ECLI:NL:RBAMS:2025:7712, Rechtbank Amsterdam, 09-10-2025, C/13/775809
Rechtbank Amsterdam — Uitspraak 
Datum: 2025-10-09 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: US-based company Graybella made a financing commitment to Dutch company Sensius B.V. but has failed to fulfil it. As Graybella neither appeared at the hearing nor raised a defence, Sensius asks for default judgment and to award its claim of € 1,000,000, in summary proceedings. The preliminary judge ruled that she was authorized to record a default judgment and awarded the claim on the basis of the ‘highly probability’ of success in proceedings on the merits.
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        Het Amerikaanse bedrijf Graybella heeft toegezegd aan het Nederlandse bedrijf Sensius B.V. om een financiering te verstrekken, maar komt die niet na. Aangezien Graybella niet op de zitting is verschenen en geen verweer heeft gevoerd, verzoekt Sensius, in een kort geding, een verstekvonnis en toewijzing van haar vordering van € 1.000.000. De voorzieningsrechter verklaarde zichzelf bevoegd om een verstekvonnis te wijzen en wees de vordering toe vanwege de grote kans op succes in een bodemprocedure.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC Court in Summary Proceedings
    
    
    
      Case number:  C/13/775809
    
    
    
      
        Judgment
      
    
    
    9 October 2025
    
    
      
        Claimant: 
    
    
      1. SENSIUS B.V.Oegstgeest (the Netherlands),
    
      2. EXCLUSA B.V.Geertruidenberg (the Netherlands),
    
      3. PBL MANAGEMENT B.V.Groningen (the Netherlands)
    represented by M.P.P. van Buuren and M. de Mooij, lawyers,
    
    
      
        Defendants:
    
    
      1. GRAYBELLA MAIDEN V LLCNorwell, Massachusetts (United States of America)
    
      2. GRAYBELLA CAPITAL LLCNorwell, Massachusetts (United States of America)
    both defendants failed to appear.
    
    
      The parties are referred to below as Sensius and Graybella
    
    
    
      The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Civil Procedure (NCCR).
    
    
  
  
    
      1Procedural history
    
      1.1.
      On 19 September 2025, Sensius submitted a draft writ of summons, with the request to determine the hearing date. On 23 September 2025, the Court gave directions and determined the hearing date. On 24 September 2025, the Court determined the date on which the writ was to be served on Graybella.
      
    
    
      1.2.
      On 26 September 2025, Sensius submitted a writ of summons and exhibits.
    
    
      1.3.
      On 2 October 2025, Sensius submitted additional exhibits.
      
    
    
      1.2.
      On 3 October 2025, the Court held a hearing. M.P.P. van Buuren appeared on behalf of Sensius. Graybella did not appear. The Court discussed the matter with the lawyer representing Sensius. 
      
    
  
  
    
      2Discussion
    
    
      
        Default for failure to appear
      
    
    
    
      2.1.
      The first question before the Court is if the Court is to record Graybella’s default for failure to appear, as Graybella failed to attend court for a hearing. Graybella was not present, either pro se or represented by a lawyer. To this end, the following is considered.
    
    
      2.2.
      The ‘Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters’ of 15 November 1965 (the Convention), to which both the Netherlands and the United States of America are parties, defines the terms for serving a writ of summons on a party domiciled abroad.
      
    
    
      2.3.
      Under Article 15(1) of the Convention, the court should not issue a default judgment in a case where a defendant has not appeared until it has been established that:
      
        
          “the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or
        
        
          the document was actually delivered to the defendant or to his residence by another method provided for by [the] Convention,
        
        
          and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.”
        
      
      
    
    
      2.4.
      On 24 September 2025, the Court directed that the writ was to be served no later than 26 September 2025 11.00 AM, local time (CEST). Evidence presented before the hearing shows that on this date at 10:51 hours the writ of summons intended for Graybella was served in accordance with the Convention, the Dutch Act Implementing the Convention (Uitvoeringswet Haags Betekeningsverdrag 1965) and in accordance with Article 55(1) of the Dutch Code of Civil Procedure. The writ of summons was served on the Public Prosecutor’s Office of the District Court of Amsterdam who then forwarded the writ to ABC legal to serve the writ on Graybella in the United States as required under Articles 3 to 6 of the Convention. Sensius also sent a copy of the writ via UPS courier to the primary addresses of Graybella in the United States. Furthermore, on 26 September 2025, Sensius emailed copies of the writ to Dutch counsel for Graybella, [naam 1] , and Graybella’s managing director, [naam 2] .
      
    
    
      2.5.
      Based upon the foregoing information, the Court concludes there is sufficient evidence that the writ of summons was properly served on Graybella.
      
    
    
      2.6.
      The Court notes that it has not yet received proof of ABC legal having served the writ to Graybella. However, in cases of urgency the judge is authorised to take any provisional or protective measures deemed appropriate (Article 15(3) of the Convention). According to legislative history, the urgent nature of the proceeding permits the Court to issue a default judgment before the requirements of Article 15(1) have been established. Importantly, the Court must also “with due regard for the required urgency, [ensure] as far as possible, in accordance with the objective of the Convention, that a writ served actually reaches the person for whom it is intended and, in the case of a summons, in sufficient time for that person to be able to defend themselves.” (see Dutch Supreme Court 14 December 2007, ECLI:NL:HR:2007:BB7192).
      
    
    
      2.7.
      Sensius has sufficiently demonstrated that is has an extremely urgent need for relief. Sensius claims that Graybella must fulfil their obligation to pay € 1,000,000 to Sensius as there is a desperate need for these funds. Without release of these funds, Sensius finds itself in a state of financial emergency and cannot meet its financial obligations to third parties nor pay salary to its employees. As a result of Graybella’s refusal to pay, payments due on 30 September 2025 have also been withheld. The result of non-payment on the part of Graybella could therefore result in bankruptcy for Sensius.
      
    
    
      2.8.
      At the hearing Sensius argued that Graybella was notified of the writ of summons and the hearings in several ways:
      
        
          ABC legal as well as couriers via UPS were sent to Graybella’s primary addresses to serve the writ in accordance with the Convention,
        
        
          Sensius sent an email containing a copy of the writ to both Mr [naam 2] , as well as legal counsel for Graybella located in the Netherlands, Mr [naam 1] , on 26 September 2025,
        
        
          Graybella is aware of the urgent need for the promised funds as noted in the minutes of the Sensius Board Meeting dated 26 August 2025,
        
        
          an informal teleconference had occurred between Sensius and Graybella on 26 September 2025 to try and come to some sort of settlement. Therein Sensius asserts that it was made clear (albeit orally) that Graybella and its Dutch lawyer had received and were aware of the writ of summons, and
        
        
          that only following the teleconference, Mr [naam 1] withdrew as counsel for Graybella.
        
      
      
    
    
      2.9.
      
        Based on the foregoing, the Court concludes that the writ of summons has reached Graybella, that Graybella is aware and has been aware of Sensius’s claims for payment for some time now and that Graybella has had sufficient time to appear and prepare a defence. As there is an extremely urgent financial need on the part of Sensius, the Court therefore holds that it may in these proceedings record Graybella’s default for failure to appear and issue a default judgment.
        
          Jurisdiction and applicable Law
          
        
      
    
    
      2.10.
      As this case is of an international nature, the Court must also determine whether it has jurisdiction and what law applies to the dispute.
    
    
      2.11.
      Sensius makes its claim based on the ‘Subscription Agreement” between the parties of 26 May 2025. Under Section 16 et seq. of that agreement, both parties agreed:
      - that the governing law shall be that of the Netherlands and 
      - that all disputes arising out of the agreement shall be resolved by the Amsterdam District Court, in English, before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC) to the exclusion of the jurisdiction of any other courts and 
      - that an action for interim measures may be brought in the NCC’s Court of Summary Proceedings. This choice of court clause follows the requirements set out in in Article 25 of the Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of December 22, 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (hereafter: the Regulation), applicable according to Article 6 section 1 of the Regulation. 
      
    
    
      2.12.
      In terms of applicable law, the Subscription Agreement is a contractual obligation in civil and commercial matters within the meaning of Regulation (EC) No. 593/2008 of the European Parliament and the Council of June 17, 2008 (Rome I-Reg). As such the parties have made a choice of law as referenced in Article 3 of this Regulation and this choice has the result of Dutch law applying to the claim.
      
      
        
          Claim not unlawful or without merit
        
      
      
    
    
      2.13.
      Sensius claims that Graybella is primarily responsible to pay a sum of € 1,000,000 directly to Sensius in line with their obligations under the Subscription Agreement.
    
    
      2.14.
      Under Article 139 of the Dutch Code of Civil Procedure (DCCP), the court gives a default judgment for the claimant, except where the court determines that the claim is unlawful or without merit. According to established case law, the Court must have restraint when considering monetary claims in summary proceedings. The Court must examine whether the existence of the claim is sufficiently plausible; meaning that it must be highly probable that a later court hearing the claim will uphold it. Facts or circumstances that necessitate immediate relief on grounds of urgency must also be present. Lastly, the risk of restitution must be taken into account when weighing the interests of the parties.
      
    
    
      2.15.
      The Court is of the opinion that Sensius has, with high probability, demonstrated with their arguments, writ and exhibits that Graybella committed itself to a payment of € 1,000,000, due on 31 July 2025. Based on this conclusion, it must be assumed that the court dealing with the merits of the case will uphold Sensius’s primary claim.
      
    
    
      2.16.
      Following from paragraphs 2.6 and 2.7 above, immediate relief requires grounds of urgency and Sensius has demonstrated such urgency. It falls then to Graybella to invoke the existence of a possible risk of restitution against such an issuance on urgency grounds. Since Graybella did not appear and therefore did not invoke this risk, the Court cannot assume that such a risk exists in the absence of facts and circumstances to the contrary. 
      
    
    
      2.17.
      Therefore, the criteria set forth in paragraph 2.14 above have been met and the claim of Sensius does not appear to be unlawful or without merit. The Court rules that the obligations under the Subscription Agreement, the relationship between the parties and the nature of the payment obligation support Sensius’s claims. Importantly, Schedule 8 of the Subscription Agreement requires Graybella to make their payment to a third-party notary and not directly to Sensius as Sensius claims in their writ. According to the Subscription Agreement, notary is to mean: [naam 3] [bedrijf] , in [plaats] , the Netherlands. The Court believes these contractual terms should be applied rather than a direct payment to Sensius, as claimed. The Court deems it therefore appropriate to order Graybella to pay the amount claimed of € 1,000,000 jointly and severally to the designated third-party notary as stipulated in the Subscription Agreement. The amount of € 1,000,000 is to be increased by statutory commercial interest (wettelijke handelsrente) as of 25 August 2025 to be paid to Sensius as claimed.
      
      
        
          Extrajudicial Costs
        
      
      
    
    
      2.18.
      Sensius claims in addition to its above primary claim, a right to extrajudicial costs in the amount of € 6,775. The Court finds that extrajudicial costs as defined under the Extrajudicial Collection Costs Compensation Decree (Besluit vergoeding voor buitengerechtelijke incassokosten) can be awarded. 
      
    
    
      2.19.
      The Court estimates the extrajudicial costs in accordance with the applicable statutory rate. The maximum rate for extrajudicial collection costs for claims exceeding € 200,000 is € 6,775. The claim will therefore be awarded up to an amount of € 6,775.
      
      
        
          Process Costs
        
      
      
    
    
      2.20.
      
        Graybella as the unsuccessful party in the proceeding will be jointly and severally 
        ordered to pay the costs for these proceedings.
      
      
    
    
      2.21.
      The costs on the part of Graybella are set at:
      
        
          
          
          
          
          
            
              
                - service of the writ of summons
              
              
                €
              
              
                119.40
              
              
                
              
            
            
              
                - court fee
              
              
                €
              
              
                9,481.00
              
              
                
              
            
            
              
                - lawyer’s fee
              
              
                €
              
              
                2,300.00
              
              
                (1.0 × € 2,300.00)
              
            
            
              
                - post-judgment costs
              
              
                €
              
              
                178.00
              
              
                (to be increased by the amount mentioned in the conclusion and order)
              
            
            
              
                total amount
              
              
                €
              
              
                12,078.40
              
              
                
              
            
          
        
      
      
    
  
  
    
      3Conclusion and order
    
    
      THE COURT
    
    
    
      3.1.
      records Graybella’s default for failure to appear;
      
    
    
      3.2.
      orders Graybella Maiden V LLC and Graybella Capital LLC jointly and severally to pay € 1,000,000 to [naam 3] [bedrijf] , in [plaats] , the Netherlands;
      
    
    
      3.3.
      orders Graybella Maiden V LLC and Graybella Capital LLC jointly and severally to pay to Sensius the commercial statutory interest pursuant to Article 6:119a Dutch Civil Code over the amount of € 1,000,000 as of 25 August 2025 until the day of full payment;
      
    
    
      3.4.
      orders Graybella Maiden V LLC and Graybella Capital LLC jointly and severally to pay to Sensius the extrajudicial costs of € 6,775;
      
    
    
      3.5.
      orders Graybella Maiden V LLC and Graybella Capital LLC jointly and severally to pay to Sensius the costs of these proceedings, set at € 12,078.40 to be paid within fourteen (14) days after service of this judgment. If the orders are not complied with in time and this judgment is served: plus € 92 for post-judgment costs and the costs of the writ of service;
      
    
    
      3.6.
      orders Graybella Maiden V LLC and Graybella Capital LLC jointly and severally to pay statutory interest pursuant to Article 119 of the Dutch Civil Code over the costs if these costs have not been paid within fourteen (14) days after service of this judgment until the day of full payment;
      
    
    
      3.7.
      declares this judgment enforceable notwithstanding appeal; 
      
    
    
      3.8.
      dismisses any other claims.
      
      
        Done by A.C. Bordes, Judge, assisted by J. Johnston, Clerk of the Court. 
      
      
      
        Issued in public on 9 October 2025.
      
      
      
      
      
        
          APPROVED FOR DISTRIBUTION IN eNCC 
        
      
      
      
      
        
          SIGNATURE PAGE 1 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
      
        A.C. Bordes 
        (Judge in summary proceedings)						
      
      
      
      
        
          SIGNATURE PAGE 2 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
        J. Johnston
        (Clerk of the Court)