Court: the company that built the Klaipėda swimming pool will have to allocate 455 thousand. to eliminate the deficiencies of euros

The administration of Klaipėda city municipality asked the general contractor UAB “Axis Industries” to pay EUR 1,142,103 in defect removal costs, 8 percent annual interest and all litigation costs.

According to the plaintiff, the construction works of the swimming pool were started in November 2016 and finished in 2018. in March, the final deed of the transfer of completed construction works by the contractor to the builder was drawn up, which recorded the defects noticed during the transfer, and the contractor undertook to remove them by 2018. April 30 and non-conformities and deviations that do not constitute grounds for refusing to accept the works transferred by the contractor.

On the basis of the concession agreement, the municipality transferred the swimming pool building to UAB “Klaipėdos baasinas” under the right of trust.

Eriko Ovčarenko/BNS photo/Lithuanian swimming championship in Klaipėda pool

Found more flaws

After the start of operation of the swimming pool, even more shortcomings and deviations of the performed works from the technical design were revealed, which were not visible at the time of acceptance or appeared later, but for reasons that existed before the acceptance of the works. The defendant eliminated part of the shortcomings of the works at her own expense, but did not eliminate some of the shortcomings and kept delaying the fulfillment of her obligations.

The defendant filed a counterclaim in the case, in which she requested to award the municipality EUR 100,145 in damages caused by the illegal and unjustified use of the Guarantee of Guarantee Obligations issued by the bank.

According to the defendant, the Municipality, when applying to the bank for the payment of the guarantee, stated untrue circumstances regarding the defendant’s responsibility for the elimination of defects that emerged during the operation of the swimming pool, as a result of which the bank unjustifiably transferred EUR 100,000 to the Municipality.

Mediation did not help

The dispute between the parties was referred to mediation, but the mediation process was terminated when the parties failed to reach an agreement.

Photo of Klaipėda municipality/Klaipėda swimming pool construction

The district court that examined the case evaluated whether the defects specified in the list of more than 100 defects signed by the parties could have been known and obvious to the plaintiff and therefore, after the plaintiff accepted the work, settled with the contractor and started the operation of the building, the defendant would not be liable or the defects identified were those that were at the time of handover did not exist, were identified later or could not be seen, became apparent only after the building was put into operation, but were already present during the handover of the works, and the responsibility for removing such defects rests with the defendant.

Considering the specifics of the issues discussed in the case, two expertises were appointed in the case.

After receiving the expert’s findings, it was found that most of the recorded defects were obvious, but after the plaintiff accepted the works and started operating the building, the court decided that the costs of removing the obvious defects cannot be awarded to the plaintiff from the defendant. After evaluating the evidence in the case, the court concluded that the plaintiff proved that part of the defects, i.e. related to the management of the building management system, corrosion of the diving shaft, improper slopes of the pool floor tiles, improper roof slopes, improper floor covering on the evacuation routes, improper lightning protection, the leakage of the massage bath, leaking pipes and, as a result, the damaged ceiling, poorly equipped lawn and landscaping system, corroding pool details, water accumulating in certain places, the appearance of mold in the ceilings and in the spa area, cracked asphalt, improper balancing of air flows, poorly performed facade work and as a result, water flows through the facade, with improper distance of heat pipes from electrical wires, cable installation that does not meet safety requirements, corroding cable trays, non-functioning lights, could not be noticed during the handover of the works, i.e. they were not obvious. The amount of EUR 741,207.99 is required for the removal of such defects.

Klaipėda city municipality photo/Klaipėda swimming pool construction

Court: Supervisor was not responsible

Despite this, the court decided that there is a basis for reducing the amount due from the contractor due to the fact that the construction technical supervisor appointed by the Municipality did not properly perform his duties, i.e. construction

after the technical supervisor UAB “Kelvista” found that the contractor was performing the work improperly, in violation of both legal acts and the requirements of the technical project, he had to inform the Municipality and the defendant about this. The technical supervisor was supposed to stop improperly executed works, indicate this in the construction work log, and not accept the completed works, but he did not do this, and this led to the fact that the contractor’s improper execution of works and the appearance of defects were not prevented. Since the inappropriate performance of the Municipality’s duty to perform technical supervision of the works was important for the occurrence of defects and the resulting losses, after assessing the significance of the non-fulfilment of this duty, the amount of the removal of deficiencies proven by the Municipality (EUR 741,207.99) was reduced by 25%. up to EUR 555,906.

the amount of EUR 555,906 owed to the municipality is offset by the guarantee of EUR 100,000 transferred by the Bank to the Municipality, which was issued against the defendant’s liability for the compensation of losses incurred during operation. Accordingly, after determining that the responsibility for part of the defects lies with the defendant, her counterclaim for damages of EUR 100,145 from the Municipality was rejected.

In this case, the Klaipėda District Court passed a separate ruling and decided to notify the Klaipėda District Prosecutor’s Office about the fact that the actions of the persons responsible for the supervision of the works performed in the Klaipėda Basin may contain signs of a criminal offense provided for in Article 229 of the Criminal Code or other articles of the Criminal Code.

The decision of the district court can be appealed to the Lithuanian Court of Appeal through the Klaipėda District Court within 30 days from the date of its adoption.