We didn't build anything. Pay up, please. Or how Malina's insolvency lawsuits are falling apart. When insolvency proceedings were opened against the debtor Energetický holding Malina a.s., many customers breathed a sigh of relief. Although the builder did not build them the promised photovoltaics or heat pump, and they received their money back before the insolvency proceedings started. But now the insolvency administrator, Insolvency Agency v.o.s., is demanding that they pay the money back.
In the area of incidental disputes, we are currently dealing with the situation of (former) clients of Energetický holding Malina a.s. (insolvency proceedings, file no. MSPH 79 INS 7166/2023). The insolvency administrator, Insolvenční agentura v.o.s., argues in counterclaims that Malina unlawfully returned the advances already paid to some clients, which was intended to favor these former clients over other creditors. The counterclaim therefore seeks the release of those advances to the estate.
In our view, the claim is not nearly as straightforward as it might seem, as we describe in more detail in our update.
Šrámková and partners, s.r.o. must have been busy at the beginning of May. On behalf of the insolvency administrator of the debtor Energetický holding Malina, they filed several dozen counterclaims (on the ineffectiveness of a legal act). With these actions, they are demanding that the clients of the photovoltaic power plants and heat pumps reimburse the advances for the works, even though they were never actually constructed.
At first glance, this may seem like a bizarre situation. However, according to the Insolvency Act, the insolvency administrator does indeed have the right (and obligation) to file a counterclaim if the payment of these sums may have benefited the creditor to the detriment of others. And the (dis)advantage of creditors may indeed have occurred. If the funds had been left at the disposal of Energetický holding Malina, it would have been possible to distribute them proportionately among the other creditors.
However, the present case is different. Malina Energy Holding has often fallen into arrears in the construction of buildings without ever starting to carry them out. In such a case, the repayment of the advance payment seemed obvious to the clients. Even if the action is on the face of it supported by the law, it must therefore be regarded as unfair.
Although the law is quite strictly in favor of counterclaims brought by the insolvency administrator, the claim for repayment of advances is not so clear-cut and several defenses are available. However, it will always depend on the circumstances of the particular case.
The first option is to argue that the advance payment for the work never became the property of Energetický holding Malina. If it did not even begin to carry out the work, it was not even partly entitled to remuneration. The defendants should therefore first assess whether Malina Energy Holding started construction or did not build anything at all. In such a situation, those defendants for whom Malina Energy Holding has not built anything will naturally be in a better position.
At the same time, the defendants may challenge the insolvency administrator's conclusion that Energetický holding Malina was insolvent at the time the advances were repaid. This option is more difficult, as it will be necessary to oppose the (for the time being) confidential forensic report Surveilligence commissioned for this case by the insolvency administrator.
The trustee also has the option of terminating the proceedings amicably and agreeing with the defendants to reduce the claim. The terms of the amicable settlement should consider the expected likelihood of success and the unnecessary costs incurred in the event of protracted litigation.
In any event, it may be advisable for defendants to contact an attorney to help them evaluate the success of the defense and to set the course of further proceedings. The situation is not easy for defendants, but with a properly conceived defense, there is a chance that some actions could be dismissed entirely.
If you are dealing with a similar issue, please do not hesitate to contact us. We will discuss your case with you free of charge and outline effective defense options.
We used a publicly available AI translation tool to translate this article from Czech to English. Please contact us if any of the above information is unclear to you.
