ECLI: NL: RBAMS: 2005: AT9560

Instance
Court of Amsterdam
Date of decision
06-07-2005
Date of publication
19-07-2005
Case number
290013
Jurisdictions
Civil rights
Special characteristics
Ground case
First instance – single
Content indication

duty of care notary

Legal references
Civil Code Book 6 
Civil Code Book 6 162
Locations
Rechtspraak.nl
JOR 2005/226
Enriched pronunciation

Statement

290013 / H 04.1622

July 6, 2005

COURT IN THE ARRONDISSEMENT AMSTERDAM

FIRST SINGLE CIVILIAN ROOM

VONNIS

in the case of :

the private limited liability company

BEHIND THE HOUTTUINEN BV IN LIQUIDATION,

established in Breda,

claimant,

Attorney A. Volders, LL.M.

against :

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

Plaintiff is hereinafter referred to as AdH; Defendants are separately referred to as the notary, L&L and the bank.

COURSE OF THE PROCEDURE

The court proceeded from the following procedural documents and / or procedural acts:

– 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.

GROUNDS OF THE DECISION

1. Established facts

If on the one hand stated and on the other hand acknowledged or not (sufficiently) disputed, as well as on the basis of the content of supporting documents submitted to that extent not disputed, the following is established.

a. AdH is a full subsidiary of Vinium Investments BV (hereinafter: Vinium). In September and October 2001, Mr. B (hereinafter: B) was director of both companies. The notary practiced the practice within L&L during that period. Vinium was declared bankrupt on 11 September 2001 with the appointment of mr. C as the liquidator (hereafter: the liquidator).

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.”

c. On 18 September 2001, the civil-law notary completed a deed of transport, whereby AdH paid all her real estate for an amount of Hfl. 10,293,500 transferred to a third party (hereinafter: the transaction). With regard to the settlement of the transaction, on 20 September 2001 the notary charged by telephone to an account held at the bank on account number 50.72.67.672 at ABN AMRO, Breda branch, an amount of € 424,381.33 (hereinafter: the first payment). This account is held by B (in person) and is hereinafter also referred to as: the account of B.

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).

I kindly ask you to take good note that in the meantime, as the trustee of the sole shareholder in (AdH), I have prohibited the management from paying any amount chargeable to (AdH) without my prior written permission. ”

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)”

g. B resigned as director of AdH with immediate effect on 29 October 2001.

h. At the general meeting of shareholders of AdH on November 23, 2001, it was decided to dissolve AdH with the appointment of the liquidator as liquidator.

2. The claim

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.

2.3 L&L is liable, since the notary provided his services from this partnership. In addition, L&L is independently liable insofar as adequate measures have not been taken or complied with in its office organization with regard to the execution of payments to clients, in particular measures to prevent an incorrect mention of bank account numbers or other payments from reaching the beneficiary.

2.4 The bank is liable as it has carried out the payment orders (without inquiring about the correctness of the payment order at the notary or L&L), after a name / number check had shown that the beneficiary’s account was registered according to the notary ( AdH) deviated from the name registered with the bank (B). The bank intentionally and unintentionally had the payment sent to B, against whom it had a substantial claim.

3. The defense

The defendants dispute the claim and put forward a substantiated defense.

4. Assessment

4.1 It is established that, at the time of the payment orders at issue, B – according to the entry in the Trade Register – was authorized to represent AdH as a director and apparently intended to have the remainder of the proceeds of the transaction credited to his account. The notary acted in accordance with B’s instructions, after which the bank executed these instructions. The question that therefore arises is not whether the defendants have correctly executed the instructions from B (and therefore AdH) and the payment orders arising therefrom, but whether there were additional circumstances on the basis of which it was negligent for them to take over B’s authority against AdH to give these instructions. When assessing that question, a distinction must be made between the first and the second payment.

4.2 Before going into this, the court will first discuss the position of the bank. The bank is accused of having carried out the payment instructions given by the notary, while the account number stated was not in the name of AdH mentioned by the client, but in the name of B. This accusation does not apply. In the relationship between the bank on the one hand and the notary and L&L on the other hand, transfer orders are executed on the basis of the account number specified by the client (Article 9 of the GMS). It has also been established that the bank acted in accordance with the wishes of its client, the notary and / or L&L when executing the payment orders. The bank did not act negligently towards the notary and L&L. In relation to AdH (not a client of the bank and not a beneficiary within the meaning of Article 9 of the ABV), neither has it been established that circumstances known to the bank under which it must have been clear to the client at the time of the transfers ) of the notary was represented by someone whose authority could not be trusted. Now that the claim against the bank is rejected on this basis, the other defenses of the bank can remain undiscussed. AdH will be ordered to pay the costs of the proceedings on the part of the bank. Now that the claim against the bank is rejected on this basis, the other defenses of the bank can remain undiscussed. AdH will be ordered to pay the costs of the proceedings on the part of the bank. Now that the claim against the bank is rejected on this basis, the other defenses of the bank can remain undiscussed. AdH will be ordered to pay the costs of the proceedings on the part of the bank.

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.

DECISION

The court:

– orders the civil-law notary and L&L to pay jointly and severally to AdH an amount of € 40,840.22 (forty thousand eight hundred and forty-two euros and twenty-two eurocent) plus the statutory interest as referred to in article 6: 119 of the Dutch Civil Code from October 12, 2001 until payment;

– orders AdH to pay the costs of the proceedings on the part of the bank, up to this judgment estimated at € 5,160 for the attorney’s salary and € 4,535 for disbursements;

– compensates the other costs of the proceedings in such a way that AdH, the notary and L&L bear their own costs;

– declares these payment judgments enforceable from stock;

– rejects the more or otherwise advanced.

Declared by NCH Blankevoort, member of the said Chamber, and pronounced at the public hearing on 6 July 2005 in the presence of the Registrar.

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