Company disappeared, debt left: will director account for damages caused to shareholder? Case study, case №А56-59760/2014

10 august 2018

Key matter in dispute: Company caused damages to its former shareholder, and later on was liquidated. Is it possible to recover such damages from director if his guilt is proved?

BACKGROUND

In 2011 Vladimir Posnov withdrew from Anelya OOO and should have received the value of his 33% share. But he first was in a litigation concerning ownership thereto, and then found out that the company did not have funds to cover the debt: during that litigation it sold the only asset of RUR 15 million which amount it provided as a loan to a third party. After that the company ‘fell’ in bankruptcy and was liquidated. Posnov decided to recover RUR 6.5 million in damages from Anelya’s director – Sergey Berezhkov.

INITIAL RULINGS BY COURTS OF TWO LEVELS

Courts denied the claim. They said that damages may be recovered from the company as under the law it shall pay out the actual share value. The claimant failed to prove that the main goal of the loan was escaping obligations. Causation link between director’s actions and damages was also not proved.

RULING BY THE COURT OF CASSATION

The court stated that damages may be recovered from the director if his guilt is proved. After Anelya sold the asset and got RUR 15 million, its director could have reserved a part of that amount for payment to Posnov. Instead, all the funds were allocated to the loan which was never repaid and which lead to the company's bankruptcy. Therefore, shareholder did not receive the value of his share at the fault of the director. And this means that the latter shall compensate the damages.

COMMENT BY S&K VERTICAL

Despite the fact that the claim is not an indirect one, since damages were recovered from director not in favor of the company but in favor of former shareholder, it is exactly this which is interesting in the case. Substantiating its position, the court referred to Article 53 of the Civil Code (before amendments) and Article 44 of the Law on limited liability companies which govern director's liability as against the company, and also provide for the shareholder’s right to file an indirect claim on recovery of damages. The court, evidently, took factual side of the case in consideration: the company was liquidated, while its shareholder remained with no other way to protect his rights than to recover amounts from the bad faith director.

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