ECLI: ECLI:NL:RBAMS:2022:5846

Titel: ECLI:NL:RBAMS:2022:5846 Rechtbank Amsterdam , 28-09-2022 / NCC 22/015

Gerecht: Rechtbank Amsterdam

Datum uitspraak: 2022-09-28

Zaaknummer: NCC 22/015

Proceduretype: NCC

Onderwerp: Civiel recht

Rechtsmacht: NL

Taal: nl

Uitspraaktype: Uitspraak

URL: https://data.rechtspraak.nl/uitspraken/content?id=ECLI:NL:RBAMS:2022:5846

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These are proceedings following earlier NCC judgments (ECLI:NL:RBAMS:2020:2406 and ECLI:NL:RBAMS:2021:2994). Since these judgments the claimant (McCourt Global Sports & Media LLC, based in the US) took further enforcement action against the defendants (residing in the Netherlands and Switzerland). It terminated the Settlement Agreement and gave notice of amounts due, demanding payment. At the hearing, defences in this case were withdrawn following an amendment of claim and an arrangement between the parties. In this judgment the Court awards the amended claim. 
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         Dit is een vervolgzaak op eerdere vonnissen van de voorzieningenrechter van de NCC (ECLI:NL:RBAMS:2020:2406 and ECLI:NL:RBAMS:2021:2994). Eiseres (McCourt Global Sports & Media LLC, gevestigd in de VS) is tot tenuitvoerlegging overgegaan van deze vonnissen tegen de gedaagden, die gevestigd zijn in Nederland en Zwitserland. McCourt heeft de tussen partijen gesloten Settlement Agreement beëindigd en gesommeerd tot betaling van verschuldigde bedragen. Tijdens de zitting heeft McCourt - in het licht van een tussen partijen getroffen regeling - haar eis gewijzigd, waarna gedaagden hun verweren hebben ingetrokken. In dit vonnis wijst de voorzieningenrechter de gewijzigde eis toe.

judgment 	 
     AMSTERDAM DISTRICT COURT 
     
     
       Netherlands Commercial Court  
       NCC District Court – Court in Summary Proceedings 
     
     
     
       Case reference number: NCC 22/015 (C/13/720549) 
     
     
     
       
         Judgment 
       
     
     
     
       28 September 2022 
     
     
     
       
         Claimant 
       
       
         MCCOURT GLOBAL SPORTS & MEDIA LLC 
         “McCourt” 
       New York, New York, USA 
       lawyers: A.F.J.A. Leijten, M.F. van Schendel and L.K. van Dijk, Amsterdam 
     
     
     
       v. 
     
     
     
       
         Defendants 
       
     
     
     
       
         [DEFENDANT 1] 
         “[defendant 1]” 
       [city], Switzerland 
       lawyers: J.W. de Groot, C.J.S. de Bruin and L. Tolatzis, Amsterdam 
     
     
     
       
         TENNOR HOLDING B.V. 
       
       “Tennor” 
       Amsterdam, the Netherlands 
       lawyers: R.M. Leeuwenburgh, T.F.B. Jansen and I.J. van Vloten, Amsterdam 
     
     
     
     
       
         Contents 
       
     
     
     
       
         Procedural history 
       
       
         Background facts 
       
       
         Amended claim and defendants’ position 
       
       
         Discussion 
       
       
         Conclusion and order 
       
     
     Signature pages 
     
   
   
     
       1 Procedural history 
     
       All submissions were made in eNCC. McCourt submitted its scheduling request and writ of summons. The Court held a case management conference and gave directions. [defendant 1] and Tennor each filed a separate statement of defence. McCourt submitted additional exhibits (invoices for legal fees). Counsel for each party submitted notes in advance of the hearing. At the hearing, McCourt submitted an amendment of claim, and [defendant 1] and Tennor each submitted a statement. The case was set for judgment today.  
       
         2.	Background facts 
       
     
     
     
       2.1. 
       
         The core facts in the case were discussed at length in three prior NCC judgments: 14 April 2020	ECLI:NL:RBAMS:2020:2277 	“Judgment on Motion” 
         29 April 2020	ECLI:NL:RBAMS:2020:2406 	“First Judgment” 11 June 2021	ECLI:NL:RBAMS:2021:2994 	“Second Judgment” These judgments are attached and incorporated by reference. 
       
     
     
       2.2. 
       After the Second Judgment, several important events occurred. 
       
       
         (a) McCourt took further enforcement action, including the attachment of Tennor subsidiary shares.  
       
       
       
         (b) McCourt terminated the Settlement Agreement.  
       
       
       
         (c) McCourt gave [defendant 1] notice of amounts due, demanding payment. 
       
       
       
         (d) McCourt and [defendant 1] entered into a second deed of acknowledgment of debt, in which [defendant 1] acknowledged, among other things, a debt to McCourt as follows: a termination fee, the remainder of the purchase price, penalties under the Second Judgment and legal fees and expenses. 
       
       
       
         (e) McCourt sold its stake in the business (the 50% that originally was bought by Tennor) to [shareholder], who already owned the other 50% of the business.  
       
       
     
   
   
     
       3 McCourt’s amended claim and the defendants’ position 
     
     
       In its amended claim, McCourt seeks a separate order against each of [defendant 1] and Tennor for payment of € 46 million plus 10% contractual interest per annum as from 15 September 2022. 
     
     
     
       In response, the defendants withdrew their defences, waived their rights to a hearing and said they did not contest the amended claim (deferring to the Court’s judgment;  “referte”  in Dutch). 
     
     
   
   
     
       4 Discussion 
     
       4.1. 
       As an initial issue, on the issue of jurisdiction, the Court re-iterates what it said in the Second Judgment, along the following lines. As McCourt and [defendant 1] are domiciled outside of the Netherlands, this is an international matter. [defendant 1] contested the Court’s jurisdiction in his submissions before the Court, but at a later stage withdrew this defence. That means that the Amsterdam District Court has exclusive jurisdiction under Article 23 or 24 of the 2007 Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In the various contracts underlying McCourt’s claims, a choice of forum has been made for the NCC Court in Summary Proceedings. Any doubts that may exist regarding the scope of the choice-of-court clause are irrelevant, as in the alternative the Amsterdam District Court has jurisdiction on the basis of Article 24 of the Convention. 
       
     
     
       4.2. 
       
         Turning to the substance of the matter, the Court notes that it reviewed the amended claim at the hearing and discussed it with counsel for all of the parties. The following discussion ensued. 
         Ms. Tolatzis (for [defendant 1]) and Mr. Jansen (for Tennor) said their clients had prior knowledge of the amended claim and this was the basis for their statements submitted during the hearing (withdrawing defences, etc.). Mr. Leijten (for McCourt) said it would be abusive  (“misbruik van recht”  in Dutch )  for McCourt to seek any higher recovery than € 46 million plus interest under this judgment and that the separate payment orders (see the claim) are only designed to emphasise Tennor’s independent guarantee obligations. Ms. Tolatzis (for [defendant 1]) and Mr. Jansen (for Tennor) agreed with this view. The Court said that a note to this effect would be included in the judgment, and there was no objection. 
       
       
     
     
       4.3. 
       The Court is satisfied that the parties have reached an arrangement that they understand and are comfortable with. On this basis, it is obvious that relief in summary proceedings, along the lines of the parties’ preferences, is appropriate and that the requirements for an order in summary proceedings (as set out in the First Judgment and Second Judgment) have been met. The amended claim will be allowed. 
       
     
     
       4.4. 
       The Court also notes McCourt’s request to issue European certificates for purposes of enforcement and will issue those certificates. 
       
     
     
       4.5. 
       No cost order will be issued because the amended claim reduces the claim for costs to zero and Mr. Leijten asked the Court not to issue a cost order of its own motion. 
       
     
     
       4.6. 
       The parties did not comment at the hearing on a declaration of enforceability notwithstanding any remedy, but this part of McCourt’s claim was very clearly not deleted in the amendment. No defences had been raised on this point anyway. The Court will issue the declaration. 
       
     
   
   
     
       5 Conclusion and order 
     
     
       THE COURT IN SUMMARY PROCEEDINGS 
     
     
     
       The claim is allowed. 
     
     
     
       [defendant 1] is ordered to pay € 46,000,000 to McCourt plus contractual interest at 10% per annum (compounded) as from 15 September 2022 to the date of full payment. 
     
     
     
     
       Tennor is ordered to pay € 46,000,000 to McCourt plus contractual interest at 10% per annum (compounded) as from 15 September 2022 to the date of full payment. 
     
     
     
       The Court re-iterates that McCourt’s recovery under this judgment is limited to a maximum of € 46,000,000 plus interest as listed above. 
     
     
     
       This judgment is enforceable notwithstanding any remedy. 
     
     
     
       Done by L.S. Frakes, Judge, assisted by W.A. Visser, Clerk of the Court.  
       Issued in public on 28 September 2022. 
       
         APPROVED FOR DISTRIBUTION IN eNCC