The Supreme Court allowed the creditors to be held liable.
Another round of the well-known bankruptcy case of the Vyborg Timber Corporation (VLK) has ended. The Supreme Court did not put an end to it, but explained the application of a number of norms in practice and pointed out to lower authorities their mistakes. Therefore, a judicial act adopted by the Supreme Court of the Russian Federation can become a landmark in the practice of law enforcement of bankruptcy legislation in the Russian Federation.
The essence of the dispute is that the tax inspectorate, with the support of a number of creditors with debts that did not allow them to influence the decision of the general meeting, demanded to recover from three other creditors and the bankruptcy trustee the losses caused to them. According to the plaintiffs, these losses became possible because the majority creditors decided to continue the company's activities at the stage of bankruptcy proceedings on the principle of processing (provision of services for the processing of raw materials), which led to significant expenses for the debtor and the emergence of profit for the defendants.
The courts of first and second instances refused to prosecute the defendants, as they did not consider them to be controlling persons. The Court of Cassation satisfied the claims of the plaintiffs only in respect of the bankruptcy trustee. The courts also proceeded from the fact that the fault of creditors and the manager in causing losses was not proven, since processing was necessary, especially dangerous objects were on the debtor's balance sheet, their conservation would entail significant costs. In addition, VLK was the only resource-supplying enterprise in the village of Sovetsky, and the stoppage of its activities could lead to serious social consequences for the settlement (stopping the supply of communal resources).
The judgment states the following:
- The Supreme Court allowed the recovery of damages resulting from damage to the bankruptcy estate from creditors. Moreover, jointly and severally, if they acted jointly, while the presentation of evidence of the existence of corporate ties between creditors and the debtor is not mandatory. The Supreme Court of the Russian Federation explained that in the course of the bankruptcy process, damage to the debtor can be caused by any persons, and not just managers. Losses are recovered in this case according to the norms of the Civil Code of the Russian Federation on causing harm;
- The Supreme Court of the Russian Federation recognized that even after the appointment of the last bankruptcy procedure, the bankruptcy trustee should continue to take care of the performance of the company, if the creditors decided to continue it. The manager in any case must act in good faith, avoid negligence and indifference;
- if there is evidence of harm caused by the joint actions of the defendants, they must answer jointly and severally. At the same time, the court noted that it may be difficult for the plaintiff to provide direct evidence of the existence of concerted actions, since intentions to cause harm are usually not advertised. Therefore, in such a situation, indirect evidence, for example, the presence of affiliation, will be sufficient.
The Supreme Court of the Russian Federation also noted that the lower courts did not examine in detail the evidence of the expediency of using the processing scheme instead of the full production cycle, the amount of profit received as a result of its application by majority creditors. To justify the use of processing, the manager referred to the insufficiency of the company's resources to purchase equipment and raw materials.
The case has been remanded for retrial. The possibility of holding creditors liable for the debtor's losses was announced by the Supreme Court of the Russian Federation for the first time. The Supreme Court did not comment on the social significance of VLK activities.
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