ElitExpert continues to cover the high-profile case No. 916/2951/23 dated July 12.07.2023, XNUMX, on the claim of Dinare LLC, which is being considered by the Odessa Commercial Court.
After a careful study of the documents submitted by the parties, there were fears that the case may not be considered objectively enough, which is indicated by numerous facts, which we will dwell on in detail in this material.
PLOT OF THE CASE
The plaintiff's position: Serhiy Durach, who calls himself the director of "Dinare" LLC, filed a lawsuit with the Odesa Commercial Court to claim ownership of real estate worth UAH 42 million Conducts business judge Svitlana Zhelezna.
In 2017, Dinare LLC sold the corporate rights of Galatea to TZI, which owns the famous Odessa hotel "Zirka". Durach claims that this agreement was not paid for, so the rights must be returned to the ownership of "Dinare" LLC.
Fact 1: According to the documents, only Serhiy Durach owns 0,5% of "Dinare" shares, a little more than 1% belonged to the late businessman Vadym Chorny, and the main part 98% - to the American company "ANB INTERNATIONAL CORPORATION".
Fact 2: When filing a lawsuit, Serhiy Durach paid the court fee 600 thousand hryvnias. The amount is significant, as the total value of the property for which he is being sued is more than 40 million hryvnias.
It is important that these 600 were not paid from the Dinare LLC account, as the law clearly requires, but paid by Durach in cash.
Fact 3: According to the charter of "Dinare" LLC, the director of the company has the right to sign contracts, accept obligations, etc. in the amount of which does not exceed 100 thousand UAH. Expenses over 100 must be carried out and signed by the director only on the basis of the decision of the general meeting. It turned out that on this occasion the general meeting were not conducted.
However, for some reason, Judge Zhelezna did not consider it necessary to draw attention to this violation of the Law of Ukraine "On Court Fees".
The plaintiff's position: Durach told the court that he is the owner of the American company "ANB INTERNATIONAL CORPORATION" and provided documents from some Latvian firm that confirm this. He also brought to the court a document stating that he is also the director of "ANB INTERNATIONAL CORPORATION".
Fact 4: Durach was indeed the director of ANB INTERNATIONAL CORPORATION, but he was appointed to this position only in 2022 and after a few months by the decision of the general meeting of him removed from office. Today, the director of the corporation is a completely different person.
The plaintiff's position: Durach provided the court with a certificate stating that he owns all the shares of "ANB INTERNATIONAL CORPORATION".
Fact 5: This certificate is simply printed on a sheet of A4 paper and does not conform to the established form of company certificates printed in a printer on a special letterhead with watermarks. In addition, the corporation has a seal that certifies all certificates. This is not in Durach's documents.
Fact 6: On November 7, 2023, representatives of the American company held a general meeting at which they decided to change the director of Dinare LLC. The minutes of the meeting were certified by a notary, and the next day, November 8, the state registrar of the Legal Department of the Odesa City Council made appropriate changes to the State Register.
Fact 7: The further development of events took an unexpected turn - the state registrar canceled its own registration actions, which Serhii Durach did not hesitate to take advantage of. November 24, 2023 he, being again in the register as a director of the Dinare company, turned to the Poltava notary V. A. Moskivets, who registered the contract for the sale of ANB's share in the Dinare LLC to a certain citizen of Suslov — possibly a fake person.
Fact 8: The representatives of the American company stated that this was the "raider seizure" of ANB's share in Dinare LLC and the "raider seizure" of Dinare LLC itself, as the state registrar and the Poltava notary had no legal rights to perform the specified registration actions. Therefore, the company filed a complaint with the Ministry of Justice to cancel the actions of the Muscovite notary public.
ElitExpert asked the notary to clarify this situation, but officially received rejection of your request:
The motions are denied
December 24 2023 year Serhii Durach provided the court with the already mentioned certificate of alleged ownership of all ANB shares. The company immediately protested this, claiming that this certificate is fake. However, judge Svitlana Zhelezna did not listen to the company's arguments, did not allow time to gather evidence, and announced that the preparatory proceedings are over and the consideration of the claim on the merits begins, no party has the right to attach additional documents to the case and present its arguments.
In general, Judge Zhelezna rejected several motions at once that would have contributed to the consideration of the case. For example, the company "ANB" submitted a statement of desire to enter the case as a third party, but the court rejected this request.
NGO "CZI" filed a motion to suspend the consideration of the lawsuit pending consideration by the Ministry of Justice of the complaint against the registration actions of registrar Yu. Chernenko and notary V. Moskivets. The judge rejected this request as well.
In addition, the NGO "CZI" submitted several requests to add additional documents to the case file and to send requests for receiving documents. And these petitions were also refused.
This behavior of the judge, from the outside, seems completely biased: after all all arguments, arguments and documents submitted by the plaintiff Serhii Durach were taken into account by the court, and the defendant was denied the same right.
PRINCIPLE OF (IN)OBJECTIVITY
The fact that, despite the system of automatic distribution of proceedings between judges, adds even more wonder to this case, all four lawsuits in which Serhiy Viktorovich Durach appears in the Odesa Commercial Court are being considered by one judge - Zhelezna Svitlana Petrivna.
These are the following cases:
- according to the facts of the death of 9 people in 2019 at the Tokyo Star Hotel, where he was a director;
- No. 12021162510000384 according to the facts of his appointment as the director of the NGO "CZI";
- No. 1202116250001029 on facts of theft of money and documents from the office of the NGO "CZI";
- No. 42021170000000126 on the facts of seizure of the Business Center "Kyiv" and the Trade Center "Gretska".
To clarify this issue, ElitExpert made a formal request to the Commercial Court, which, however, insists that all claims go through the automated distribution of court cases and are assigned to random judges due to their workload.
The next court session is scheduled for February 2, 2024, so the continuation follows...
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