How a claim for collection could deliver you €0,5m
In a preliminary relief action for collection, William House XVIII B.V. demanded an amount of EUR 500,000 from Van Omme & De Groot Participatiemaatschappij B.V. The latter is one of the two directors of William House XVIII B.V.
This recent ruling is remarkable, because a monetary claim is not often awarded in preliminary relief proceedings. Corporate lawyer Dirk de Waard explains.
Claiming the current account receivable
It follows from the judgment that an amount of almost EUR 500,000 was recorded in a current account relationship between the director and the company. This means that the director had a debt to the company and that this debt was included in the current account.
The company wanted to enforce its claim so that it could finance an expensive legal action against a contractor.
The director resisted and refused to transfer the amount to the company, stating that:
A) the amount was incorrect; and
B) the claim was not due.
Three criteria that are important during preliminary relief cases for collection
In the event of a monetary claim in preliminary relief proceedings, each preliminary relief judge will act with restraint.
Only if the following three requirements have been met will the preliminary relief judge grant a monetary claim:
there must be an urgent interest;
the claim must be highly plausible and established;
the preliminary relief judge assesses the restitution risk, i.e. the risk that the creditor will no longer be able to repay the claim on appeal.
There was sufficient urgent interest and no risk of restitution
Due to the need to initiate proceedings against the contractor, the preliminary relief judge decided that there was a sufficiently urgent interest.
During the preliminary relief proceedings for collection, a party affiliated with the company stated that it was a guarantor. For this reason, the fear of restitution risk had also been removed.
Two of the three requirements were thus met.
The claim also appeared to be sufficiently plausible
Normally, the preliminary relief judge will exercise restraint during a collection procedure, because there is no time for evidence in preliminary relief proceedings.
Nevertheless, the preliminary relief judge went a long way towards ultimately agreeing with the company by examining the creation of the current account relationship.
The creation of the current account relationship
Article 6:140(2) of the Dutch Civil Code determines that the party maintaining the current account closes it annually and communicates the detailed balance to the other party.
It follows from paragraph 3 of that Article that, if the other party does not protest against the notified balance within a reasonable time, the balance will be deemed to be established between the parties.
The judgment informs us that Van Omme & De Groot Participatiemaatschappij B.V. had often been notified about the current account balance, but had not protested against it.
That is why the preliminary relief judge could assume that the balance was correct. The claim of EUR 500,000 could therefore be awarded.
Van Omme & De Groot Participatiemaatschappij B.V. was therefore ordered in a preliminary relief judgment to pay the balance in the current account to William House XVIII B.V.”
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