ECLI: NL: GHSHE: 2008: BF0351

against:

on the appeal of the judgments of 8 September 2004 and 26 October 2005 between the appellant – [appellant] – as defendant and defendant – the bankruptcy trustee – as claimant.

1. The proceedings at first instance (Case No 122466 / HA ZA 03-1236)

For the proceedings at first instance the court refers to the aforementioned judgments.

2. The appeal proceedings

2.1. In a statement of objections, [appellant] put forward four complaints and sought the annulment of the judgments of which appeal and, in short, the rejection of the claims of the liquidator.

2.2. In response, the trustee in bankruptcy contested the complaints, submitting fifteen productions.

2.3. [appellant] has taken another note on this to which the bankruptcy trustee responded by answering deed. Although [appellant] requested in his deed to make a plea, he subsequently did not perform the actions required by the Role Rules for Determining a Plea, but – like the curator – submitted his case file for judgment. In the case file of [appellant], apart from the preliminary summons in the first instance, all conclusions and deeds taken by the parties before the interlocutory judgment of 8 September 2004 are missing. The Court of Appeal has taken cognizance of those documents from the bankruptcy trustee’s file, insofar as these documents were present in the bankruptcy proceedings file. The bankruptcy trustee’s file does not contain his further deed of 21 April 2004 with production 32.

3. The grounds of the appeal

For the exact content of the complaints, the Court of Appeal refers to the statement of complaints.

4. The assessment

4.1.3. By the interlocutory judgment of 8 September 2004, (a multiple chamber of) the court held [appellant] liable for the entire deficit in the bankruptcy and held any further decision pending a further statement of the deficit by the trustee after the verification meeting would have proved.

4.1.4. In the final judgment of 26 October 2005, the court subsequently, in summary, granted the declaration of rights demanded by the liquidator and ordered [appellant] to pay an advance of € 1,027,540.63 in respect of the deficit and to payment of the remaining deficit after that payment, to be specified further on condition and settled in accordance with the law. The aforementioned judgment was delivered by the single chamber of the court, namely one of the judges who was part of the multiple chamber that delivered the interlocutory judgment of 8 September 2004.

4.1.5. [appellant] appealed against the interlocutory judgment of 8 September 2004 and the final judgment of 26 October 2005.

4.2.1. [appellant] submitted as its first complaint that the final judgment of 26 October 2005 is void, or at least must be set aside, because this judgment was handed down by a single chamber of the court, while the trial of the case was referred to a multiple chamber by which room the interlocutory judgment of 8 September 2004 was delivered. According to [appellant], a referral of the case back to a single chamber has not been proven and such a referral is also not legally permissible.

4.2.2. The court of appeal rejects this complaint. The division of cases is in the first instance a matter for the judge. He can, without having to state the reasons for this, refer a case to a multiple chamber for various reasons (the weight of the case but also for the training of starting judges). If a case has been referred to a multiple chamber because of the weight of the case, this does not necessarily mean that, after further proceedings, after an interlocutory judgment, that case would not lend itself to trial by a single chamber. In art. 15 paragraph 5 Rv (which provision entered into force on 15 October 2005), this possibility is also explicitly provided for. In view of the fact that in the present case the legal question between the parties had already been ruled in the interlocutory judgment of 8 September 2004 and the final decision in the case was only held pending the outcome of the verification meeting, the Court considers it sufficiently plausible that the allocation of the case after the interlocutory judgment was given to a single chamber with the consent of the multiple chamber. The fact that the single chamber which delivered the final judgment consisted of a judge who was also part of the multiple chamber through which the interlocutory judgment was delivered also contributes to that plausibility.

4.3.2. In complaint 2, [appellant] claims that the bankruptcy of De Huizenbeurs was not, to his mind, caused to a significant extent by the failure to deposit the annual reports for the years 1998, 1999 and 2000. [appellant] stated that the bankruptcy was caused by factors over which he had no influence as a director. According to him, the main cause of the bankruptcy is the considerable delay in a construction project involving 640 homes in […].

4.3.3. Insofar as [appellant] in complaint 2 assumes that the court has ruled that (only) the failure to deposit annual documents for the years 1998, 1999 and 2000 would have been the main cause of the bankruptcy, complaint 2 is based on an incorrect interpretation of the judgment of 8 September 2004. The court understands the judgment of the court in such a way that the court on the basis of the provisions of art. 2: 248 paragraph 2 jo. paragraph 6 of the Dutch Civil Code: for the three years preceding the bankruptcy a. on the grounds that the executive board has not complied with its obligations under art. 2: 394 of the Dutch Civil Code if it is certain that the board has also performed its duties improperly for the rest, and b. it must therefore be assumed that improper management (in its entirety and not only consisting of not depositing annual reports) was an important cause of the bankruptcy. It is then up to the director (s) to refute that suspicion and to make it plausible that the bankruptcy is not largely due to improper management but to one or more other causes. With this judgment, the District Court assumed that the provisions of art. 2: 248 paragraph 2 jo. paragraph 6 of the Dutch Civil Code. With this judgment, the District Court assumed that the provisions of art. 2: 248 paragraph 2 jo. paragraph 6 of the Dutch Civil Code. With this judgment, the District Court assumed that the provisions of art. 2: 248 paragraph 2 jo. paragraph 6 of the Dutch Civil Code.

4.3.4. The Court of Appeal will now consider whether what [appellant] in complaint 2 regarding the cause of the bankruptcy is sufficient is enough, if necessary after proof of the facts set by him in that connection, to comply with the provisions of art. 2: 248 paragraph 2 of the Dutch Civil Code to refute suspicions regarding the main cause of the bankruptcy. In answering that question, the Court of Appeal will take into account all the circumstances of the case, including the fact that the trustee has not invoked exclusively for the improper performance of his duties by the board the board’s failure to fulfill its obligations (art. 2:10 and) art. 2: 394 of the Dutch Civil Code but has also referred to a number of concrete other acts of [appellant] that can be labeled as a manifestly improper performance of his duties as director.

4.3.5. With regard to the main cause of the bankruptcy he stated in complaint 2 – the considerable delay in a construction project involving 640 homes in […] – [appellant] states that De Huizenbeurs had already mediated in that project in 1994 and had in view of the intended construction in 1996, hired staff (the appellant refers to 23 of the grievances as to the hiring of four staff members for the project in 1998 and 1999, court of appeal), rented premises and arranged financing (an investment of approximately € 650,000.00, which according to [appellant] is 90% financed by himself). Because the construction work on this project only started in 2006, according to [appellant], De Huizenbeursfaced with a non-performing overhead, for which there were no significant benefits. [appellant] states that De Huizenbeurs could reasonably expect sales of approximately 4.9 million euros from sales commissions and insurance premiums and that, when it became clear in 1999/2000 that the project did not start that year, the rent for the property also took and dismissed the staff except two. [appellant] has added that the delay in the construction of the project was caused by external factors (years of objections procedures) over which he was unable to exercise influence.

4.3.6. Against this argument, the bankruptcy trustee has argued that the project mentioned by [appellant] is completely unknown to him, that he was never informed of this in the bankruptcy and that the involvement of De Huizenbeurs in this project is not in line with the statement of [appellant ] in his bankruptcy hearing “that on the date of the bankruptcy there were no more projects and no orders running”. The bankruptcy trustee also noted that the statement of [appellant] about a non-performing overhead for which there were no notable benefits was inconsistent with the statement of [appellant] in the bankruptcy hearing that 1996, 1997 and 1998 for De Huizenbeursthe better years were and it then went downhill. The bankruptcy trustee has furthermore disputed that the rent of a new space on the street was related to the project […] and that staff would have been hired specifically for that project. He has also substantiated disputed the costs set by [appellant] for the project. Finally, the bankruptcy trustee disputed that, if there had already been a project, the failure of that project would have been the main cause of the bankruptcy.

4.3.7. The Court of Appeal stated first and foremost that, according to the trustee’s right, some claim from De Huizenbeursin connection with the project submitted by [appellant] is at odds with the statement by [appellant] at his bankruptcy hearing on 11 July 2002 (prod. 5 concl.v.eis, also prod. 1 by mem.v.antw.) no projects were running on the date of the bankruptcy (26 March 2006). Furthermore, [appellant] has not provided sufficient concrete facts and circumstances that, if proven, can support his claim that considerable costs were incurred and investments were made (and were needed) for that project in 1998. Thus, in the opinion of the Court of Appeal, [appellant] has insufficiently substantiated its facts and circumstances with its defense that delay in the realization of the Hoogerheide project was the main cause of the bankruptcy of De Huizenbeurs .

4.3.8. In addition, the – insufficiently substantiated – appeal by [appellant] to “a delayed realization of the Hoogerheide project” does not affect the fact that the trustee has made further evidences of a manifestly improper performance of duties by the board and the causes of the incident The bankruptcy of De Huizenbeurs by [appellant] has not been disputed to a large extent, or at least insufficiently substantiated.

The foregoing, if account is taken of the corresponding payments to De Huizenbeurs by [appellant] in private in the aforementioned period of an amount of NLG 176,500, amounts to an amount of (at least) NLG 1,496 withdrawn on balance from De Huizenbeurs . 406.25 (€ 679,039.55). The aforementioned accusations have already been discussed at the hearing on 11 July 2002 of [appellant], [his life partner] and [appellant] ’s daughter […].

4.3.10. [appellant] did not contest the withdrawal of the cash amounts mentioned by the liquidator. In the bankruptcy hearing, [appellant] acknowledged that the amounts involved were large annually and that none of them could be found in a cash administration (such an administration was not conducted at De Huizenbeurs ). In the present proceedings, [appellant] stated that the amounts withdrawn in cash from the De Huizenbeurs bank accounts , as well as in private for De Huizenbeursamounts advanced in his current account were noted and settled. After the bankruptcy trustee disputed that statement and the presentation by the bankruptcy trustee in the reply of the ledger cards for the period 1997 to 2000 (in which the current account of [appellant] was recorded as ledger account 1320), appellant] does not, however, further substantiate that statement.

4.3.12. The transfer of the amount still to be paid from the purchase price for the Boskoop location of f 325,599.89 to a private account of [appellant] has also been acknowledged by [appellant]. [appellant] states that this amount would then have again benefited De Huizenbeurs , but he has not further substantiated that proposition with concrete facts.

4.3.13. Finally, as far as the [appellant] and / or his life partner’s […] partner are concerned in privately traded-in cars, it is also true that [appellant’s] claim of the bankruptcy trustee is traded in that cars owned by De Huizenbeurs belonged at least for the most part to De Huizenbeurs , which did not contest, or did not substantiate sufficiently. [appellant] states that he would have taken over those cars from De Huizenbeurs , but there is no substantiation for that statement.

4.3.14. In view of the above considerations, the appellant has, in the opinion of the court of appeal, the proposition of the trustee that [appellant] has withdrawn a total of at least f 1,496,406.25 (€ 679,039,550) from De Huizenbeurs for the most part substantiated disputed. Even if it is assumed that the trip in 1997, amounting to NLG 16,543.40, would have involved a trip on behalf of De Huizenbeurs and the bill of Uniek Wonen would have also involved an expense on behalf of De Huizenbeurs , it is still a considerable amount paid by [appellant] for the benefit of himself and his family to De Huizenbeurshas been extracted. The curator rightly considers this to be a sign of manifestly improper management of [appellant]. In the opinion of the Court of Appeal, it is unnecessary to argue that withdrawals of this magnitude have also been essential for the bankruptcy of De Huizenbeurs and have contributed significantly to that bankruptcy.

4.3.15. In response, the bankruptcy trustee also has these withdrawals and the violation by [appellant] of his obligations under Sections 2:10 and 2: 394 of the Dutch Civil Code – which violation in itself entails improper performance of the director’s duties – underlined as an important cause of the bankruptcy. The bankruptcy trustee has emphasized that De Huizenbeursamong other things during its entire existence, it did not pay wage tax, did not prepare annual reports and did not keep proper accounts and that the tax authorities ultimately imposed enormous additional tax assessments. The bankruptcy trustee has further stated that [appellant] – understands the court in connection with the prosecution on the grounds of articles 342 and 343 Penal Code (see drafting of charges, prod. 6 to concl.v.antw.) After the report of criminal offenses by the bankruptcy trustee has been convicted.

4.3.16. In his deed after the response, [appellant] expressly stated that the purpose of the deed was not to comment on the response. The inference to be drawn from this that what has been stated by the trustee in the response is unquestionably and therefore definite, does not affect the fact that the additional tax assessments of the tax authorities were already known from, among other things, the overview submitted by the trustee of the claims filed in the bankruptcy (prod. 1 to the deed after the summons at first instance) and the decision jointly and severally liable for premium payment for employee insurance contributions for the years 1994 to 2000 submitted by [appellant] itself in a statement of reply on the Huizenbeurs dated November 28, 2003 of the UWV GAK (production 4).

4.3.17. The foregoing leads to the conclusion that complaint 2 fails. Now that [appellant] has provided insufficient concrete facts and circumstances that state that considerable costs were incurred and investments were made (and were necessary) for the project in 1998 and that having to incur those costs was a major cause of has been able to support the bankruptcy, the court of appeal ignores the offer of evidence made by [appellant] on this point as irrelevant. The same applies to the offer made by [appellant] in the first instance to prove his claim that one of the two trips paid by De Huizenbeurs in 1997 was not a private matter.

4.4.1. In complaint 3, [appellant] accuses the court of law that, with regard to his appeal to a discretion as in art. 2: 248 paragraph 3 of the Dutch Civil Code has ruled that he has provided insufficient facts and circumstances for this and was therefore unable to provide evidence.

4.4.2. With regard to this complaint, the court of appeal considers that art. 2: 248 paragraph 3 of the Dutch Civil Code in particular relates to a situation in which the management of a private company consists of more directors and any improper management cannot be relied upon against an individual director because, in short, the improper performance of his duties has occurred despite his having has done everything to prevent this improper performance of its duties and its consequences. Such a situation does not arise in this case now that [appellant] was the sole director responsible for the implementation of the management obligations.

4.4.3. To the extent that such a possibility of disciplinary action should also be deemed applicable in a case such as this, the court of appeal shares the opinion of the District Court that insufficient facts and circumstances have been set by [appellant] to justify such an appeal by [appellant]. The Court of Appeal refers in this regard to what the Court has considered in that regard in paragraph 3.6 of the interlocutory judgment of 8 September 2004. This is all the more true now, as the bankruptcy trustee has rightly pointed out, that even in previous years no financial statements have been deposited, it does not yet make it plausible that the same non-filing of financial statements 1998, 1999 and 2000 could only be attributed to force majeure. In his rejoinder, [appellant] stated that he would have sent the publication documents to the Chamber of Commerce in time up to and including the 1996 financial year, but he did not substantiate that claim with any supporting documents or offered specific evidence. That statement is also in contradiction with the mention in the decision submitted jointly and severally by UWV GAK on 17 November 2003 (prod. 4 to concl.v.antw.) In which the appellant itself made a declaration that there was a lack of annual figures from 1992 onwards.

4.4.4. In addition, as was considered in connection with complaint 2, the bankruptcy trustee is not only concerned with the failure of the board to fulfill its obligations under art. 2: 394 of the Dutch Civil Code has also relied on non-compliance with its obligations under art. 2:10 BW. [Appellant] has not disputed that there was an inadequate administration. After all, [appellant] acknowledged that De Huizenbeurs during his interrogation by the bankruptcy judge in the bankruptcydid not have a cash administration and that cash withdrawals from the bank and cash payments made with them were not recorded in a cash administration. The suspicion by law (art. 2: 248, paragraph 2 of the Dutch Civil Code) of the failure to comply with the aforementioned obligations – which, according to the aforementioned section of the law, implies improper performance of duties of the director – that improper performance of duties by the management board is a major cause of bankruptcy was, as considered in the context of complaint 2, not refuted by [appellant].

4.4.5. The foregoing means that complaint 3 must be rejected. In so far as [appellant] in complaint 3 also requests that the amount of his liability be moderated, the court of appeal also dismisses that appeal. [The appellant] has not provided any facts and circumstances that could justify a mitigation of the amount of liability as in art. 2: 248 paragraph 4 of the Dutch Civil Code.

4.4.6. In his response conclusion after the interlocutory judgment of 8 September 2004, [appellant] also stated that he invested more money in De Huizenbeurs in 2000 and 2001 than the Huizenbeurs suffered losses in those years and that that single circumstance would preclude it. to hold him personally liable. With regard to this argument, the Court of Appeal considered in the first place that, in the absence of a proper administration of De Huizenbeurs – such as the lack of a cash administration – the accuracy of [appellant’s] statement regarding the claims made by him in De Huizenbeursinvested funds cannot be traced and that the investments made by [appellant] do not yet appear from the administration provided to the liquidator. Furthermore, it follows from the fact that a director does not comply with his obligations under art. 2:10 Dutch Civil Code and / or 2: 394 Dutch Civil Code an improper performance of duties of the director means that the mere withdrawal of funds from the company does not mean that a director cannot be blamed for improper management.

4.5.1. In complaint 4, [appellant] finally opposes the finding by the court in the final judgment of 26 October 2005 that [appellant] the payments that he was sentenced to the bankruptcy trustee in that judgment (to be paid to the bankruptcy trustee in advance) amount of € 1,027,540.63 and the litigation and attachment costs amounting to € 15,105.22) cannot be offset against the claim of € 2,509,968 still filed in the bankruptcy and not verified in the bankruptcy 53 with regard to wages, interest and payments of sales proceeds from properties (prod. 33a for a conclusion after an interim judgment).

4.5.2. The court also rejects this complaint. The bankruptcy trustee has rightly argued that the non-acknowledgment of that claim means that there can be no question of settlement. Furthermore, the bankruptcy trustee correctly argued that if and insofar as [appellant] could claim that claim against the estate, the deficit of the estate is increased by that amount and [appellant] based on his liability for the deficiency in the estate. bankruptcy itself until payment of this excess is required.

4.6. Now that none of the grievances has taken effect, the judgments that have been appealed must be ratified. [appellant] will be ordered to pay the costs of the appeal as the unsuccessful party.

5. The ruling

The Council:

ratifies the judgments of 8 September 2004 and 26 October 2005, of which an appeal is made;

orders [appellant] to pay the costs of the appeal proceedings, which costs are currently estimated by the liquidator at € 5,890.42 in disbursements and at € 4,580 in attorney’s salary;

declares this judgment enforceable.

This judgment was given by mrs. Van Schaik-Veltman, Fikkers and Feddes and pronounced by the role councilor at the public hearing of this court on 20 May 2008.