Representation of a limited liability company creditor in a case for payment against the members of the company board

The Law Firm represented a Client (a creditor of a limited liability company) in a case for the payment of over 20 million PLN of remittance from the board of the company.

The case involved a limited liability company operating in the development industry which was overdue on multimillion payments to its creditors. Said payments were failed to be executed from the company assets. Despite the fact that failure to pay said dues in time was a rationale for pronouncing the company insolvent, the members of the board did not file a bankruptcy application to the court. In the court case for the payment, based on the article 299 of the Code of Commercial Companies, the creditor of the company requested an award of unenforced from the company’s assets amounts from the former members of the company board. The defendants defending themselves from responsibility by trying to prove that there was no fault in not filing for bankruptcy and that there was no loss for the plaintiff. The defendants tried to prove that they had no knowledge of the necessity of filing for bankruptcy (that is the timely payment of dues) by claiming that all of the bookkeeping was handled by a third party company. Justifying the lack of damage, however, they relied on the so-called private expert opinion, given that the court experts called in successively – due to deficiencies in the company’s records – were unable to give an opinion that would speak in favour of the defendants.

The argumentation of Law Firm’s lawyers showed among other things that outsourcing the bookkeeping to another company does not absolve the members of the board from the duty of being aware of the state of finances of the company. The argumentation concerning the lack of definitive opinion of the experts called by the court proved that the objective impossibility of execution of the evidence burdens the members of the board in accordance with article 299 of the Code of Commercial Companies which disadvantages the members of the board. The evidence from the opinion of the experts called by the court cannot be replaced with a private opinion.

During the trial, thanks to the quick actions of the Law Firm’s lawyers, security proceeding was initiated, during which a major part of the of the claimed assets was secured.

The argumentation of the Law Firm’s lawyers was accepted by the courts of both instances and the claim of the Client was accepted. The Supreme Court dismissed the cassation complaint. Thanks to the cooperation with the Law Firm the Client not only received a court order in his favour, but the monetary amount was actually executed. Including accrued interest, the Client received an amount of about 50 million PLN.