ECLI: ECLI:NL:RBAMS:2025:2363

Titel: ECLI:NL:RBAMS:2025:2363 Rechtbank Amsterdam , 21-03-2025 / NCC C/13/762596

Gerecht: Rechtbank Amsterdam

Datum uitspraak: 2025-03-21

Zaaknummer: NCC C/13/762596

Proceduretype: NCC

Onderwerp: Civiel recht

Rechtsmacht: NL

Taal: nl

Uitspraaktype: Uitspraak

URL: https://data.rechtspraak.nl/uitspraken/content?id=ECLI:NL:RBAMS:2025:2363

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Claimant’s claim is for €310,704.03 under a settlement agreement and addendum. Defendant’s defence is a set-off against two alleged counterclaims, to which Claimant responds that such counterclaims were discharged under the settlement agreement and addendum.  
         The Court partly agrees with Defendant’s set-off argument, but for the remaining part of Claimant’s claim, the Court rejects this argument and Defendant’s other arguments, both preliminary and substantive. The Court orders Defendant to pay €47,539.83, plus interest, and €4,500.00 in costs for its unsuccessful motion on NCC jurisdiction/authority. Each Party must bear its own costs in the main summary proceedings since each Party was successful and unsuccessful on various points. 
       
       
       
         Eiser vordert een bedrag van €310.704,03 op grond van een vaststellingsovereenkomst en een addendum. Gedaagde beroept zich bij wijze van verweer op verrekening met twee vermeende tegenvorderingen. Eiser verweert zich daarop met een beroep op finale kwijting op grond van de vaststellingsovereenkomst en het addendum. 
         De rechtbank volgt het verrekeningsverweer van gedaagde gedeeltelijk, maar verwerpt dit verweer, evenals de overige – zowel formele als materiële – verweren van gedaagde, voor het resterende deel van de vordering van eiser. De rechtbank veroordeelt gedaagde tot betaling van €47.539,83, vermeerderd met rente, alsmede €4.500,00 aan kosten voor het vergeefs ingestelde verzoek betreffende de bevoegdheid van de Netherlands Commercial Court (NCC). 
         Verder dragen partijen ieder hun eigen proceskosten, nu beide partijen op verschillende punten zowel in het gelijk als in het ongelijk zijn gesteld.

judgment 
     AMSTERDAM DISTRICT COURT 
     
     
       Netherlands Commercial Court  
       Court in Summary Proceedings 
     
     
     
       Case number: NCC C/13/762596 
     
     
     
       
         Judgment 
       
     
     
     21 March 2025 
     
     
       
         Claimant :  
       
         Hevec B.V. ,	 
       Den Helder, the Netherlands, 
       represented by Mr. R.Q. Potter and Mr. C.R.B. Jonker, lawyers (DeBreij), 
     
     
     
       
         Defendants : 
     
     
       I.   Eurokeg Holding B.V. 
     
     
       
         II.  Eurokeg B.V. ,  
         Den Helder, the Netherlands, 
         represented by Mr. L.P. Kortmann and Mr. M.R. Schreurs, lawyers (Resor). 
       
       
       
         The Parties are referred to as “Hevec” and “Eurokeg” (defendants collectively). They are each referred to as ‘Party’ and jointly the ‘Parties’. The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Civil Procedure (NCCR). 
       
       
     
   
   
     
       1 Quick view of the case 
     
       1.1. 
       Hevec’s claim is for €310,704.03 under a settlement agreement and addendum. Eurokeg’s defence is a set-off against two alleged counterclaims (the VAT Issue and the 2022 Current Account Issue), to which Hevec responds that such counterclaims were discharged under the settlement Agreement and addendum.  
       
     
     
       1.2. 
       The Court agrees with Eurokeg’s set-off argument for the 2022 Current Account Issue, but as to the VAT Issue, the Court rejects this argument and Eurokeg’s other arguments, both preliminary and substantive. Based on this analysis, the Court orders Eurokeg to pay €47,539.83, plus interest, and €4,500.00 in costs for its unsuccessful motion on NCC jurisdiction/authority. Each Party must bear its own costs in the main summary proceedings since each Party was successful and unsuccessful on various points. 
       
     
   
   
     
       2 Procedural history 
     
       2.1. 
       All submissions were made in eNCC under the NCC Rules. 
       
     
     
       2.2. 
       Hevec submitted a writ of summons, exhibits and additional exhibits.  
       
     
     
       2.3. 
       
         On 3 February 2025, Eurokeg filed a motion on NCC jurisdiction/authority and admissibility in summary proceedings, including exhibits. Hevec submitted additional exhibits. The Court held a motion hearing on 12 February 2025, the lawyers submitted notes, and the Court discussed the motion on jurisdiction/authority, and other aspects of the matter, with the lawyers and the Parties. On 14 February 2025, the Court issued its judgment on the motion as to NCC jurisdiction/authority, holding that it has jurisdiction and authority to deal with the case and setting a time limit for Eurokeg to file a statement of defence.  
         It is noteworthy that a motion is generally, as it is here, not an appropriate way to raise issues of admissibility in summary proceedings since such issues should be dealt with at the hearing on the merits. 
       
       
     
     
       2.4. 
       Eurokeg submitted a statement of defence and exhibits. 
       
     
     
       2.5. 
       The Court held a hearing on the merits on 7 March 2025, the lawyers submitted notes, and the Court discussed the matter with the lawyers and the Parties. 
       
     
     
       2.6. 
       Judgment was set for today. 
       
     
   
   
     
       3 Background 
     
       3.1. 
       Eurokeg is a company specialising in kegs for beer or other kegs that help keep beverages, mainly beer, fresh longer.   
       
     
     
       3.2. 
       
         Eurokeg was founded by Hevec. Hevec’s ultimate beneficial owner is the [naam 1] family. At some point, the [naam 1] family became acquainted with  
         Dr. [naam 2] (“ [naam 2] ”), a private investor residing in Switzerland. 
       
       
     
     
       3.3. 
       In 2020, [naam 2] , acting through his holding company “Eurokeg Holding”, acquired a minority stake in Eurokeg, equal to 49% of Eurokeg shares. 
       
     
     
       3.4. 
       A dispute arose between [naam 2] and the [naam 1] family. After much discussion, and ably assisted by their lawyers, [naam 2] and the [naam 1] family, acting through their legal entities, signed a settlement agreement dated 1 March 2022 (the “Settlement Agreement”). Two points in the Settlement Agreement are the sale by the [naam 1] family of their remaining Eurokeg stake to [naam 2] , and a payment by Eurokeg (backed up by [naam 2] ) to Hevec totalling €1,812,875.34 in three equal instalments.  
       
     
     
       3.5. 
       Article 12 of the Settlement Agreement is a discharge:  
       
       
         “ (…) On the condition precedent of the transfer of the Shares and the Real Estate having taken place, notwithstanding the rights and obligations under this Agreement and except as 
         
           explicitly provided for by this Agreement, [naam 2] , Eurokeg Holding and Eurokeg BV on one hand, and the other Parties on the other hand hereby grant each other and towards their 
         
         
           affiliates, as well as each director and employee of Parties and their affiliates, full and final 
         
         
           discharge (volledige en finale kwijting) for any and all existing and future obligations, 
         
         
           liabilities, claims and disputes, whether contractual or non-contractual, contingent or noncontingent, all such in the broadest sense, and further waive (kwijtschelden) all such rights and claims thereunder. The full and final discharge and waiver shall in any case apply, but not be limited, to (i) all rights and claims arising out of, or connected to the mutual (direct or indirect) shareholding of [naam 2] and GVP Acquisition in Eurokeg Holding and Eurokeg BV, including the shareholders' agreement in that regard, (ii) any current account agreements and arrangements, (iii) any loans and other financing arrangements, (iv) alleged claims regarding ownership of title of assets and (v) the share purchase agreement pursuant to which [naam 2] has initially acquired shares in Eurokeg Holding. Any cases of fraud, gross negligence (grove nalatigheid) or willful misconduct (opzet or bewuste roekeloosheid). (…) ” 
       
       
     
     
       3.6. 
       
         On 31 March 2023, the Parties entered into an addendum to the Settlement Agreement (the “Addendum”). Two points in the Addendum are noteworthy here: Eurokeg’s obligation to pay the third and final instalment (€604,291.78) no later than 31 December 2024, and the discharge provision in Article 6.1, which in relevant part says: 
         “ (…) On the condition precedent of fulfilment of the obligations laid down in this Addendum, [naam 2] , Eurokeg Holding, Eurokeg BV and LWC on one hand, and Hevec and Hevec Management on the other hand hereby grant each other full and final discharge (volledige en finale kwijting) for any and all existing and future obligations, liabilities, claims and disputes, whether contractual or non-contractual, contingent or noncontingent, all such in the broadest sense, and further waive (kwijtschelden) all such rights and claims thereunder. (…) ” 
       
       
     
     
       3.7. 
       On 31 December 2024, Eurokeg paid €201,766.90 to Hevec. Eurokeg wrote to Hevec to set off its debt against various counterclaims, and stated that as a result its payment was €201,766,90 instead of €604,291.78.  
       
     
     
       3.8. 
       
         Hevec allowed one of Eurokeg’s counterclaims but disputed the others, as well as the set-off, referring to the discharge provisions. Hevec demanded payment of the remaining amount (€310,704.03, the total debt after subtracting the undisputed items) by  
         13 January 2025. Eurokeg did not comply.  
       
       
     
   
   
     
       4 The claims  
     
     
       4.1. 
       Hevec’s demand is that the Court issue a judgment, enforceable notwithstanding appeal, with three orders for Eurokeg to pay Hevec certain amounts: 
       
       ( i) €310,704.03, plus interest  
       
       ( ii) €3,328.52 in out-of-court costs, or in the alternative an amount the Court determines is reasonable  
       
       ( iii) costs, plus post-judgment costs and interest. 
       
     
     
       4.2. 
       
         Hevec’s substantiation is that under the Settlement Agreement and Addendum, Eurokeg’s debt (€604,291.78, the final instalment) was due on 31 December 2024, and Eurokeg failed to make full payment, instead referring to a set-off it is not authorised to record, given the discharge under the Settlement Agreement and the Addendum.  
         Hevec stresses its urgent interest in obtaining an order to pay the outstanding amount, plus interest and costs.  
       
       
     
     
       4.3. 
       
         Eurokeg’s defence has several main points, which are summarised here: - Hevec has no urgent interest as required in summary proceedings - Hevec’s claims are not appropriate in summary proceedings (they are too complex or may require fact-finding) 
         - The discharge provisions are subject to conditions precedent, which are unmet, so that nothing has been discharged - Eurokeg’s counterclaims and set-off argument have merit. Eurokeg’s conclusion is that the claims must be dismissed.  
       
       
     
   
   
     
       5 Discussion 
     
       5.1. 
       There are two preliminary matters that the Court must address first.  
       
       
         
           The first preliminary issue: Hevec has an urgent interest 
         
       
       
     
     
       5.2. 
       
         The first preliminary issue is Eurokeg’s position that there is no urgent interest warranting summary proceedings here. The Court rejects this position. The Court’s view is that Hevec does have a sufficient urgent interest to justify summary proceedings here, because Hevec is relying on a settlement agreement. The Court emphasises the whole point of a settlement agreement is to settle matters, and that means, in cases like the matter here, that Eurokeg must promptly pay the agreed amount at the right time, no questions asked.  
         If Eurokeg is allowed to raise extraneous issues (such as a set-off against pre-settlement counterclaims) and no relief is to be had in summary proceedings, the Court’s concern is nothing is effectively settled, because Eurokeg can vigorously defend the case and, given the realities of litigation, delay matters for two years or more before complying with the terms of the Settlement Agreement. Along these lines, the Court rejects Eurokeg’s position that there is no urgent interest to warrant summary proceedings here. 
       
       
       
         
           The second preliminary issue: Hevec’s claims are appropriate in summary proceedings 
         
       
       
     
     
       5.3. 
       The second preliminary issue is whether the claims are appropriate in summary proceedings.  
       
     
     
       5.4. 
       The standard here is recorded in Article 256 of the Dutch Code of Civil Proceedings (“DCCP”). Article 256 stipulates that relief is denied if the Court determines it would not be appropriate to decide the matter in summary proceedings. Under case law, a degree of restraint is warranted. If the claim in summary proceedings is for an order to pay money, additional restraint is advised. The Court must apply a three-pronged test (replicating the first preliminary issue above in part): 
       - the first prong is whether the claim is plausible enough to warrant an order at this stage (Is there is a sufficient likelihood of success on the merits?) 
       - the second prong is whether the facts are urgent enough to justify relief at this stage (Is an immediate measure urgent and required in summary proceedings?) - the third prong is a balancing of the Parties’ interests, and here the Court must consider the risk of recovery in the event of an adverse outcome later. (Is there a risk, on a balance of interests, of the unsuccessful party not being able to recover the funds, or undo the measure, if it is ultimately successful on the merits?) 
       This standard was set out in the Court’s judgment of 29 April 2020, ECLI:NL:RBAMS:2020:2406, at 3.4, and the Court adopts that language here, emphasising in particular that the assessment in summary proceedings is at an early stage and on a preliminary basis, and that it is without prejudice to a subsequent action on the merits. 
       
     
     
       5.5. 
       
         Again, like the first preliminary issue, the Court’s view is that this case is appropriate in summary proceedings as a general matter because the claim is based on a settlement agreement. Reference is made to the analysis of the first preliminary issue.  
         The record shows no evidence-taking need be anticipated on the main issues here, and the issues were clearly presented so as to facilitate a ruling on a summary enquiry. However, see the additional point below as to the VAT Issue and whether Hevec’s claim is appropriate in summary proceedings in light of this issue. 
       
       
       
         
           Analysis of substantive issues 
         
       
       
     
     
       5.6. 
       
         The Court now turns to the important substantive points in this case. Hevec’s claim is for payment of money by Eurokeg. The Court reiterates the main contours of the case: - it is common ground that Hevec has a claim under the Settlement Agreement and the Addendum - Eurokeg’s response is its set-off defence based on two counterclaims: the 2022 Current Account Issue and the VAT Issue - Hevec rejects the set-off argument, referring to the discharge provisions.  
         Along these lines, the key substantive issue in this matter is whether the Parties settled the  
         2022 Current Account Issue and the VAT Issue. In other words, are these issues within the scope of the discharge provisions?  
       
       
     
     
       5.7. 
       The standard to interpret the Settlement Agreement and the Addendum, and in particular the discharge provisions, was set out in the Court’s judgment of 29 April 2020 (ECLI:NL:RBAMS:2020:2406 at 3.9 and note 9, summarising the  Haviltex  standard and referring to the earlier judgment of 14 April 2020, ECLI:NL:RBAMS:2020:2277 at 5.7 f and note 21). Reference is made to these judgments. The onus is on Eurokeg (relying on the set-off defence based on alleged counterclaims) to explain the facts that substantiate its position. 
       
       
         
           VAT Issue 
         
       
       
     
     
       5.8. 
       The Court will address the VAT Issue first.  
       
     
     
       5.9. 
       Here Eurokeg presented a preliminary issue as to whether the conditions precedent in the discharge provisions have been satisfied. That is an important point because under the provisions as drafted, the discharge applies only after the conditions precedent are satisfied. Eurokeg’s point is that the conditions precedent refer to transfer of real estate and fulfilment of Addendum obligations, but no real estate has been transferred (the Parties having agreed in the Addendum not to transfer the real estate) and certain Addendum obligations to pay are still unmet because Hevec alleges non-payment. 
       
     
     
       5.10. 
       On a summary enquiry, the Court is persuaded that what has actually transpired is, for all practical purposes, tantamount to satisfaction of the conditions precedent, so that the Court regards the conditions precedent as satisfied for two reasons: 
       - As a matter of interpretation of the conditions precedent, no reasonable person in the same circumstances as the Parties would have understood the language of the conditions precedent in the manner advocated by Eurokeg here 
       - Article 6:23(2) of the Civil Code does not operate in Eurokeg’s favour: Eurokeg effectively created an event of non-fulfilment, by signing the Addendum and by non-payment, and here it is clearly reasonable to treat the conditions precedent as fulfilled on that basis alone. 
       
     
     
       5.11. 
       As to the real estate, the Court finds it is obvious the Parties’ agreement to resolve the real estate issues in a manner other than by transfer does not cause the discharge somehow to vanish into thin air or to be suspended indefinitely until some unspecified future event occurs. The Court is convinced no reasonable person in the same circumstances as the Parties would interpret the Parties’ business in the Addendum that way. While the Court observes it is true the real estate has not been transferred and will not be transferred, this is transparently immaterial because the Parties made alternative arrangements, obviously intending to resolve real estate issues so that such issues would not affect the discharge provisions. Nothing in the record here suggests the Parties intended the discharge to be ineffective, or anything even remotely like that. 
       
     
     
       5.12. 
       As to the Addendum obligations, Eurokeg’s point appears to be that if Hevec demands payment, there is no discharge at this stage, so that Eurokeg is free to set off claims that would have been discharged if Hevec had not demanded payment. The Court’s view is that, again, it should be obvious that no reasonable person in the same circumstances as the Parties would interpret the Parties’ business that way. The Court finds that no business would be able to operate smoothly if similar agreements were to be interpreted like that, and the Parties’ intent was manifestly clear: payment must be made and the discharge applies, even if the debtor fails to pay, subject to the creditor’s rights and remedies. This is what any reasonable person in the same circumstances as the Parties would understand the language in the contract to mean, and no reasonable person would think the debtor can escape its payment obligations by simply not paying, rendering the obligations themselves inoperable, ineffective or meaningless, and empowering and authorising the debtor to present the very kinds of counterclaims the discharge provisions are manifestly intended to settle. 
       
     
     
       5.13. 
       Eurokeg’s arguments on the conditions precedent are therefore rejected. 
       
     
     
       5.14. 
       The Court now turns to the VAT Issue itself.  
       
     
     
       5.15. 
       
         In the Court’s view, on a summary enquiry and taking Eurokeg’s factual analysis of the VAT Issue at face value, the VAT Issue is within the scope of the discharge provisions, and was therefore settled as part of the Settlement Agreement, so that Eurokeg is not allowed to set off the alleged VAT claim. The reason for this conclusion is that based on the record, the VAT Issue, at most, was a simple mistake by administrative staff in the ordinary course of business. The Court’s view is that the facts underlying the VAT Issue, as presented by Eurokeg and on a summary enquiry, do not rise to the level of tax evasion (typically understood as intentional), or fraud, or deceit. Although the Court acknowledges there may have been inattentiveness to detail, or a lack of knowledge of tax rules and practices, on a summary enquiry at this early stage, it was nothing more than that. After all, Eurokeg admits there was no tax liability (after the tax authorities fully examined the matter), and Eurokeg’s position is only that interest should be paid (as required by the tax authorities for some reason Eurokeg failed to explain and the Court fails to grasp).  
         The Court is persuaded it’s nothing more than that, and it is hard for the Court to see how there could be any tax evasion if at the end of the day there is no tax liability. What precisely was being evaded? Eurokeg did not provide a satisfactory explanation and that is dispositive on this issue. 
       
       
     
     
       5.16. 
       Based on this analysis, it is obvious that Hevec’s claim is appropriate in summary proceedings to the extent that the claim is equal to the value of the VAT Issue. No plausible defence was presented and there is no reason for Hevec to wait any longer to get what it is entitled to. The reasoning presented above is therefore, in the Court’s view, adequate to explain why an order to pay money is urgent here, as required in summary proceedings.  
       
       
         
           2022 Current Account Issue 
         
       
       
     
     
       5.17. 
       Next up is the 2022 Current Account Issue. Here the issue is slightly different. The question is whether the Parties settled and discharged an issue that they were unaware of at the time they made the agreement. In technical terms, the issue is whether a reasonable person in the same circumstances as the Parties would have understood the language of the Settlement Agreement and the Addendum, and related documents such as correspondence (nothing else being in the record that bears on interpretation), to mean that the Parties settled matters they were unaware of at that time. The Court observes it is common ground that the Parties were unaware of the 2022 Current Account Issue at the time they signed the Settlement Agreement and the Addendum; nothing in the record suggests any knowledge whatsoever of outstanding amounts pertaining to 2022, and everything in the record suggests the Parties thought they had disentangled their businesses (see below).  
       
     
     
       5.18. 
       It is, of course, within the Parties’ autonomy to make that kind of agreement in respect of matters they may be unaware of, and in many circumstances they may have very good reasons to do so. The Court’s analysis, like the Parties’ positions, focuses on the language of the contract and what the Parties actually communicated to each other in the Settlement Agreement, the Addendum and related documents. The Court observes that it may at first glance be hard to imagine language that is broader than the discharge provisions in the Settlement Agreement and the Addendum (including specific language on the 2021 current account, which was discussed at great length, as the record shows). Obviously, the Parties worked hard to express the idea that they wanted to be done with the uncertainty, the bickering and the stress of their disputes.  
       
     
     
       5.19. 
       However, that is not the end of the Court’s analysis, if for no other reason than that the language of the discharge provisions does not clearly express anything like intent to settle and discharge matters that the Parties were unaware of at that time. It is noteworthy that the Parties put a lot of effort into determining what business they still had between them, and whether they had disentangled their business operations, as they intended to do. The record is clear on this point. In the Court’s view, at this early stage and on a summary enquiry, it is apparent that the Parties thought they had successfully disentangled their operations. In fact, Hevec provided a representation and warranty, expressing the Parties’ confidence that the businesses were disentangled. But on this point, as the record shows, the Parties were wrong, since in 2022 important transactions were still being dealt with by Eurokeg for Hevec’s benefit. Those operations are the heart of the 2022 Current Account Issue because Eurokeg paid bills for the benefit of Hevec’s business operations (transferring money to Hevec to pay Hevec’s debts), and Eurokeg’s set-off argument expresses the balance that Eurokeg states it is owed as result of those payments (the debt being treated here as undisputed, except for the discharge provisions - see 5.21 below).  
       
     
     
       5.20. 
       In these circumstances, the Court’s view is that the 2022 Current Account Issue is not within the scope of the discharge provisions in the Settlement Agreement and the Addendum, and that a reasonable person in the same circumstances as the Parties would not have understood the language of these provisions (read in the context of related correspondence) to mean the 2022 Current Account Issue was discharged.  
       
     
     
       5.21. 
       In the above analysis, the Court treated the debt in respect of the 2022 Current Account Issue as undisputed. The reason is that Eurokeg, which bears the onus to substantiate its counterclaim and set-off argument, presented a detailed Excel sheet backed up by complete bank records for calendar year 2022, setting out all of the transactions that Eurokeg states add up to the 2022 Current Account Issue. The Court examined the Excel sheet and the records, on a summary enquiry, with the lawyers during the hearing, and Eurokeg’s narrative held up. After the hearing, again on a summary enquiry, the Court reviewed the documents, and the documents corroborated Eurokeg’s position. This means Eurokeg has successfully borne its burden, shifting the onus to Hevec, which must explain its reasoning to dispute the debt.  
       
     
     
       5.22. 
       That is where Hevec’s narrative breaks down. Hevec asserted it did not understand the Excel sheet and bank records and no reasonable business would be able to figure it out, but the Court disagrees – a reasonably diligent business would figure this out, as the Court did, and Hevec had a duty to enquire in order to make this happen. It is noteworthy that Eurokeg relied on Hevec’s own records, which Eurokeg had in its possession, because Eurokeg’s employees did the administrative work for the group, including Hevec, in the relevant period of time – a fact which underscores Hevec’s access to the relevant information and the resulting duty to enquire. Accordingly, the Court’s view is Hevec did not present the substantiation required to dispute the debt, and the Court must treat the debt (the 2022 Current Account Issue) as undisputed. 
       
     
     
       5.23. 
       Throughout the analysis, it is incumbent on the Court to emphasise that the Parties and their principals and ultimate beneficial owners, in the relevant time period (early 2022), were not intimately involved in the details of their businesses’ record-keeping. [naam 2] was a foreign investor at some distance from the people who sat at a desk in Eurokeg’s offices and made entries in the business records shifting money back and forth among entities they apparently thought were still group companies. Similarly, the [naam 1] family had little contact with these people. The record clearly reflects these facts, and this explains, at least at this early stage based on the information in the record, why no one alerted the principals or their lawyers to the failure to disentangle prior to the Settlement Agreement and the Addendum, despite extensive talks on issues including in particular the current account position in 2021. Eurokeg should have made enquiries and discovered the truth, but this applies in equal measure to Hevec, so that this point does not assist the Court in resolving the matter. The Court makes these observations only to explain how the problem appears to have occurred, based on the record here. 
       
     
     
       5.24. 
       Having covered the bases in the above analysis, the Court’s conclusion is that, at this early stage, the Court must accept Eurokeg’s assertion that it successfully set off the amount of the 2022 Current Account Issue, and the claim must be rejected to the extent that it reflects the amount of the 2022 Current Account Issue. 
       
       
         
           Risk of recovery and balancing of the Parties’ interests 
         
       
     
     
       5.25. 
       Two final issues must be dealt with. The first issue is risk of recovery and the second issue is a balancing of the Parties’ interests. On both issues, the Court observes the record at this stage is decidedly in favour of the above analysis, so that the likelihood of a different outcome later seems remote and the Parties have no compelling interests to delay compliance with the Court’s decision here. It’s not a close call, based on the record here. And no one has suggested the amounts at issue are such that anyone might face existential threats in business operations or liquidity. As for the recovery risk, both Parties did in fact suggest their opponent might not be able to refund amounts received under this judgment, or have assets available for enforcement (permitting recovery of amounts owed at a later stage), in the event of an adverse outcome of an appeal or later litigation. The Court sees no reason in the record for concern, because both Parties are backed up by wealthy people who no doubt understand the rules about taking money out of a company while the company is subject to pending or imminent litigation that could give rise to refund obligations. Along these lines, these two final issues do not alter the outcome of the Court’s analysis above. 
       
       
         
           The calculation based on the above analysis, and other decisions 
         
       
       
     
     
       5.26. 
       Based on the above analysis, the Court will order Eurokeg to pay the following amount to Hevec: 
       
       
         
           
           
           
             
               
                 Amount claimed by Hevec 
               
               
                 €310,704.03 
               
             
             
               
                 Current Account Issue set off by Eurokeg 
               
               
                 €263,164.20 
               
             
             
               
                 
               
               
                 €  47,539.83 
               
             
           
         
       
       
     
     
       5.27. 
       
         The Court also grants the claim for interest at the statutory commercial rate.  
         Eurokeg argues that the Settlement Agreement and the Addendum do not concern a commercial transaction as referred to in Article 6:119a DCC, but the Court rejects that argument. In the Court’s opinion, the Settlement Agreement and the Addendum are a commercial transaction. The standard here is whether a transaction is between businesses and results in the supply of goods or the provision of services for payment.  It is common ground here that each Party to the Settlement Agreement and the Addendum is a business. Also, under the Settlement Agreement and the Addendum, the [naam 1] family businesses sold various goods, in particular their remaining 51% of the Eurokeg shares, to [naam 2] ’s businesses for money, so that the definition of the term “commercial transaction” in Directive 2011/7/EU is met.  
       
       
     
     
       5.28. 
       Under Article 5.3 of the Addendum, Eurokeg’s obligation was to pay the final instalment no later than 31 December 2024. It is common ground that Eurokeg failed to fully settle this amount. Under Article 6:119a DCC, the damages due for delay in payment of a sum of money, for a commercial agreement, are statutory interest on the sum as from the date following the date agreed upon as final payment date, up to and including the date of the actual payment of that sum by the debtor. The Court therefore grants the statutory commercial interest from 1 January 2025 until the date of payment in full.  
       
       
         
           Out-of-court costs 
         
       
       
     
     
       5.29. 
       Hevec claims €3,328.52 for out-of-court costs. In support of this claim, Hevec argues it put a lot of effort into the collection of the final instalment under the Settlement Agreement and the Addendum, referring to its e-mail dated 2 January 2024 and its letter dated 8 January 2025.  
       
     
     
       5.30. 
       Eurokeg disagrees and asserts that Hevec is not entitled to any out-of-court collection costs. According to Eurokeg, Hevec failed to demonstrate sufficiently that it actually incurred these costs. Eurokeg also asserts that it probably incurred similar costs, at least, whilst it is not a foregone conclusion how the Court will decide.  
       
     
     
       5.31. 
       The Court denies the claim for out-of-court costs because, given the Court’s decisions above and below (each Party being successful and unsuccessful on certain points, and each Party being ordered to bear its own costs in the main summary proceedings), there were no reasonable grounds for Hevec to incur these costs. If Hevec instead had asked for the amount the Court will award, the Court believes it is likely these proceedings would have been avoided. Reference is made to the judgment of 19 February 2025, ECLI:NL:RBOBR:2025:964, at 4.8. The Court is persuaded that the analysis of costs and family relationships there also applies to situations where each party is successful and unsuccessful on various points, in light of the reasons why the Parties must bear their own costs where they are successful and unsuccessful on various points, and in light of the legislative history of the rules on out-of-court costs. See that judgment for further analysis. 
       
       
         
           Costs  
         
       
       
     
     
       5.32. 
       On the issue of costs, Hevec and Eurokeg were successful and unsuccessful on various issues in the main summary proceedings, so that they must each bear their own costs.  
       
     
     
       5.33. 
       
         As for Eurokeg’s motion on NCC jurisdiction/authority (the decision on costs being reserved in the judgment on the motion), Eurokeg was the unsuccessful party, and the Court will issue an order on costs against Eurokeg. To calculate the costs for the motion, the Court will use a higher rate than the amount ordinarily applied for a motion in an average matter, since the higher rate more closely approximates the actual costs that were probably incurred by Hevec, and the motion was manifestly without merit. If Eurokeg thought it needed more time to prepare its defence in the main summary proceedings, as seems likely, it should have submitted a reasoned request for more time, instead of submitting a motion that was manifestly without merit but demanded Hevec’s and the Court’s valuable time.  
         The lawyer’s fee for Hevec for attending the hearing on Eurokeg’s motion (set at one (1) act of process in accordance with the NCC Rules of Procedure, CSP) is therefore set at €3,400.00 (“complex”) plus € 100.00 for post-judgment costs, for a total of € 3,500.00.  
       
       
     
   
   
     
       6 Conclusion and order 
     THE COURT IN SUMMARY PROCEEDINGS 
     
     
       6.1. 
       orders Eurokeg to pay €47,539.83 to Hevec within two working days of service of this judgment, plus interest at the statutory commercial rate under Article 6:119a DCC from 1 January 2025 until the date of full payment,  
       
     
     
       6.2. 
       denies all other claims, 
       
     
     
       6.3. 
       orders each Party to bear its own costs regarding the main summary proceedings, 
       
     
     
       6.4. 
       orders Eurokeg to pay Hevec’s costs regarding Eurokeg’s motion on NCC jurisdiction/authority, set at €3,500.00, this amount being due within 14 days of this judgment and interest accruing at the statutory rate from the 15th day after the judgment to the date of full payment, 
       
     
     
       6.5. 
       declares this judgment enforceable notwithstanding appeal.  
       
       
         Done by L.S. Frakes, Judge, assisted by E.F.M. Houbiers, Clerk of the Court.  
       
       
       
         Issued in public on 21 March 2025. 
       
       
       
       
         
           APPROVED FOR DISTRIBUTION IN eNCC  
         
         
           SIGNATURE PAGE 1 OF 2 
         
       
       
       
       
       
       
       
       
       
       
       
       
       
       
         L.S. Frakes 
         (Judge)						 
       
       
       
       
         
           SIGNATURE PAGE 2 OF 2 
         
       
       
       
       
       
       
       
       
       
       
       
       
       
         E.F.M. Houbiers 
         (Clerk of the Court) 
       
       
       
     
   
   
      Court of Justice of the European Union 28 November 2019, ECLI:EU:C:2019:1028; Court of Justice of the European Union 9 July 2020, ECLI:EU:C:2020:548.