How a claim for collection could deliver you €0,5m
In a collection summary judgment, William House XVIII B.V. demands an amount of EUR 500,000 from one of Van Omme & De Groot Participatiemaatschappij B.V. The latter is one of the two directors of William House XVIII B.V.
Claiming the current account receivable
It follows from the judgment that an amount of almost EUR 500,000 was booked in a current account ratio between the director and the company. This means that the director has a debt to the company and that this debt was included in the current account.
The company wanted to enforce its claim in order to be able to finance an expensive legal procedure 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 a collection summary judgment
In the event of a monetary claim in a summary judgment, 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 sufficient urgent interest.
During the collection summary judgment, 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 summary judgments.
Nevertheless, the preliminary relief judge went far to ultimately agree with the company by examining the establishment of the current account relationship.
The establishment of the current account ratio
Article 6:140 paragraph 2 of the Dutch Civil Code determines that the party maintaining the current account closes it annually and communicates the specified balance to the other party.
It follows from paragraph 3 that, if the other party does not protest against the notified balance within a reasonable time, the balance between the parties will be deemed established.
It follows from the judgment that Van Omme & De Groot Participatiemaatschappij B.V. has often been informed about the current account balance, but has not protested against it.
That is why the preliminary relief judge could assume that the balance was correct. The claim of EUR 500,000 was therefore ready for allocation.
Van Omme & De Groot Participatiemaatschappij B.V. was ordered in summary judgment to pay the balance in current account to William House XVIII B.V.”
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