The trustees of OAD, who ten years after the bankruptcy wanted to see money from the SGR guarantee fund, have failed at the court in Rotterdam.
The court did not agree with the demand of the trustees who wanted to see 7 million euros in bank guarantee provided by Rabobank, in favour of OAD, returned from SGR.
The trustees summoned SGR in June 2023, ten years (!) after the bankruptcy of the family business from Holten, because they wanted to receive back an amount of 7 million euros in bank guarantees.
SGR had used the bank guarantee to compensate travellers from the bankrupt OAD.
The case brought by the trustees was brought before the court in Rotterdam in April this year.
The court has now given its verdict.
Shortly after OAD went bankrupt in September 2013, SGR used Rabobank’s bank guarantee of 7 million euros to compensate OAD passengers who had been duped.
In legal terms, this is called the ‘enforcement’ of the bank guarantee.
Incidentally, SGR has paid out more than 25 million euros in damage to affected travellers and is therefore left with a net loss of approximately 18 million euros after the bank guarantee has been collected.
The trustees are of the opinion that SGR wrongly enforced this bank guarantee.
They speak of tort and unjust enrichment.
As early as October 2014, when SGR submitted its claim to the liquidators, it enclosed, at the request of the liquidators, an overview of all payments in excess of 10,000 euros, including a report by a chartered accountant who had investigated on the basis of random checks whether SGR had rightly made payments to travellers and other beneficiaries.
SGR then also offered the trustees to inspect the 30,000 claim forms, but the trustees did not take advantage of that offer for unknown reasons, the judge said.
Also according to the court, the liquidators did not dispute that SGR again offered them in June 2022 to check the claim forms by means of a random sample.
The trustees did not avail themselves of this opportunity either.
In short, according to the court, the liquidators failed to give reasons to contest SGR’s claim and did not provide any evidence for their claims.
The liquidators’ argument that SGR acted in breach of the Bankruptcy Act by invoking the bank guarantee also fails.
OAD and, for that matter, all participants enter into an agreement with SGR at the time they join SGR that obliges them to provide guarantees as security for the recovery of damages in the event of bankruptcy.
According to the court, if SGR then invokes this guarantee in the event of bankruptcy, it is in line with the agreements that SGR makes with participants and is not in conflict with any written or unwritten rule of law.
Therefore, according to the court, the question can be left open whether the claim of the travellers against OAD was also transferred to SGR on the basis of assignment or subrogation.
According to the court, it can also be left open whether the claim of the trustees has now become time-barred.
The trustees were also ordered to pay the legal costs of more than 18,000 euros. (Photo Shutterstock).
