THE NEW MANAGER SHOULD NOT DELAY THE RECOVERY OF LOSSES

The debtor's manager appealed to the court to challenge the inaction of the previous manager, expressed in the failure to take measures to sell receivables from auctions, failure to submit executive documents to the newly appointed manager and recovery of losses (case No. A07-720/14).

The manager also appealed to the court with an application for recovery from the defendant of losses caused as a result of his unlawful inaction, expressed in an untimely appeal to the court with an application for subsidiary liability and recovery of losses from controlling persons.

The court of first instance refused to satisfy the claims, referring to the fact that the fact that the arbitration manager missed the deadline for the procedural action is not an unconditional basis for stating the fact that he caused losses. According to the court, the arguments that in the case of a timely application by the defendant to bring controlling persons to subsidiary liability, as well as to recover damages, the funds could be recovered, are not supported by sufficient evidence. The instance also proceeded from the applicant's omission of the limitation period for the claims, given that such a period began to flow from the moment the defendant untimely filed a claim against the former heads of the debtor.

The Court of Appeal did not agree with the conclusions of the first instance on the need for a complete refusal to satisfy the application. Canceling the court's ruling and partially satisfying the stated requirements, the court proceeded from the fact that the defendant, from the moment of his approval, taking into account reasonable time to receive information on the debtor, should have known about the existence of grounds for bringing controlling persons to subsidiary liability.

The cassation overturned the appeal ruling, leaving in force the ruling of the first instance and pointed to the following:

• The court of appeal, justifying its conclusions on the absence of grounds for applying the limitation period at the request of the defendant, concluded that the bankruptcy trustee had the right to bring a claim against the specified person only after the statement by the controlling person about the omission of the limitation period in the framework of a separate dispute on bringing to subsidiary liability. This conclusion is erroneous.

• From the wording of the Bankruptcy Law applicable to the resolution of a dispute on bringing to subsidiary liability, it followed that bankruptcy administrators had the right to initiate the resumption of proceedings on a dispute on bringing persons controlling the debtor to subsidiary liability in cases where proceedings on such disputes were mistakenly suspended by the court until all facts relevant to their resolution were established, with the exception of determining the amount of subsidiary liability.

• From the date of approval by its bankruptcy trustee (12/13/2018), the applicant, without waiting for the sale of the debtor's unsecured property in 2020, had to file a corresponding petition to the court so that the specified dispute on bringing the debtor's controlling persons to subsidiary liability was resolved on the merits in compliance with reasonable time limits of the proceedings, i.e. in 2019.

• Thus, the bankruptcy trustee should have become aware of the violation of the rights of the debtor (and the community of its creditors) already in 2019, when he should have addressed the claim under consideration to the defendant, and therefore, in the conditions of the statement in this dispute by the defendant and third parties on the application of the three-year limitation period for a claim submitted only On 12/14/2022, the decision to dismiss the claim was correct.