The facts of the case

Pursuant to Clause 1.1 of Contract No 116 dated 9 July 2019 [concluded with the claimant, that is the State Unitary Enterprise operating under Correctional Colony No 45 of the Main Department for the Execution of Punishments of the Ministry of Internal Affairs], the respondent – acting as the ‘subcontractor’ – undertook to carry out capital construction and repair works of the administrative buildings of Investigation Detention Facility No 6 of the Namangan Regional Department of Internal Affairs, located in Uychi District, Namangan Region [‘Detention Facility No 6’].

The Supreme Court’s position

[The Collegium has cited Art 670 (4), (5), and (6) of the Uzbek Civil Code on the allocation of the risks of contractor discovered unexpected (additional) works.] In the cassation complaints, while acknowledging that works outside the design-estimate documentation had been performed, the claimant argued that it had not been notified of this in writing and that the respondent had therefore lost the right to demand payment for the excess works performed.

In the letter dated 8 January 2021 addressed to the Head [rahbar] of Detention Facility No 6, respondent stated that a calculation statement of expenses for additional construction and repair works performed outside the design-estimate project was being submitted for review and conclusion.

This letter was received, and by a return letter dated 8 January 2020 the employer, namely the Head of Detention Facility No 6, applied to Kelajak-S MChJ with a request to amend the design-estimate documentation, on the grounds that, instead of certain works indicated in the design-estimate documentation prepared by the respondent, [additional] works not provided for in the design-estimate documentation had been performed.

Taking these circumstances into account, the collegium concludes that the respondent did notify the employer during construction of the necessity to perform works not accounted for in the design-estimate documentation and the related additional works increasing the estimated construction cost, and that the value of the additional works performed was fully reflected in the specialist’s report of 31 August 2021. For this reason, the judicial collegium does not agree with the claimant’s above arguments.

In addition, the respondent performed works in a restricted area, namely a guarded detention facility, strictly in accordance with the employer’s instructions, with the employer’s supervision over the performance of the works.

[The Collegium cited Article 9 of the Civil Code in full.] The courts fully established the factual circumstances of the case and adopted their decisions in compliance with the norms of substantive and procedural law. On this basis, the judicial collegium finds it necessary to leave unchanged the judgment of the court of first instance dated 6 January 2022 and the decision of the appellate court dated 2 March 2022, and to dismiss the claimant’s cassation complaint.