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The court of first instance in curacao

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  • 1. The Court of First Instance in Curacao.February 18, 2013dutch to English google translation we have now received in entirety March 18, 20131.ArnoldHuizingqq trustee in bankruptcy of the private company Aqua Spa BV , Based in Curacao.2.MarietaFilomenaHassell - Lopez, residing in Aruba.3. Emile Hassell, residing in Curacao,Plaintiffs attorney, Mr. ThAardenburg,Against1.de limited company Riffort Village Directory NV, based in Curacao,2. the corporation Riffort Village NV, based in Curacao.3.de limited company established in Aruba Aruba Bank NV,Defendants,Attorney defendants under 1 and 2; Mr. C.H.M. FievezRepresentative shall defendant under 3. Mr. B. Nagel Makers.Plaintiffs will hereinafter Aqua Spa, Lopez and Hassell (plaintiffs collectively referred to as Aqua Spa cs)called. Defendants will hereinafter Riffort, Renaissance and the Bank are listed.Conduct of the procedure1.1. The procedure appears from;- The originating application, on April 29, 2011 filed with the Registry;- The conclusion of response Riffort Renaissance and of 14 November 2011;- The statement of defense of the Bank, also counterclaim, on 14 November 2011;- The conclusion of reply in convention, also statement of defense counterclaim January 9, 2012;- The document commenting on the part of the trustee of 2 April 2012;- The suspension of the proceedings in the counterclaim by April 2, 2012;- The suspension of the proceedings in the counterclaim by April 2, 2012 due to the failure of Aqua Spa;
  • 2. - The rejoinder in Riffort and Renaissance convention of 25 June 2012;- The rejoinder in the Bank Convention of 25 June 2012;- The plea hearing of 18 September 2012 and on the occasion of that meeting submitted pleadings.1.2 Judgment is specified date.The facts2.1 The following facts will in this dispute between the parties as fixed aid. These facts appear from thedocuments and / or resulting from allegations of the parties so far as they are supplied by one party andthe other party are recognized or not or not sufficiently challenged.2.2 Aqua Spa was founded on May 31, 2007. Hassell is a director of the company.2.3 Aqua Spa on 27 September 2007 a lease - and concession agreement with Riffort (hereafter, thelease), Aqua Spa with the exclusive right to operate a spa in the Rif Fort in Otrobanda (hereinafter, thespa). The lease commenced on 1 March 2009. The lease states - where relevant - the following;The Tenant (Aqua Spa) has Responsible for the leasehold improvement zoals but not limited to thestorefront, ceilings. Floor and wall covering, light fixtures, electrical installations etc. It is Explicitlyagreed That this location may be substituted for another location at any time and at the sole discretionof the Landlord (Riffort) on the following, conditions and covenants provided however That Landlordgives tenant a reasonable period for the re-location and provided That any reasonable cost for therelocation will be for the account or Landlord.1. CONCESSIONLandlord hereby grants to Tenant the sole and exclusive right to operate a Spa facility in the RenaissanceCuracao Resort for the sale of services and items related to an upscale full service spa or internationalstanding and in compliance with standards Renaissance for a resort hotel.2. COMMENCEMENT OF TERMThe term of this lease is for a period of 5 years, commencing on the opening of the resort (...)3. RENT, COMPENSATION, OUTDOOR, ADVERTISING AND PROMOTION(...)The monthly fee for Entertainment, Advertising, Promotion and consistently the initial term amounts toUSD 1.420, - (..)6. OPTIONS TO RENEW THE LEASE
  • 3. While the lease is in full force and effect (...) Tenant Shall have the right or option to extend the originalterm of this lease for a two terms of five (5) years. Such an extension or renewal of the original termShall Be upon terms, covenants and conditions to be negotiated.23 SURRENDER OR Premises AT END OF TERM.23.3 The Tenant at his own expense Shall remove all property of Tenant and all Alterations, additions orimprovements All which may remove Tenant under this lease, repair all damage to the Leased Premisesto the condition in All which they were prior to the installation of the articles so moved (...)23.6 The Landlord Shall Not be liable to make any payment for items not removed. Already Items notremoved, may be removed at Tenants expense.31. TERMINATION OF THE LEASE AGREEMENT31.1. (..) When a conservation attachment is served on or distress is leveled on the movable orimmovable goods of the Tenant or on a part thereof (..) the Landlord Shall have right (..) to (..) terminatethis Lease Agreement with immediate effect by giving notice to the Tenant by registered mail, withoutany judicial judgment being required.2.4 By agreement of 14 May 2008 between Orco Bank and Aqua Spa is a loan of NAF. 1.150.000, - and akreditlijn of NAF.100.000 to Aqua Spa provided (hereinafter: the credit agreement). As security for thefulfillment of the obligation under the credit agreement include the following agreements.- Pledging or savings account in the name or (Lopez) at Aruba Bank (...) for the amount or AWG175,000.00.- Pledging or 3,378 shares or Meru Real Estate Investments SA in the company HJC Realty SA.- Pledging or Inventory and Equipment or Aqua Spa BV.- Pledging of shares or Aqua Spa BV-Personal guarantee of Mr. and Mrs. Marieta Emile HassellHassell - Lopez has to be signed for each anamount or ANG 1,250,000.00- Once the mortgage on the condominiums at Jardines del Mar has leg released by Aruba Bank NV, OrcoBank will have the right to place a first priority mortgage up to a principal amount of ANG 1,250,000.00on a 3 bedroom condominium at Jardines del Mar.2.5 The credit agreement on the applicable general conditions mentioned include the following;2.1 The Bank will carry out all orders of the client the required diligence and thereby to the best of thebest interests of the client account (..)4.6 Each loan will be due immediately, even if repayment rate and / or notice has been agreed or aspecific expiration date is set.
  • 4. If a client the conditions under which the loan was granted does not strictly comply, (...)e. Should the client incorrect or incomplete information to obtain, widening or extension of a by theBank / to grant credit.46.2 The Client is obliged to initial application of the Bank for this purpose all to the Bank promptlycomply.2.6 In property deed of May 14, 2008 Aqua Spa Orco Bank pledged its inventory.2.7 Aqua has made investments to a spa in the rented building in order to exploit this spa.2.8 Aqua Spa has a business doing drawing by Deloitte & Touch. The business distinguish two scenarios.In the worst case scenario assumes a clientele of approximately 10 guests (Renaissance) and 14 localcustomers per day.2.9 By letter of 2 October 2009, Orco Bank - where relevant - the next to Aqua Spa message;"Regret Fully we must inform you That some of the bestaande and offered collateral are not in place. (..)The aforementioned puts the account in a default position. We urge you to present an acceptablecollateral to secure the exposure prior to October 16.2009 other wise we will have no other alternativeto take Necessary steps to maximize our recovery position. "2.10 If the deed of assignment dated 30 April, 2010, Orco Bank which they head out of the creditagreement Aqua Spa receivable has been assigned to the Bank.2.11 By letter of 22 July 2010, the Bank - where relevant - the following Aqua Spa cs message;"Your loan account shows as per today arrears or ANG 118,206.29 and your current account isoverdrawn for an amount of ANG 78,531.21 bringing the Total past due amount to 196,737.50 Awg. Wehereby request That You start with repayment or your monthly installment or ANG 23,8872.11 axis byAugust 1, 2010 and to make The necessary arrangements to transfer this amount to your currentaccount at Aruba Bank.Also we have taken notice That the deposits That you make on the current account at Orco Bank are inthe range of ANG 40 / m per month. You have informed us That You Also deposit the credit cards atRBTT Bank in Curacao, but we have Requested you to transfer on a continuous basis, not less than twicea week from the account at RBTT to the account or Orco Bank, in order That we can have a betterpicture of the development of your revenues. It Remains a Group That Does Not Appear the cash flow tobe sufficient is to pay all of the obligations of the company, but not limited to the zoals loan payments ofthe Bank.Also we are hereby requesting a copy of all invoices paid related to the construction and equipment andall other initial startup expenses Relating to the investment in the Spa. With reference to our recent
  • 5. conversation and after Evaluating the Credit Facilities Agreement dated May 8.2008 we have takennotice That subject Credit Facilities Agreement has not honored leg on various points.It is a condition of your agreement That submit your Annual Financial Statements Within 90 days aftereach year - end. In addition various quarterly reports are to be Submitted as stated under article 14Appendix 2 in the Additional Provision to your Credit Facilities Agreement.(...) Also Considering that up to now no replacement has leg collaterize provided to your credit, thisRemains a serious issue and the Bank will be addressing this issue with the guarantors or your company.We hereby request That You address / remedy the issues Mentioned in this letter, as each thesis oritems do constitute a default if not corrected. 2.12 By letter of 6 October 2010, the Bank - where relevant - the following Aqua Spa cs message;"We inform you That You remainning in default with the agreement with the Bank (...). You have notmade a concrete counter offer to start paying on the account. The company Remains on leveraged forthe current level of operation and does require a major capital injection (...)Please note the the Bank does consider That You remainning in default and we request That you pay orthe Bank in full by no later than November 15.2010 Unless we arrive at a new agreement by That TimeAll which will entail but not limited to a new payment schedule and acceptable collateral.That we trust you will take due note of this letter. 2.13 By letter of 23 November 2010, the Bank - where relevant - the following Aqua Spa cs message; "In addition to your prior defaults Mentioned in our previous letter, you have not compaction songwith the monthly payments or ANG 10,000 on October 1, 2010 and on November 1.2010. Further More,you have not provided the Bank with your internal financial figures in order to make a properassessment of your business. The above is not acceptable and your remainning in default. Consequently, the Bank has Decided to make an assessment of your business and will requestthe assistance of a reputable accounting firm, to assist with the assessment, All which cost will be foryour account. The Bank Expects your full cooperation consistently the assessment. 2.14 When an email message of 9 December 2010, the Bank the following message Aqua Spa;"We received the SFT statements for the month of November. However, the cash flow sheet that wassent to you last week to be filled in has not yet Submitted leg. Be Informed That the Bank can notwatimuch longer to receive the Requested file and lieve have online access to both of both bank accounts.The cash flow is essential for the monitoring of the dialysis writing checks or with the prior approval ofthe Bank based on the available funds.Be Informed That without your strict compliance with the conditions as stipulated in our letter ofNovember 23.2010 we will need to increasefontsize our Efforts to secure our interest. "
  • 6. 2.15 email message of 15 December 2010 the Bank has the following message Aqua Spa; "Despite our requests and your promises we have not yet received back the cash flow sheet. Our call toyour mobile revolution Unanswered. Cynthia called me yesterday for some assistance for filling in thesheets but we have not received it back yet.Please provide an update on the above, this is taking too long. "2.16. By letter dated December 21, 2010, the Banks credit agreement immediately terminated. Lopezand Hassell gain thereby to 4 January 2011 to repay the credit in their position as guarantor. OnDecember 22, 2010, the Bank also its lien on the inventory of the spa exercised. Riffort the lease sameday orally terminated.2.17 On 23 December 2010 the Bank Aqua Spa notice that the exercise of the right of pledge theoperation of the spa is not in the way of having to stand. If the inventory is removed, Aqua Spa, thecompany can continue.2.18 Riffort Renaissance and the employees of Aqua Spa from December 22, 2010 the spa accessdenied. By letter dated December 24, 2010, received by Aqua Spa on January 7, 2011, has Riffort toAqua Spa notice that the lease is terminated with immediate effect, because the Banks lien on theinventory exercised.2.19 The inventory is not removed by the Bank. Ultimately, the inventory at the public auction atRenaissance sold. As of April 1, 2011 Renaissance operates a spa in the rented.The Dispute.3.1 Aqua Spa cs progresses convention that the Court, by judgment enforceable, to rule that;- The lease at December 22, 2010 by unlawful Riffort has ended and as of that date is no longer in force;- Riffort and Renaissance and the Bank have acted unlawfully against the applicants;- Riffort and Renaissance, at least Riffort unjustified, are / is enriched.- It also requests that Riffortcs Aqua Spa, Renaissance and the Bank are jointly and severally ordered topay damages to Aqua Spa cs amounting to USD 5,417,578.60 2,187,502.26 and NAF, plus statutoryinterest, at least compensation further assessed by state and ordered Riffort, Renaissance and the Bankof the proceedings.3.2 At its claims against the Bank Aqua Spa cs at the following foundations. The Bank on December 21,2010 the credit relationship with Aqua Spa immediately terminated without a notice period. The nextday, the Bank without prior consultations within the spa with a lot of force and the spa was closed.While the Bank had no right to the spa to close. Moreover, this took place in the season for the spa. TheBank did voogaande in the knowledge that Hassell abroad was to overnamekanditatenspeak. The Bankalso knew that doing Aqua Spa was a new manager to attract and financial projecities for the next six
  • 7. months to prepare. Also knew that the Bank Aqua Spa in trouble was hit by Renaissance its commitmentto the spa with her guests to promote failed to meet. There are also indications that there is illustratedby an approach between the Bank and Riffort / Renaissance. The furniture is indeed a low amount soldto Renaissance, now a spa in the rented operates. The actions of the Bank is also unlawful to Lopez andHassell. The Bank has the aforementioned behaviors performed in the knowledge that Lopez and Hassellpersonal guarantors voro the entire debt to the Bank of Aqua Spa. Despite the knowledge that Aqua Spacs was doing to attract new investors, the Bank has pulled the plug from Aqua Spa. It also provides adirect tort against Lopez and Hassell on said still Aqua Spa cs3.2 The Bank has in its defense the following. The Bank is authorized to cancel a credit relationship andits pledge to exercise. In the present case there was any reason to. Aqua Spa lived a long time unable tomeet its obligations to the Bank. The loan was not repaid and any investor, but that was never concrete.The information requested by the Bank on cash flow, were never provided. Hassell was also increasinglyinaccessible to the Bank. On 17 December 2010 the Bank with Lopez in Aruba. Lopez said that Hassellwas in Miami doing the activities of Aqua Spa to sell. This shot the Bank in the wrong way because theywould lose almost all of its securities would be. In this context, a role that the credit agreement pledgingof shares in HJC Realty SA was not implemented because Meru Real Estate Investments SA owns noshares which turned out to be more. Aqua Spa was therefore less than pledged to which it wasconnected. It then requested mortgage is not provided.The Bank ultimately the credit relationship terminated by letter dated 21 December 2010 and the nextday her pledge exercised. The manager of the spa itself decided to clients to send home and close to thespa. The goods were in agreement with the manager left in the spa.Only after exercise of the lien is contacted Riffort and Renaissance. In order to set is therefore noquestion. The Bank also drawing no interest, because they now face a claim of over Naf. 1.2 millionremains. It is also not unusual for a foreclosure auction property below market value are sold, so that noindication for a one-two punch can be.The Bank has been in all not acted unlawfully towards Aqua Spa. After the agreed securities were notprovided, there was insufficient information given, the loan and interest were not paid and Hassell wasdoing the business of selling. The cancellation of the credit relationship and enforcement of the lien wastherefore not unlawful.For a main condemnation of the Bank and Renaissance Riffort is no reason. Not shown is why the Bankwould be liable for damage caused by Riffort and Renaissance.Hassell and Lopez argue that the Bank also acted wrongfully towards them.The Bank disputes the lack of knowledge that Hassell and Lopez shareholder of Aqua Spa. Furthermore,it follows from the case law that the shareholder does not claim accrues because the legal person toclaim damages must. Of acting contrary to the shareholder in respect of the private care required is noquestion, so that the progress of Hassell and Lopez this rebound.
  • 8. The Bank disputes the extent of the damage. The loss of profit is based on the business of Deloitte &Touch, but this refers only expectations in clinical practice are never fulfilled. The alleged investmentsare insufficiently substantiated. In addition, various items that are not staged investment, which doublebooked or private property concerns.The Bank is in no way enriched. The basis of the claim against the Bank flawed, still according to theBank.Court verdict english page 23.4. The Bank relieszic h at offsetting its claim on Aqua Spa, Hassell and Lopez. This claim, the Bankcounterclaimed set. Due to the failure of Aqua Spa is the procedure counterclaim suspended.3.5. At its claims against Riffort and Renaissance Aqua Spa cs at the following foundations.Riffort and Renaissance oaths make significant investments Aqua Spa at the spa, in order to meet firestandards of Renaissance. The architect of Renaissance Riffort and also served to authorize theconstruction and the interior of the spa. The lease included therewith also the construction andoperation of the spa. The lease included therewith also the construction and operation of the spa.Riffort and Renaissance also undertook towards Aqua Spa for the spa guests under the promotion.Furthermore, there is a walkway from the Renaissance hotel will be constructed to provide direct accessto the spa for guests to realize. Riffort Renaissance and its commitments regarding promotion failed.The walkway is eventually realized, but it did not go directly to the spa and was also closed by a gatethat only by an often absent guard Renaissance could be opened. As a result, the spa guests andinsufficient customer received and is in financial trouble, which ultimately leads to the cancellation ofthe credit relationship with the bank led.On December 22, 2010 Riffort the lease immediately opgezeged. Access to the Spa Aqua Spa staff wasdenied by Riffort and Renaissance. The cancellation is not valid, because Aqua Spa betalingsverplichtigenmet her. Moreover, the consent of the Rental obtained.Riffort Renaissance and have at least a malpractice tort committed against Aqua Spa by the agreementson promotion and the walkway or insufficient to meet. Furthermore, the lease wrongfully terminatedimmediately and were employees of the Aqua Spa Spa Access denied. All this is unlawful to Aqua Spaand also towards Hassell and Lopez, now Riffort and Renaissance knew that they were personallyguaranteed the debt of Aqua Spa.Riffort and Renaissance finally unjustly enriched by being a ready-made spa lap got that meets thestandards of Renaissance.De enrichment consists of the investments made in the leased said still AquaSpa cs3.6. Riffort and Renaissance have their defense the following. Riffort has under the lease the spapromoted, as they all resort facilities promotes. An appointment for specific and active marketing of thespa by Riffort or Renaissance was no question that served Aqua Spa yourself.
  • 9. Aqua Spa also shows that they are not self sufficient marketing has made towards hotel guests and localcustomers or guests of other hotels.The walkway between the Riffort and the Renaissance Hotel is realized. It is incorrect that the walkwaywas closed, there is a guard that opens the door on presentation of a room pass.Riffort the lease terminated because the Bank had exercised its lien and the spa had closed its doors.Without Aqua Spa activities would not generate income and would therefore not be able to pay therent. Riffort told her other tenants obligation to avoid empty. Continuation of the activities of Aqua Spawas given the poor financial poisitie, not imminent. The termination of the lease is not altogethercontrary to the reasonableness and fairness.The Rent Control (hereafter; HCR) also does not apply to the rented space, because the rented part of ahotel and hotels are not within the scope of the HCR fall. Renaissance and Riffort there was no need totake into account the fact that Hassell and Lopez were responsible for their ability Aqua Spa. Breach of astandard of care is therefore no question.The business of Aqua Spa cs based on incorrect assumptions about the number of rooms, the sales, thestaff and the overall margin. The plan is thus from the outset been unrealistic. Wrongly believes AquaSpa cs any loss of profit to claim Renaissance and Riffort. If anything is to be recovered, it could never bemore than the turnover of residents of Renaissance would, therefore 30% of the revenues as estimatedin the business plan. Also, the calculation of the profit does not take into account the possibility that thelease after five years would not be extended. Of unjust enrichment does not apply. Riffort by theinvestment of Aqua Spa not enriched. Riffort has incurred costs to the rented Renaissance to rent.Riffort has also not be able to charge higher rents in the Renaissance. As though there would be anenrichment can not be equated with the investments of Aqua Spa, not to mention that it is unclear whatamount now invested in the spa, says Riffort.Renaissance is not the owner of the rented. Renaissance should Riffort monthly rent to pay and shouldalso invest a substantial amount in order to use the leased property. Renaissance is not enriched, saysRenaissance.3.7. The positions of the parties is below, where relevant, in more detail.The assessment of the dispute.In conventionThe cancellation of the credit relationship and the exercise of the right of pledge by the Bank.4.1 It is assumed that under the terms and conditions in the credit agreement, the credit relationship inprinciple at any time by the Bank may be terminated. It is a bank are not free to do this at will. Therequirements of reasonableness and fairness may, because of the circumstances of the case it wouldonly be to terminate a valid termination of the contract leads, if a sufficiently weighty grounds fortermination exists. For a bank applies that they are related to the social function of banks has a special
  • 10. duty of care, such as the Bank in its terms and conditions listed. The scope of that duty depends on thecircumstances of the case. A credit denunciation implies that at least they will have to comply withrequirements of proportionality and subsidiarity. Finally, apply to the court the decision of the bank inprinciple restraint will serve to evaluate because he cannot take the place of banker.4.2 It is clear that Aqua Spa at the time of termination has long been in default in respect of theperformance of its obligations under the credit agreement. The interest and repayments were in factnot paid. It also found the agreed collateral only partly be provided. The pledged shares HJC had alreadysold the pledge and the mortgage on the apartment in Jardines del Mar is never provided. It wastherefore the benevolence of the Bank due to Aqua Spa still got respite in order to find new investorsand its financial house in order to get. The various letters of the Bank in this context speak volumes.Already on October 2, 2009, the former financier Orco Bank Aqua Spa in default, because the promisedan agreed security were not provided. Even after the assignment was providing the security off. On July22, 2010, the Bank Aqua Spa in default in respect of the redemption - and interest obligations, providingfinancial data and provide security. This will be further emphatically to the attention of Aqua Spa cc.s. byletter of 6 October 2010, in which the Bank - among others - the following message Aqua Spa cs; "We inform you That You remainning in default with the agreement with the Bank (...). You havenot made a concrete concrete counter offer to start paying on the account. The company Remains onleveraged for the current level of operation and does require a major capital injection. (...) Please notethat the Bank does consider That You remainning in default and we request That your pay off the bankin full by no later than November 15, 2010 Unless we can arrive at a new agreement by That Time Allwhich will entail but not limited to a new payment schedule and acceptable collateral. That we trust youwill take due note of this letter. 4.3 Given this wording and the previous letters can be no doubt that the Bank in October 2010 by thesituation very seriously and her patience with Aqua Spa cs its end. Not available or has been shownsubsequently sufficient security has been provided an acceptable payments are followed or furtherpayment arrangements. Nor has shown that Aqua Spa, the Bank requested financial information (full)has provided concrete or investors have been submitted. In that light, it is therefore by no meansinconceivable that the Bank credit relationship on December 21, 2010 with immediate effect has ended.It had indeed already Aqua Spa for December 21, 2010 should be clear that the credit only hung by athread. Under the circumstances, the termination with immediate effect not conflict with requirementsof proportionality and subsidiarity. Of action by the Bank in violation of the reasonableness and fairnessor fulfill its duty of care is therefore no question. This applies less to the Bank now has a period of twoweeks and Hassell Lopez - in their position as guarantor - is permitted to assume the obligations of AquaSpa obligations. The termination of the credit relationship is under the aforementioned conditions notunlawfully against Hassell and Lopez.That the ultimate reason for the Bank to the credit relationship to say possibly a misunderstanding,namely the communication Lopez that Hassell in Miami was to sell the company, while Lopez claims to
  • 11. only have meant that Hassell with investors in conversation , does not affect the foregoing. The cause ofthe termination of the credit relationship is the absence of principal and interest due, failure to providecollateral and not (fully) for access to the financial data, on which defects Aqua Spa cs once and againbeen highlighted by the Bank, but who nevertheless were not retrieved.4.4. Nor is it illegal for the Bank immediately its lien on the inventory of spa exercised. The Bankpossessed because of insufficient collateral and therefore had the collateral that they are ad as soon aspossible to invoke. No rule is that preclude lien without prior notice to the debtor is exercised.4.5. Aqua Spa cs accuses the Bank still they the spa on December 22, 2010 - season for the spa - hasclosed, while they reached that conclusion was not entitled. This reproach bounce off on its ownassertion that Hassellcs Aqua Spa already on December 23, 2010 the Bank has understood that theexercise of the pledge not to operate the spa in the way of having to stand. The fact that a continuationof the spa has not subsequently take place because the staff of Aqua Spa access was denied by Riffortand Renaissance, can not be invoked against the Bank.4.6. Aqua Spa csaccuses the Bank finally that there would be one - two punch between the Bank on theone hand and other hand Riffort and Renaissance. Aqua Spa cs see such evidence in the fact that thecontents of the spa for a song to Renaissance is sold and furthermore that Renaissance is now a spa inthe rented operates. Although the Court palpable note that Aqua Spa cs the current situation as suchexperiences, the Court sees no evidence of foul play between the Bank and Riffort and Renaissance. Notfound what importance the Bank thereby would have, especially now retrospectively must be notedthat the Bank with a strong claim is left. That the Bank has sold furniture below market value, is certainlynot uncommon in foreclosure auctions. The fact that Renaissance is now a spa in the rented operates, isindependent of the Bank and its therefore cannot be invoked. The argument therefore fails.4.7. Given the above, the claims of Aqua Spa cs to the Bank must be rejected.Acting Riffort and Renaissance4.8. Aqua Spa csRiffort accusation that they rent in conflict with the provisions of the Rent Control(hereafter; HCR) has terminated. Article 17a paragraph 1 of the HCR provides that this regulation doesnot apply to hotels. The question thus arises as to whether the spa part of the Renaissance Hotel. In thisregard, the following conditions are of importance. The leased property is situated in the Rif Fort.Besides the Rif Fort is the Renaissance Hotel. The Rif Fort and the Renaissance hotel operated bydifferent companies (Riffort and Renaissance), but are - as explained put part of the same group ofcompanies. The Rif Fort and the Renaissance hotel linked by a walkway. The spa is mentioned on thewebsite of Renaissance hotel as the hotels spa. The website of the spa Aqua Spa dubbed as"Renaissance Aqua Spa, the official Spa of the hotel. . On the signposting in the Rif Fort marked AquaSpa, is also the logo of the Renaissance Hotel.The foregoing, all this in context and considered together, lead to the conclusion that the spa was partof a publicly known as a unit complex, a resort. The spa must therefore be regarded as situated in ahotel under (Article 17a of the now former HCR) Article 7a Article 7, 24 BW, BW 274. The fact that the
  • 12. spa is accessible for non hotelguests, is of sufficient weight to that judgment to do. The conclusion isthat the UNHCR does not apply to the lease between Aqua Spa and Riffort, so the argument Aqua Spa csthat the termination in violation of the UNHCR, should be rejected.4.9. According Aqua Spa csRiffort and Renaissance briefly unlawfully against her acted promotionagreements not to comply, the lease at the first opportunity to terminate and employees of Aqua Spaaccess to the spa to deny, to eventually own the spa across take.4.10. Riffort and Renaissance are part of the same group of companies. The Rif Fort, owned by Riffort, isactually closely related to the Renaissance Hotel, owned by Renaissance. Indirectly director of bothcompanies is the spring, which according to the court documents also occurs for both companies. Theinterconnectedness is further demonstrated by the fact that the lease is entered into between Riffortand Aqua Spa, but (apparently by mistake) was signed by Renaissance. Also from the contents of thelease follows that Riffort and Renaissance were closely involved, now it is stated that the spa must meetthe standards of fire Renaissance. Finally, reference is made to what has been considered as to whetherthe Riffort established in the spa part of the Renaissance Hotel. Based on the foregoing, the science ofone company may reasonably be attributed4.11. Both the lease as from the note of the former director of Renaissance and Renaissance that Riffortto Aqua Spa cs have committed to the spa to promote. The intention was, according to the memo to thespa an integrated part of Renaissance making. Part of these agreements was marketing and customerservice, which specifically in the memo indicated the initiatives in this area should be undertaken.Furthermore, it was agreed that a bridge would be built, which is in line with the desired integrationbetween the spa and the hotel was. Renaissance and Riffort thus have an obligation to itself to the spato promote and integrate as part of the hotel. The theorem of Renaissance and Riffort that there was nospecific requirement promotion of the spa is therefore passed.4.12. Now the spa is not in the hotel but in the Rif Fort is located, may in the area of promotion more ofRenaissance and Riffort be required than when the spa is located within the walls of the hotel waslocated. The spa is in terms of visibility and accessibility indeed at a disadvantage compared to otherhotel facilities, which also plays a role that has the potential clients of a facility as a luxurious spa is nottoo difficult to be made in order to reach the spa. The agreements therefore having to be seen in thatlight. It may be that the promised spa menus in the rooms is not ultimately come due to fire standardregulations and furthermore that there is little or no signs in the hotel were referring to the spa.Moreover, the direct line from the spa rooms have not come, that the staff of Aqua Spa has received notrainig of Renaissance, that access to the spa from the hotel by a gate was closed and Aqua Spa of thefence, despite repeated request, no key was. Finally, it is undisputed that remained its own promotionalactivities of Aqua Spa, as the sign at the elevator, on resistance of Riffort and Renaissance encountered.4.13. Aqua Spa cs has repeatedly when Riffort Renaissance and brought to the attention that theagreements on promotion were not met. The requests and proposals from Aqua Spa cs, however eachof the rejected and prior commitments have been put on hold or canceled. Illustrative in this respect isthe - uncontested - comment I will not lift a finger to help you De Veer (indirectly) driver Riffort and
  • 13. Renaissance, made by Hassell on 18 March and repeated on October 1, 2010. From this communicationFeather could infer that Riffort Aqua Spa and Renaissance promotion agreements would not comply. Anotice could therefore be omitted.4.14. Based on the foregoing, it is concluded that Renaissance and Riffort to insufficient efforts topromote the spa. That does not alter the fact that Aqua Spa cs possible self promotion could have donemore, as has been argued by Riffort and Renaissance.ourt Verdict English page 34.15. Aqua Spa cs reproach Riffort Renaissance and subsequently hire in violation of the lease isterminated and wrongly to employees of Aqua Spa access the spa is denied. In accordance with Article31.1 of the lease is entitled Riffort let directly to say when attachment is a conservation reserve Thursor distress is leveled on the movable or immovable goods of the Tenant. This provision can only bepassed if this teopassing to standards of reasonableness and fairness is. According Riffort is the scope ofthe provision that the tenant after exercising a lien may not be able to continue to conduct its businessand consequently its obligations under the lease will no longer be able to fulfill. The landlord does thedefault of the tenant not to wait, but can let directly to say, according Riffort.4.16. In the present case, the Bank exercised its lien on the Goods of the Company. This was notnecessary for the operation of the spa in the way that bears on December 23, 2010 Aqua Spa is alsoconfirmed by the Bank. The danger Aqua Spa no longer meet its obligations to Riffort could meet,manifested therefore not immediately on December 22, 2010. This is especially true now undisputedthat Aqua Spa until that moment had no rent arrears and also the Christmas holidays at the door stood,which is a busy time for the spa would be. It was therefore in the way of Riffort and Renaissance locatedin conversation with Aqua Spa cs to the current situation in detail and any additional agreementsconcerning the rent payments to make before the lease to an end and the staff at the spa access to thespa to deny. This is particularly so Riffort and Renaissance there were aware of that Aqua Spa substantialinvestments had been made to the spa to comply with fire standards of Renaissance. Riffort andRenaissance also knew, or at least they should understand that these investments in December 2010 byno means could be recouped. In addition to Riffort Renaissance and their obligation to the spa topromote not least onvoeldoende been discharged, as considered above, so that they themselves hadaffected the viability of Aqua Spa.All these circumstances together make a profession of Riffort to Article 31.1 of the lease to standards ofreasonableness and fairness, so it must be held that the rent in violation of the lease is terminated andwrongly spa access is prevented . The let directly to an end and the staff of Aqua Spa deny admissionhave Riffort and Renaissance people have proved themselves the interests of Aqua Spa cs insufficient toattract, which unlawful towards Aqua Spa csRiffort Renaissance and are thus liable for damage cs AquaSpa has suffered. The chances of a successful operation of the spa Aqua Spa cs by Riffort andRenaissance deprived.
  • 14. Unjust enrichment4.17. With regard to the question whether a tenant is entitled to compensation under unjustenrichment for changes he at the end of the lease has not removed, it should be provided that thequestion only can be answered affirmatively if special circumstances warrant. In this case plays a rolethat Aqua Spa spa in such a manner that the spa must design meets the standards of Renaissance. AquaSpa purpose was under lease obligation. Furthermore, Aqua Spa in the twenty months that the spa hasbeen open,cannot recover its investments, which at Riffort and Renaissance must have been clear.Moreover, Riffort the rented now rents to Renaissance, also a spa in the rented operates.4.18. All this may be true, but that does not mean that the lease provides that the tenant nocompensation is due for things that the tenant has applied and after termination of the lease has notremoved. Aqua Spa has no business removed. Riffort subsequently charges made by certain Aqua Spacases before removing and Renaissance, in turn, have to invest to the spa to her liking.4.19. All things considered, the Court considers that special circumstances have proved insufficient togive rise to the award of compensation to Aqua Spa on the grounds of unjust enrichment. It was on theway from cs Aqua Spa located at the conclusion of the agreement a fee in respect of its investments tostipulate, in case the contract (prematurely) would be terminated. By failing to do so, Aqua Spa cs therisk that its investment would accrue to the landlord on termination of the lease. That situation has nowachieved. It was also on the way of Aqua Spa located to the year made changes to the property toremove the termination of the lease. Not stated or shown that Riffort and Renaissance that hasprevented. Now Aqua Spa has failed cases brought by her to take away and also did not negotiate withRiffort and Renaissance on a purchase price, it can notRiffort Renaissance and argue that the latter usethe remaining cases. The claim based on unjust enrichment will therefore be rejected.Damage4.20. Aqua Spa cs that their damage includes loss of profit of $ 5,289.960, investments NAF1,952,000.00, paid bail of $ 25,000, payable to third parties of $ 102,618.63 and NAF. 201,436.97 andcosts of consultants NAF 34,065.29.4.21. The Court considers it likely that Aqua Spa cs damage. Assessment of damage, the Court considersat this stage may be insufficient, especially now audited accounts of Aqua Spa lacking and insufficientinsight into the survival of Aqua Spa, tucked thought the wrongful conduct of Riffort and Renaissance.Partly for reasons of procedural economy, the Court willRiffort Renaissance and therefore pay damagesfurther assessed by state.4.22. Riffort and Renaissance will if the losing party to the proceedings of Aqua Spa cs be condemned.These costs are estimated to date at NAF. 8.198.26 to advances (NAF. 7,500 in court fees includedtherein) and NAF. 18.300, - to authorized salary (3 points rate x 11 ad NAF. 6.100, - per point).4.23. The claims against the Bank will be rejected. Aqua Spa cs will if the losing party to the proceedingsof the Bank be condemned. These costs are estimated to date at NAF. 18.300 - Agents of salary (3 points
  • 15. rate x 11 ad NAF. 6.100, -). The advanced legal interest on the costs will be allocated from two weeksafter service of the judgment.Counterclaim4.24. Having regard to the suspension of the procedure, all decisions made in the counterclaim bedetained.The DecisionThe Court;In convention5.1. rejects the claims against the Bank off.5.2. condemns Aqua Spa cs in the proceedings, on the part of the Bank to date estimated at NAF. 18.300- Agents of salary, plus statutory interest from two weeks wet service of this judgment;5.3. declares that the lease between Riffort and Aqua Spa at December 22, 2010 by unlawful Riffort isterminated;5.4. declares that Riffort Renaissance and wrongfully towards Aqua Spa cs acted.5.5. condemns Riffort and Renaissance jointly, so that if and when one pays the other will be freed topay the damages, plus statutory interest, which Aqua Spa cs by this unlawful act have suffered andstates that this damage detail will be made by the court and will be settled according to the law;5.6. condemns Riffort Renaissance and severally, so if and when one pays the other will be released inthe proceedings, on the part of Aqua Spa cs to date estimated at 8,198.26 in disbursements and NAFNAF. 18.300 Agents in salary;5.7. declares this judgment regarding the costs convictions under 5.2 and 5.6 enforceable.5.8. denies any further or other claims.Counterclaim5.9. takes all decisions on.This judgment was given by Mr. P.W. van Schendel and in the presence of the Registrar in public onFebruary 18, 2013.

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