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07.02.2022

The procedural law provides for the possibility of an appeal in one appellate complaint at the same time as a decision and an additional court decision adopted in one case

On December 15, 2021, the Supreme Court, as a member of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, considered, in the order of simplified legal proceedings, the case on the claim of INDIVIDUAL_1 against Alfa-Bank Joint Stock Company (hereinafter – Alfa-Bank JSC), a private notary of the Lutsk City Notary of the district, on declaring the deed invalid, declaring it illegal and canceling the decision of a private notary on the state registration of ownership rights to real estate and the obligation to take action.

The court of first instance made a decision on the satisfaction of the claim, declared the deed of transfer, approved by the decisions of the sole shareholder of Ukrsotsbank Joint Stock Company and the general meeting of JSC Alfa-Bank, invalid from the moment of its approval, in the part of the transfer of JSC Alfa-Bank ownership of the apartment. Recognized as illegal and annulled the decision of the private notary of the Lutsk city notarial district on the state registration of ownership rights to an apartment for JSC "Alfa-Bank" in the State Register of Real Property Rights. Restored the situation that existed before the violation of PERSON_1's ownership right, by renewing in the State Register of Property Rights to immovable property information about his ownership right to the apartment.
By an additional decision, the court charged the defendants with the legal costs incurred by PERSON_1 from the payment of the court fee and legal aid.
After leaving the appeal of the private notary of the Lutsk city notarial district motionless, the appeals court recognized it as unfiled and returned it to the defendant, noting that the applicant did not comply with the court's requirement to eliminate the shortcomings of the appeal regarding the impossibility of appealing at the same time in one appeal of independent procedural documents: the decision and additional the court's decision, which other participants in the case appealed separately.
The Supreme Court annulled the decision of the appellate court and referred the case to the appellate court to decide on the opening of appellate proceedings, making the following conclusions.
Ensuring an appeal of a court decision must be carried out by the courts taking into account the principle of the rule of law and be based on fair court procedures, provided for by the requirements of the provisions of the law, which regulate the resolution of relevant procedural issues.
According to paragraph 4 of the second part of Article 356 of the Civil Procedure Code of Ukraine, the appealed decision or resolution must be indicated.
The defendant appealed the decision of the court of first instance and the additional decision of this court.
According to Clause 3 of the first part of Article 270 of the Civil Procedure Code of Ukraine, the court that made the decision may, at the request of the parties to the case or on its own initiative, make an additional decision if the court has not resolved the issue of court costs.
An additional decision or a decision on refusal to adopt an additional decision can be appealed (part five of Article 270 of the Civil Code of Ukraine).
A systematic analysis of Articles 270, 352, 356, 357 of the Civil Code of Ukraine does not provide grounds for the conclusion that the procedural law does not provide for the possibility of challenging two procedural documents in one appeal at the same time: a court decision and an additional court decision, adopted by a court of first instance in one case .
In an additional decision, the court of first instance resolved the issue of distribution of court costs incurred by the plaintiff, which were subject to recovery from the defendants in connection with the satisfaction of the claims.
Therefore, such an additional decision, although it is a separate procedural document, but in accordance with paragraph 3 of the first part of Article 270 of the Civil Code of Ukraine, it is an integral part of the main court decision and can be challenged in one appeal along with the court decision.
In view of the norms of the Constitution of Ukraine and international law and the provisions of the Civil Code of Ukraine, the return of the appeal on formal grounds made it impossible for the defendant to access justice to protect his rights and interests through a trial.
You can read more about the text of the decision of the Supreme Court of December 15, 2021 in case No. 161/3482/21 (proceedings No. 61-14457св21) at https://reyestr.court.gov.ua/Review/102010546 .
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