2017 Ghana 103502 Service charges

Main Engineering Co., Ltd.

Salytic Area Housing Association

November 3, 2017

December 15, 2017

1. The defendant shall pay to the plaintiff 85,60,000 won with 15% interest per annum from May 2, 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. On January 28, 2014, the Plaintiff entered into a service contract (hereinafter “instant contract”) with the Defendant seeking to undertake a new construction work of an apartment (hereinafter “new construction work of the instant apartment”) on the 61-4 and six parcels of Sari-ri, Sari-ri, Sari-ri, Sari-ri, Sari-ri, Sari-ri, Sari-ri, Gari-si, which was an implementation plan for the new construction work

B. According to the instant contract, the Plaintiff’s service content is “services for the implementation plan for the new construction of the Housing Association in the Geae master area” (Article 3 subparag. 2 of the General Conditions of the Technical Services Contract, which is a part of the contract), the service cost is KRW 130 million when the contract is concluded, KRW 432 million, KRW 130 million when the contract is submitted, KRW 180 million for the first time when the authorization is submitted, KRW 180 million for the second time when the authorization is granted, KRW 180 million for the second time when the authorization is granted, KRW 86 million for the second time when the completion is completed (Article 8 of the General Conditions of the Technical Services Contract).

C. On December 10, 2014, the Plaintiff and the Defendant entered into a “a incidental civil engineering (change) design work following the new construction of the Housing Association in the Geaeae Cable District.” The content of the services to be performed by the Plaintiff was “a incidental civil engineering work (change) for the Construction of the New Construction of the Housing Association in the Geaeea District Housing Association” (Article 3 subparag. 2 of the General Conditions of the Technology Services Contract). The service price was KRW 50 million when the contract was entered into with the total amount of KRW 275 million, KRW 500,000,000,000 for the contract amount of KRW 1,2,30,000 for the end of January, March, 205, KRW 5,000 for the third and five years for the completion of construction, and KRW 55,000,000 for the completion of construction

D. The Plaintiff prepared documents, including the instant contract and the ancillary civil engineering (amended) design service contract, authorization of implementation plan, modification of implementation plan, design drawings and documents necessary for changing development activities, and completed drawings and documents.

E. On January 8, 2016, the Defendant obtained a provisional use approval for multi-family housing (multi-family housing) 14 units, resident welfare centers, and guard rooms among the instant apartment construction construction works as a result of the Plaintiff’s service performance, and obtained a provisional use approval for the entire new construction works, including a partial framework of incidental welfare facilities, excluded from the subject of a provisional use approval following a change in design and an amendment to an implementation plan.

F. The Plaintiff did not receive KRW 85.6 million out of the contract price of the instant case from the Defendant. The Plaintiff was fully paid the service price for the ancillary civil engineering (revision) design service contract as described in paragraph (3).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 6, 9, 12 (if there is a lot number, the number No. 2), Eul evidence No. 2, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is obligated to pay 85.6 million won the remainder of the contract price of this case, which the Defendant agreed to pay to the Plaintiff at the time of completion, on January 31, 2017, because all of the services for authorization of the implementation plan under the instant contract and the apartment newly built by the Defendant was approved for use on January 31

B. Defendant’s assertion

In the services to be performed by the Plaintiff under the instant contract, all the rental business for the approval of use, such as the preparation of documents necessary for the application for approval of use and the supplementation, correction, etc. of documents, and the completion money to be paid at the time of completion falls under the price for the said services. The Plaintiff is not obligated to pay the Defendant the balance equivalent to the internal price of the work not performed by the Plaintiff, on January 8, 2017, because the Plaintiff only performed the business until approval of provisional use was obtained, and did not perform the necessary documents and the rental business until the time of approval of the regular usage inspection

3. Determination

A. Under the instant contract, the Plaintiff’s service service is authorized as an implementation plan for the new apartment construction of this case. The Plaintiff performed the work of preparing documents, such as design documents necessary for authorization of the implementation plan. On January 8, 2016, the fact that a provisional use approval was issued based on the Plaintiff’s work performed is recognized as above.

B. As alleged by the Defendant, there is no evidence to support that the service to be performed by the Plaintiff under the instant contract includes all the rental business for the purpose of approval, such as preparing all documents necessary for the application for approval of use and supplementation and correction, until the construction is completed in excess of the duty to authorize the implementation plan of the instant new apartment construction

Article 4 of the General Conditions for the Technical Service Contract of this case provides that "the plaintiff shall know about the contents of all laws and regulations related to the service and contract and perform them by the deadline for completion of the service task." Article 9 provides that "the defendant may inspect the service performance and goods, and the plaintiff shall request re-inspection in response to the defendant's request for supplementation." However, unless the contract of this case provides that the plaintiff's service can be "service" as "service implementation plan for new construction work", it shall not be deemed that the time of completion of the service or the plaintiff shall have the duty to supplement all necessary work until completion of the work. Article 8 of the General Conditions for the Technical Service Contract of this case sets the time of payment of 20% of the service price at the time of completion of the work, and therefore, it shall be deemed that the service price of the above 20% is a cost for performing the work necessary for completion of the work." Article 14 of the General Service Contract of this case provides that "the plaintiff shall not perform the work without any error in the procedure of permission or permission."

C. Even if there is room to interpret that the construction of the instant apartment in accordance with the Plaintiff’s work performed to authorize the implementation plan, including the Plaintiff’s work of preparing, supplementing, and correcting documents necessary until the completion of construction, such work is an incidental work within the extent that the additional cost does not incur much. Considering the following circumstances, it is difficult to recognize that the Plaintiff failed to perform the work under the instant contract on the ground that there was no agreement on the conclusion of the additional service contract or the payment of additional service payment after January 8, 2016, on the ground that the Plaintiff did not perform the work necessary for the completion of construction of the instant apartment in the instant case, on the ground that there was no agreement on the conclusion of the additional service contract or the payment of additional service payment.

1) On December 2015, the collapse caused by the inflow of flowing water into the retaining wall of the instant apartment construction site (e.g., it is difficult to recognize that the collapse was caused by the Plaintiff’s design service defect) from the reinforcement of the retaining wall at the construction site of the instant apartment construction site, and the modification of the construction completion condition, i.e., the modification of the design, and

2) Around October 2016, the Defendant entered into a contract for modifying design plans and implementation plans for modifying design plans and implementation plans. In fact, the Defendant entered into a contract for modifying design plans (a supplementary civil engineering design change, landscaping design change, and neighboring park building plan change) and for modifying approval of implementation plans (around October 2016, KRW 176,000,000,000,000.

3) After concluding the instant contract with the Plaintiff, the Defendant entered into the incidental civil engineering design (revision) and entered into an additional contract on December 10, 2014 with the amount of KRW 275 million for the service cost of KRW 275 million.

4) Article 5 of the technical service contract of this case and the general conditions of the technical service contract of the incidental civil engineering design (amended) provides that if necessary for the smooth performance of services, the contract amount, service period, and the contents of other related services may be modified by mutual consultation. After obtaining approval for temporary use on January 8, 2016, the Plaintiff requested the Defendant to pay the balance of service payment and then requested the approval for use until the time of approval for use, and notified the Defendant that all the expenses incurred in providing technical services will be claimed for a separate consultation. However, the Defendant did not refuse payment for the reason that the Plaintiff requested the Plaintiff to complete the service required for completion before concluding the contract with the Seoi engineering service contract, or that the Plaintiff failed to perform the contractual service of this case.

D. Therefore, the remaining payment period for the Plaintiff’s service under the instant contract is the time of the completion of apartment construction and as seen earlier, the completion of apartment construction was completed on January 31, 2017. Therefore, the Defendant is obliged to pay to the Committee the remainder of service payment of KRW 85.6 million and the damages for delay determined at the rate of 15% per annum from May 2, 2017 to the date of delivery of the original original copy of the instant payment order with respect to this case’s payment order.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Cho Jae-won