said special agreement should be interpreted to have been concluded by the Defendant that there was no change in the total amount of charges

C. As alleged by the Defendant, if there was an agreement that no charge exists prior to the approval of a project plan until the approval of a project plan is granted, and the situation changes in the plan at the time of the approval of the project plan, which would change the situation, there is no reason to stipulate a special agreement that the charge may be increased, even if there was an incidental letter to such purport, while affixing rubber seal immediately next thereto.

4) The Defendant asserts that the Plaintiff consented to the increase of the charges by citing the Plaintiff’s consent form, written consent form, written consent form, and written consent form, i.e., the Plaintiff’s consent form, written consent form, and written consent form. The Plaintiff’s consent form, written consent form, and written consent form, are recognized. ① It is also recognized that the Plaintiff’s consent form, written consent form, written consent form, and written consent form, stated that “The charges for members did not include acquisition tax, registration tax, preservation registration expenses, individual charges (school site charges and development charges), and individual interior terms, etc. related to the project in question.” However, it is reasonable to deem that the above expenses are highly in terms of the nature to be borne by each member for the individual interests of each member from the beginning of the year, and that there was no direct relation between the amount to be paid by each member for the project in question and the amount to be paid by the Plaintiff to the Defendant. Therefore, it is difficult to view that the Plaintiff consented to the change of the new project plan form, written consent form, written as follows.

In such a case, there is no statement on the purport that a member’s contribution may be added. Accordingly, even if the Plaintiff prepared a written consent to the project plan and submitted it to the Defendant, it is difficult to deem that the Plaintiff consented to the fact that the instant member’s contribution is expected to be changed, or that the change was expected to be changed.

B. Therefore, it is unlawful for the Defendant to require the Plaintiff to enter into the instant modified public payment contract, which increased the charges, unlike its initial agreement, and to recommend the Plaintiff as a member on the ground that the Plaintiff did not comply with it.

C. Damages

As the Plaintiff loses its membership due to the Defendant’s unlawful expulsion, the Plaintiff suffered damages equivalent to KRW 54,488,00,000 paid under the agreement to join the instant association. Since the Plaintiff suffered damages due to the Defendant’s unlawful expulsion, there is no reason for the Defendant to deduct the Plaintiff’s expenses for the agent of the Plaintiff and the land tax borne by the Plaintiff to acquire land under the agreement to join the instant association for the Plaintiff from the Plaintiff’s damages, and there is no reason for the Plaintiff to bear penalty. Accordingly, the Defendant’s assertion on this matter

D. Sub-committee

Thus, the defendant is obligated to pay to the plaintiff 54,48,00 won and damages for delay calculated at the rate of 15% per annum from January 19, 2017 to the day of complete payment, which is the following day after the copy of the complaint of this case was served on the defendant as requested by the plaintiff, as a result of the tort.

4. Conclusion

The plaintiff's claim is accepted.

Judges Jin Jinio