Additional remuneration may be paid to the bankruptcy trustee in the amount of the total amount aimed at satisfying the claims of all creditors.
By the decision of the specialized interdistrict economic Court of Kostanay region dated December 10, 2010, the application of the State Institution "Tax Administration for the city of Rudny" for declaring LLP "N" (hereinafter – LLP) bankrupt was satisfied, bankruptcy proceedings were initiated. State Institution "Department of the Committee for Work with Insolvent Debtors of the Ministry of Finance of the Republic of Kazakhstan in Kostanay region" (hereinafter – the Department) A bankruptcy trustee has been appointed several times in this case. By the latest order No. 489 dated September 10, 2012, N. was appointed bankruptcy trustee. On February 27, 2013, the bankruptcy trustee applied to the Department for consideration and approval of the final report. In bankruptcy proceedings, the claims of the 2nd and partially 3rd line of creditors were satisfied for 17,186,400 tenge, administrative expenses – 3,495,500 tenge, including additional remuneration – 422,400 tenge. The claims of queues 4 and 5, consisting of 7 creditors, remained outstanding. Having disagreed with the final report, the Department refused to approve it and filed a lawsuit against the bankruptcy trustee to force him to return additional remuneration in the amount of 422,400 tenge to the bankruptcy estate. The claim is motivated by the fact that if there are unsatisfied claims of creditors of any turn, additional remuneration cannot be paid to the bankruptcy trustee.
The Department's claim was satisfied by the decision of the specialized interdistrict Economic Court of Kostanay region dated May 28, 2013. The bankruptcy trustee N. is charged with the obligation to return 422,400 tenge to the bankruptcy estate. By the ruling and decision of the Appellate judicial board of the Kostanay Regional Court dated August 1, 2013, which was left unchanged by the decision of the Cassation judicial board of the Kostanay Regional Court dated October 16, 2013, the decision of the court of first instance was overturned with a new decision rejecting the claim. In the protest, the Prosecutor General asked to cancel the decisions of the courts of appeal and cassation instances, while upholding the decision of the court of first instance, referring to significant violations of substantive law committed by the courts.
Additional remuneration may be paid to the bankruptcy trustee in the amount of the total amount aimed at satisfying the claims of all creditors.
After examining the materials of the civil case, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the judicial acts issued in the case, upholding the decision of the specialized interdistrict Economic Court of Kostanay region dated May 28, 2013 on the following grounds. By overturning the decision of the court of first instance and rejecting the claim, the courts of appeal and cassation indicated that the right to receive remuneration in the form of additional payments in the amount determined by the creditors' committee is provided for in paragraph 2 of Article 69 of the Law "On Bankruptcy" (hereinafter – the Law). These conclusions of the courts of appeal and cassation instances do not correspond to the actual circumstances of the case and contradict the norms of substantive law. Paragraph 2 of article 69 of the Law stipulates that additional payments to the bankruptcy trustee are made based on the results of their activities and are determined by the creditors' committee in the amount of no more than 7% of the funds allocated to satisfy creditors' claims, minus administrative expenses. According to paragraph 17 of article 1 of the Law, bankruptcy proceedings are a procedure carried out in order to satisfy creditors' claims. Thus, the result of the bankruptcy trustee's activity is the satisfaction of creditors' claims. At the same time, the bankruptcy trustee does not have the right to take precedence over the creditors of the corresponding queue to receive additional remuneration from the funds to be paid to these creditors.
By virtue of Article 6 of the Civil Code (hereinafter referred to as the Civil Code), the expression "from funds aimed at satisfying creditors' claims" used by the legislator in paragraph 2 of Article 69 of the Law means that additional remuneration may be paid to the bankruptcy trustee in the amount of the total amount aimed at satisfying the claims of all creditors. This circumstance is consistent with the principles of civil legislation provided for in Article 8 of the Civil Code, the violation of which is the basis for refusing to protect the right.It follows from the final report that during the bankruptcy proceedings, the claims of 7 creditors, including the Tax Administration for the city of Rudny, were not satisfied. Consequently, the bankruptcy trustee N. is not entitled to claim additional remuneration. The courts, in support of the legality of the bankruptcy trustee's claims, indicated that the right to receive additional payments was provided for by an agreement concluded with the creditors' committee. Indeed, an agreement for conducting bankruptcy proceedings dated December 14, 2012 was concluded between the creditors' committee of LLP represented by U. and the bankruptcy trustee N. Clause 2.1.2 of the agreement provides for the right of N. to receive current and additional payments from the bankruptcy estate of the liquidated enterprise before settlement with creditors. However, when examining the terms of the agreement, the courts did not take into account the provisions of Article 392 of the Civil Code, according to which, when interpreting the terms of the agreement, one should proceed from the literal meaning of the words and expressions contained therein. It follows from the content of clause 2.3.7 of the agreement that the amount of additional payments to the bankruptcy trustee is calculated based on the results of its activities in the amount of 7% of the funds allocated to satisfy creditors' claims, minus administrative expenses.
This paragraph is consistent with the provisions of Articles 382 and 383 of the Civil Code, paragraph 2 of Article 69 of the Law and confirms the above conclusion that if there are unsatisfied claims of creditors of any turn, additional remuneration cannot be paid to the bankruptcy trustee. In addition, the court's conclusion that there is no need to return the amount of 422,400 tenge to the bankruptcy estate, since the bankruptcy proceedings against the bankrupt LLP have expired, does not correspond to the actual circumstances of the case. It was reliably established in court and not disputed by the parties that the final report of the bankruptcy trustee N. was not approved. By Department Order No. 379 dated July 12, 2013, N. was removed from managing the property and affairs of the LLP. By the same order, a new bankruptcy trustee was appointed. At the time of consideration of the case in the court of first instance, the term of bankruptcy proceedings was extended for another year (by Department order No. 473 dated August 28, 2013 – until March 13, 2014).
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