Declaring bankruptcy with the initiation of bankruptcy proceedings, approval of the liquidation balance sheet of the LLP and the final report of the bankruptcy trustee
The return of the application is unjustified if it was submitted by the authorized body within one month from the date of the establishment of the circumstance serving as the basis for the review. GU "N" (hereinafter referred to as GU) applied to the court for declaring LLP "T" (hereinafter referred to as LLP) bankrupt. By the decision of the specialized interdistrict economic Court of Zhambyl region dated August 6, 2012, the LLP was declared bankrupt at the request of the State Administration and bankruptcy proceedings were initiated. By the ruling of the same court dated December 7, 2012, the liquidation balance sheet of the LLP and the final report of the bankruptcy trustee of the LLP were approved. The Department appealed to the court with a request to cancel the ruling of December 7, 2012 and with a request to restore the time limit for appeal.
By the ruling of the specialized interdistrict Economic Court of Zhambyl region dated September 30, 2013, the above application was returned to the State Institution "Department of the Committee for Work with Insolvent Debtors of the Ministry of Finance of the Republic of Kazakhstan for Zhambyl region" in connection with missing the deadline. This judicial act was left unchanged by the ruling of the appellate and cassation judicial boards. In the petition, the applicant requested to cancel the judicial acts that had taken place in the case and to make a new decision on the satisfaction of the application, referring to violations of substantive and procedural law committed by the court. The Department considered that they applied in a timely manner within a month from the day when it became known about the existence of circumstances that entail a review of judicial acts on newly discovered circumstances. Having studied the case materials and discussed the arguments of the petition, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts issued in the case. The case was sent to the specialized interdistrict economic court of Zhambyl region for reconsideration from the stage of accepting an application to cancel the court ruling of December 7, 2012 due to newly discovered circumstances due to the following.
When returning the application due to newly discovered circumstances, the court in the ruling indicated the filing of the application after the expiration of the prescribed period, without specifying the reason for missing the deadline and their respect. The Appeal and cassation judicial boards agreed with the conclusions of the court of first instance. However, these conclusions do not correspond to the circumstances of the case and contradict the norms of current legislation. According to the first part of Article 404 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for reviewing decisions, rulings and resolutions on newly discovered circumstances are circumstances essential to the case that were not and could not have been known to the applicant. An application for review based on newly discovered circumstances in accordance with Article 406 of the CPC may be filed by persons who participated in the case within three months from the date of the establishment of the circumstances serving as the basis for the review. According to subparagraph 2) of the first part of Article 406-3 of the CPC, the judge returns to the applicant the application submitted by him for review of the judicial act on newly discovered circumstances if, when deciding whether to accept it for production, he finds that the application was submitted after the expiration of the prescribed period and there is no request for its restoration or the restoration of the missed deadline for filing the application is refused. According to the case file, the circumstances specified in the application for the cancellation of the court's ruling on newly discovered circumstances were established and became known based on the results of an audit by the Committee for Work with Insolvent Debtors of the Ministry of Finance of the Republic of Kazakhstan of the activities of the Department for Zhambyl region on August 5, 2013 and could not have been known before. During this audit, it was established that 14 vehicles had previously been registered and de-registered for the LLP, of which 13 were de-registered on September 5, 2009, that is, within three years prior to the initiation of bankruptcy proceedings.
According to the purchase and sale agreement, these vehicles were sold by the head of S.H.I.E.L.D. LLP. to the buyer F., residing according to the registration data of individuals at the same address as S. The funds from this transaction were not credited to the LLP's settlement account, and information about their transfer to pay off wage arrears was not confirmed. The final report dated December 4, 2012 lacks an analysis of transactions for the alienation of 13 vehicles and the actual allocation of the proceeds to pay off wage arrears. These circumstances were not known to the applicant and are essential to the case, since according to the second part of Article 86 of the Law of the Republic of Kazakhstan "On Bankruptcy", a bankrupt does not receive debt relief if he hid or transferred part of his property to another person for the purpose of concealment within three years prior to filing an application for bankruptcy. The arguments of the local courts that they were known at the time of the review are unfounded. In the contested court ruling of December 7, 2012, the grounds for approving the liquidation balance sheet and the final report of the bankruptcy trustee indicate the fact that they have been reviewed and approved by the creditors' committee. However, it follows from the minutes of the creditors' committee meeting that the issue of approving the final report of the bankruptcy trustee and sending it to the authorized body for approval was not considered – the protocol was signed by an unknown person. The analysis of these transactions was not carried out by anyone, respectively, the specified circumstances could not be established at that time. In the circumstances described, the return of the application is unjustified, since it was submitted by the authorized body within one month from the date of the establishment of the circumstance serving as the basis for the review. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan considered that during the consideration of this case by the courts, the norms of substantive and procedural law were incorrectly applied, and an error was made in the legal assessment of the evidence obtained in the case.
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