Defendant has to show that the claim is invalid

 

Article 705, Paragraph 2 of the Curaçao Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

 

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the alleged claim of the attaching party is invalid (ondeugdelijk). The judge must rule in summary proceedings based on what both parties submitted in such proceedings and have established with prima facie evidence.

 

However, the Supreme Court (e.g. in aforementioned case) has also ruled that the judge in summary proceedings must not only consider this prima facie evidence (or lack thereof) but he is also obliged to take into account mutual interests.

 

In this respect it should be noted, according to the Supreme Court, that a prejudgment attachment by its very nature is intended to safeguard that, if and when an, as yet uncertain claim in a principal action, is awarded, recourse will be possible, while the attachment creditor, in case such a claim is denied in the principal action, may be sued for any loss/damage suffered due to the attachment. This is standing Supreme Court case law: the mere fact that in summary proceedings it is summarily established that a claim is invalid, or as the case may be the validity of the claim is not summarily (or prima facie) established, is not enough to order the lifting of an attachment. It all depends on balancing the interests of the judgment creditor against those of the judgment debtor.

 

Karel Frielink

(Attorney/Lawyer, Partner)

 

(7 October 2015)

 

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