In the case of partial dissolution of a limited liability company, it is for the party requesting the expert examination to advance the fees owed to the professional appointed to ascertain the assets due to the excluded partner.
In this hypothesis, the rule of paragraph 1 of article 603 of the 2015 Code of Civil Procedure cannot be applied, since the apportionment of the expenses requires an express and unanimous expression of agreement with the dissolution of the company.
With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied the appeal of an excluded partner who, after requesting an accounting expert examination because he disagreed with the values of the liquidation of the company, requested that the advance of the expert fees be apportioned equally between the parties.
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Partial dissolution of a company
During the partial dissolution action of the company, after the excluded partner’s disagreement regarding the values to be liquidated, the competent court ordered the ascertainment of his assets and appointed an expert to prepare the technical report, ordering the parties to deposit the amounts relating to the professional’s fees.
The Court of Justice of Goiás (TJGO) granted the interlocutory appeal of the remaining partner to determine that the party who did not agree with the calculations and requested the expert examination should bear the advance of the fees in full.
In the special appeal, the excluded partner alleged that, in this type of demand, each party must bear 50% of the costs of the expert fees, in accordance with the first paragraph of article 603 of the CPC/2015.
However, for the rapporteur of the appeal, Justice Nancy Andrighi, the rule to be applied to the case is that of article 95 of the CPC, according to which whoever requests the expert examination must bear the respective fees, unless it has been ordered ex officio by the judge or requested by both parties – cases in which the amount will be apportioned.
The Justice said that, in the case analyzed, it was clear that the expert examination was an express request of the excluded partner, who disagreed with the values to be received.
“In this way, once the criterion mentioned above is expressly established by law, and the occurrence, in the hypothesis, of the fact regulated by the provision in question – a request for accounting expert work by the appellant – is verified, the application of the normative consequence provided for is imposed”, explained the Justice in justifying that the advance of the fees must be made exclusively by the excluded partner.
Nancy Andrighi emphasized that the rule cited by the appellant – article 603 of the CPC – cannot be applied to the case, since it provides for the express and unanimous expression in favor of the corporate dissolution, which did not occur.
“Although the attempt at an amicable resolution was frustrated, it is clearly apparent that the court was inclined not to order the conduct of the expert examination, which was only ordered as a result of the belligerent behavior of the parties and the specific requests formulated by the appellant himself”, understood the
rapporteur.
Source: STJ
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