When collecting debts and expenses for conducting an audit, the Courts did not take into account the defendant's violation of the main principles of entrepreneurship – to conscientiously, reasonably and fairly comply with the requirements of the moral principles of society contained in the law, as well as the rules of business ethics.

SEC "B" filed a lawsuit against the individual entrepreneur "I" to recover debts and expenses for conducting an audit. On February 18, 2014, the Specialized Interdistrict Economic Court of Almaty dismissed the claim of SEC "B". The court's decision was left unchanged by the decisions of the appellate and cassation judicial boards. In the petition, the applicant stated that the judicial acts that had taken place were illegal and unfounded. According to the author of the petition, the courts did not take into account the essential circumstances relevant to the case, namely that the defendant's illegal actions are confirmed by factual data presented to the courts and contained in the materials of the civil case. He asked to cancel the judicial acts and make a new decision on the satisfaction of the stated claim in full. Having examined the case materials at the applicant's request, 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 and issued a new decision to satisfy the claim of SEC "B". In favor of SEC "B" with I. the debt for the delivered fish products in the amount of 1,231,000 tenge and the costs of conducting an audit in the amount of 200,000 tenge were collected due to the following.

Collection of debts and expenses for conducting an audit

The court found that the plaintiff supplied the defendant with fish products for sale in Almaty. Individual entrepreneur "I" (hereinafter referred to as the defendant), while renting a retail outlet from LLP "S" (hereinafter referred to as LLP), simultaneously worked at LLP as a household manager according to the employment contract concluded between them on August 5, 2011. The goods of the LLP were delivered to the defendant at the address: Almaty, F. Street, where the defendant conducted her business activities. The defendant did not make payment for the goods. The transfer of the goods and the amount of the debt are confirmed by invoices for the release of goods and powers of attorney, in which, at the request of the defendant, the signature of the warehouse manager of LLP – A is made. From the text of invoices No. 07 dated September 12, 2013, No. 08 dated August 4, 2013, No. 07 dated September 1, 2013, No. 07 dated August 23, 2013, it can be seen that the recipient of the goods is Minimarket Almaty, which is rented by the defendant. Using her official position as the managing director of the LLP, the defendant instructed the warehouse manager A. take the goods to the warehouse, sign the invoices, and place the goods at an unspecified minimarket facility. The defendant ordered the forwarder-seller B. and the warehouse manager A. to issue and sign invoices in order to place the goods in the warehouse of the LLP. The further sale of the goods was handled by the defendant herself. After the defendant's dismissal, her debts were discovered at her own request, for the repayment of which suppliers, including SEC "B", began to apply at the place of individual entrepreneurial activity. Currently, the defendant, having terminated the employment contract concluded with the LLP as a matter of urgency, ceasing his activities at the above address, evades repayment of the debt for the products supplied by the plaintiff. Meanwhile, according to the report on the verification of certain issues of SEC "B" in terms of financial and economic operations for the supply of fish products to the defendant dated January 23, 2014, it was established that a total of 1,895.7 kilograms of fish products were delivered to the defendant according to SEC "B" documents. The amount of unpaid delivered products amounted to 1,231,705 tenge. The results of the audit conducted by the auditor of Business Audit LLP, K., are confirmed by invoices, receipt orders and other accounting documents submitted to the court. The court has not established any grounds for doubting the objectivity of the auditor's opinion. According to Article 70 of the CPC, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Conclusions that the audit report submitted to the court does not meet the criteria of sufficiency, is erroneous and is not based on the factual circumstances of the case established by the court of first and subsequent instances. The audit results are supported by a reference to specific accounting documents.  Moreover, the court of first instance found in I.'s actions gross violations committed during the acceptance of the received goods. On this fact, the court issued a private ruling to the prosecutor of the city of Almaty for taking appropriate measures. This ruling has not been appealed by anyone and has not been canceled in accordance with the procedure established by law. I. violated the main principles of entrepreneurship provided for in paragraph 4 of Article 8 of the Civil Code in the exercise of her rights – it is conscientious, reasonable and fair to comply with the requirements contained in the law, the moral principles of society, as well as the rules of business ethics, which was not accepted by the courts into consideration. Incorrect determination of the range of circumstances relevant to the case, according to the requirements of subparagraph 1) of the first part of Article 364 of the CPC, was the basis for the cancellation of judicial acts. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases