1. The subject of the dispute is the obligation of PrJSC “NEC “Ukrenergo” to exclude a certain amount of electricity from the acts of services rendered in favor of JSC “DTEK Zakhidenergo”.
2. The court of cassation overturned the appellate court’s ruling, upholding the decision of the court of first instance to dismiss the claim without consideration, since the plaintiff (JSC “DTEK Zakhidenergo”) failed to appear at the preparatory court hearings three times, did not notify the court of the reasons for non-appearance, and did not file a motion to have the case heard in his absence, which is a violation of the Commercial Procedure Code of Ukraine. The court emphasized that the appellate court did not take into account the imperative nature of the CPC norms regarding the court’s obligation to dismiss the claim without consideration under such circumstances. Also, the court of cassation pointed out the erroneous reference of the appellate court to the practice of the Supreme Court, which was refuted by later decisions of the joint chamber of the Commercial Cassation Court as part of the Supreme Court. The court of cassation rejected the plaintiff’s arguments regarding ensuring the appearance of a representative in separate hearings, since this was not properly recorded and did not exempt from the obligation to notify the court of the reasons for non-appearance.
3. The Supreme Court overturned the appellate court’s ruling and upheld the first instance court’s order to dismiss the claim without consideration.
**** The court indicated that the appellate court mistakenly took into account the legal position of the Supreme Court, from which the joint chamber of the Commercial Cassation Court as part of the Supreme Court had departed.
