ECLI: NL: RBAMS: 2005: AT9560

290013 / H 04.1622

July 6, 2005

COURT IN THE ARRONDISSEMENT AMSTERDAM

FIRST SINGLE CIVILIAN ROOM

VONNIS

the private limited liability company

BEHIND THE HOUTTUINEN BV IN LIQUIDATION,

established in Breda,

claimant,

Attorney A. Volders, LL.M.

1. A,

residing at (residence),

attorney mr. WF Hendriksen,

2. the civil-law partnership

LOYENS & LOEFF,

Based in Amsterdam,

attorney mr. WF Hendriksen,

3. the limited liability company

ABN AMRO BANK NV,

Based in Amsterdam,

Attorney JW van Rijswijk, LL.M.

defendants

– a summons of 27 April 2004, with supporting documents,

– incidental conclusion to convocation on the side of the notary and L&L,

– incidental conclusion to convocation on the part of the bank,

– the response in the safeguard incident on the part of AdH,

– extract from the minutes at the registry of this court of 1 September 2004,

– conclusion by the notary and L&L,

– the bank’s response with supporting documents,

– the reply’s reply, with supporting documents,

– rejoinder on the part of the notary and L&L,

– rejoinder from the bank,

– request judgment.

b. The notary and L & L & L maintain an account with the bank. Article 9 of the bank’s general terms and conditions (hereinafter: ABV) applicable to the relationship with the notary and L&L:

“Bank transfer orders are executed by the bank on the basis of the account number specified by the client and it is not obliged to verify the accuracy of the data stated in the order.”

d. By fax letter of 3 October 2001, the bankruptcy trustee sent the following information to the office of the notary:

“It is rumored that your office would not have continued to pay certain deductions and would have transferred an unnamed balance to Mr B, director of (AdH).

e. By fax of 5 October 2001, the bankruptcy trustee sent the following information to the office of the notary:

“In the meantime I have found that the account number 50.72.67.672 at ABN-AMRO Breda mentioned in the settlement of your office for this project is not an account of (AdH), but an account of (B) in private (…) If the balance of the settlement went to this account number, that is incorrect.

(…)

The amount of f. Under the given circumstances, 90,000 can best be deposited into the bankruptcy account of (Vinium), ABN-Amro Bank … or the third-party account of my office. ”

f. On 11 October 2001, on behalf of the civil-law notary and at the expense of an account held at the bank, payment of the remainder of € 40,840.22 / f 90,000 (hereinafter: the second payment) took place on B’s account following of the following request from B to the notary by fax letter of the same date:

“We request that you transfer the remaining amount of NLG 90,000 to account number 50.72.67.672 at the ABN-AMRO BANK in Breda (ADH)”

2.1 AdH requests the defendants jointly and severally, at least separately, to be enforceably sentenced by stock to pay the following:

a. € 424,381.33 plus interest from 20 September 2001;

b. € 40,840.22, plus interest from 12 October 2001;

c. the costs of the proceedings.

2.2 AdH bases its claim against the notary that he has acted negligently and unlawfully by ordering the first and second payment. After all, the notary knew: a. That Vinium was declared bankrupt;

b. that the balance at the notary was the proceeds from a sale that had started as execution and was the only real asset of AdH;

c. that Vinium had been in serious financial difficulties for some time and that this had led to seizures;

d. that Vinium creditors wished to recover from the proceeds of the transaction and exercised a right of retention on the project;

e. that the sale of the project directly led to a VAT debt of AdH of NLG 1,643,500.

In addition, AdH points out that the notary despite the under 1d. and 1st. the aforementioned letters and knowing at least that the account designated by him as the beneficiary was not in the name of AdH, had the payment order executed. As a result of the practice of the notary, AdH did not come into possession of the two payments intended for it. The notary is liable for the resulting damage.

4.3 The first payment

The aforementioned under 2.2.a. up to and including 2.2.d. The aforementioned circumstances indicate that AdH’s (Vinium) ’s mother was in financial difficulties. They do not in themselves say anything about the financial situation of the subsidiary AdH, let alone the question whether B was authorized to give the notary the instructions in question on behalf of AdH. In retrospect it turned out that AdH had no debts (statement of reply 13). The fact that there was a considerable VAT debt from AdH after the sale (2.2.e.) does not in itself say anything about whether B was authorized to represent AdH. The aforementioned circumstances are therefore not of sufficient importance to judge that the notary acted negligently towards AdH by relying on the authority of B.

4.4 The second payment

That is different with the second payment, since the notary (and therefore L&L) was then informed by letters 3 and 5 October 2001 (1st and 1st.) That the first payment was credited to B and B’s account. that the bankruptcy trustee of Vinium had objected to this. The civil-law notary and L&L have argued that B’s authority was subsequently checked and the name of the account verified (in vain) at the bank. After B had confirmed the payment instruction in writing, the notary instructed the second payment, since under these circumstances he was not free (in short) to act differently, according to the notary and L&L. The court disagrees. The name of the receiving account could have been verified outside the bank on the basis of the daily statement relating to the first payment of 20 September 2001 (summons, production 4). The notary and L&L could and should have been aware that B was in the process of transferring substantial amounts from AdH’s assets to his own account, while Vinium was in a state of bankruptcy. By proceeding to pay to B without consulting the bankruptcy trustee of Vinium, the notary and L&L placed the bankruptcy trustee for a fait accompli, as a result of which it was no longer possible for the latter to take timely measures to prevent damage, such as suspension / dismissal of B or attachment under the notary at least L&L.

4.5 Ignoring the warnings of the bankruptcy trustee also creates liability vis-à-vis AdH, since at that time the bankruptcy trustee was the only one who was concerned about the interests of (the full subsidiary of his curanda) AdH vis-à-vis B and he should therefore be considered partly in the acted in the interest of AdH. Moreover, it was AdH that was affected by the actions of the notary.

4.6 The damage (to be discussed below) has arisen as a result of the payment order issued by the notary / L & L, with which the causal relationship required for the establishment of liability has been given.

4.7 The notary / L & L have disputed that AdH has suffered damage, arguing that the interdependence of B Privé and AdH cannot be assessed by them and that it is incomprehensible that AdH would not owe B anything. In support of their argument, they state that AdH, as the owner of the land, could claim claims on the structure and that the structure was not funded by AdH. There must therefore, according to them, be a party that could assert claims on AdH in this regard. In the opinion of the court, this does not substantiate that B had a claim against AdH. In response to the defense that B does indeed provide redress for the damage claimed by AdH, the latter stated that a cadastral extract submitted by it shows that the only property of B traceable property (his home in Breda) is two mortgages and eleven studded, while B has been ordered to pay more than € 1 million for another company in connection with directors’ liability. Under these circumstances, the court considers AdH’s statement that B does not offer redress insufficiently reasoned.

4.8 The defense that the damage is partly a result of circumstances (the non-seizure and maintenance of B as a director) that can be attributed to AdH is rejected, since the circumstances mentioned could have arisen precisely because the notary did not clearly respond to the letters from the curator of 3 and 5 October 2001.

4.9 The above means that the claim from AdH for payment of € 40,840.22 will be granted plus statutory interest from 12 October 2001 until payment. Now that the notary / L & L and AdH have been unsuccessful, the legal costs will be compensated as stated below.