In its decision of 3 March 2011, the Liège Court of Appeal declared an action against the liquidator of a limited liability company C. (hereinafter the "Company") (i) inadmissible with respect to the action against the liquidator in his official function; and (ii) without merit with respect to the action against the liquidator in his personal capacity.
In 1993, E.H. & CIE, a private limited liability company, had launched an action for damages before the Commercial Court of Arlon against the Company. The Company was found guilty in December 2006 and, after the judicial expert's report on the amount of damages, the Commercial Court of Arlon ordered the Company in September 2008 to pay the damages as estimated by the expert.
In the meantime, however, the Company had been liquidated in 2005. As a result, it no longer possessed legal personality following the closure of the liquidation. In November 2008, the Company's liquidator was therefore forced to intervene in the procedure and in its judgment of 17 December 2009 the Commercial Court of Arlon found against the liquidator and the Company and ordered them jointly to pay damages.
On appeal, the Liège Court of Appeal looked at the claim against the liquidator both in his capacity as liquidator and in his personal capacity.
With respect to the action brought against the liquidator in his official function, the Court of Appeal stated that a liquidated company continues to exist during five years after its liquidation in the person of its liquidator in order to respond to any actions that creditors may have against it. Therefore, an action against the liquidator in his official function is in fact an action against the company itself. The Court of Appeal then decided that since the Company had no assets at the moment when the claim was brought against the liquidator in his official function, there was no interest for the plaintiff in filing the claim. The Court of Appeal therefore declared the claim against the liquidator in his official function inadmissible due to a lack of interest.
With respect to the action brought against the liquidator in his personal capacity, E.H. & CIE submitted that the liquidator had committed a fault by closing the liquidation without taking into account the pending dispute against the Company. The Court of Appeal, however, did not uphold this reasoning since even before the closure of the liquidation the Company did no longer possess any assets. Moreover, the Court of Appeal held that there is no provision precluding the liquidator from immediately closing a liquidation when there are no assets available. Consequently, the Court of Appeal concluded that the liquidator had not committed any fault that could give rise to his personal liability. It therefore decided that the action against the liquidator in his personal capacity was without merit.
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