1. Field Sea sued the Foundation and lawyer for interim relief after paying €672,000 to the Foundation's account for a financing agreement but not receiving repayment when requested. 2. The court previously ordered the Foundation to repay €304,940.30 to Field Sea but it was not paid. The lawyer stated the money was transferred to a Swiss bank account. 3. The court ruled in favor of Field Sea, ordering the lawyer and Foundation to pay €304,940.30 into a Dutch account meeting accounting regulations within a week, and prohibited transferring the money without Field Sea's approval. Penalties were imposed for noncompliance.

1. instance Utrecht District court
date of judgment 04-07-2002
date of publication 05-07-2002
Case number 146267 / KG ZA 02-537
jurisdictions Civil rights
Special characteristics Interim measures
Special characteristics Interim measures
content Display
-
Repositories Rechtspraak.nl NJ
2002, 433
Pronunciation
COURT UTRECHT
(Sector commercial and family)
V is O N N I S of the court in the
case of short-
the private company with limited liability FIELD SEA
BV in Brielle, i e s e r e s,
Attorney:. EH Young-Wiemans, counsel: KHL Waas
Mountain Hellevoetsluis.
- against -
1. Foundation FOUNDATION FUNDS MANAGEMENT THIRD LAW FIRM [the lawyer] CS, located in [place]
released by its president [the lawyer]
2. [the lawyer], living in [], appeared in person, g e d a a g e d n.
ECLI: NL: RBUTR: 2002: AE4952

2. 1. The course of the procedure,
1.1. Plaintiff, hereinafter also called "Field Sea ', has Defendants, hereinafter also referred to as' the Foundation' and '[the lawyer]' do sue for interim
relief. On serving day, June 20
2002 Field Sea has concluded requirement according to the writ of summons, a copy of which is annexed to this judgment.
1.2. Field Sea has hearing do illustrate its claim, partly on the basis of production and pleading. On that occasion it has increased its claim as
mentioned below.
1.3. The foundation and the [attorney] thereon have defense implemented, partly on the basis of production and a pleading.
1.4. Then asked verdict.
1.5. Counsel for Field Sea sent on June 25, 2002 letter with a copy of a letter from Field Sea to the court of his June 25, 2002. This letter shows that a
copy of the letter from Field Sea also [the lawyer] is sent.
2. The established facts
2.1. Between Field Sea hand and Greystone Financial Services in Woerden (hereinafter "Greystone"), a client of [the lawyer], on the other hand is a
financing agreement on or about December 18, 2001 for the purchase by Field Sea of ​​two ships. Field Sea is implementing that agreement paid a sum of
| 672,000.00 on account [account] in the name of the Foundation.
2.2. writes in a letter dated December 17, 2001 [the lawyer] to Field Sea:
"This I must inform you that the funds under a financing agreement between my client Greystone (...) and your company Field Sea BV under my
foundation management Derdengelden, particularly on account [account] will be paid and by the Foundation for Derdengelden firm [the lawyer] will be
held for Field Sea BV by this Foundation (...).
First request Field Sea BV The Foundation will proceed to return the funds, but not before 1 April 2002. "
2.3. Field Sea has | 672,000.00 deposited on said bank account of the Foundation. Field Sea Greystone however has stated on April 16, 2002 given to
terminate the financing agreement and called on the Foundation to reimburse the amount paid. However, reimbursement is forthcoming.
2.4. The judge of this court by order of April 22, 2002 at the request of Field Sea Foundation ordered to refund within 24 hours of notification of the
judgment in the amount of € 304,940.30 (672,000.00 ƒ). The judge submitted among other contemplated that the Foundation against Field Sea that was
no reason to consider an independent obligation to repay the legal relationship between Field Sea and Greystone and that was the condition under
which Field Sea could recover her deposit amount .

3. 2.5. By fax of April 25, 2002 wrote [the lawyer] to the counsel of Field Sea: "I have let you know to be able to meet conformity statement to a
repayment obligation (...) I told you that among my trust. Derdengelden the amount released in Switzerland. Under Article 4 [meant is clearly
Article 3, paragraph 4, Add contact. judge] "bookkeeping 1998 'funds are transferred when the opportunity arises to do so, ie once the foreclosure
order to pay no longer exists. "
2.6. Article 3 paragraph 4 of the Accounting Regulation 1998 of the Dutch Bar Association (Regulation of September 22, 1998, Government
Gazette 1998, 207) states:
"The lawyer will ensure that the monies standing by his actions be made under a Derdengelden Foundation to the beneficiary when the
opportunity arises."
2.7. writing by fax of April 25, 2002 [the lawyer] to the counsel of Field Sea: "While this letter is worked out, I'm (...) by facing a bailiff with a seizure
under the Stichting Beheer Derdengelden [the lawyer] CC commissioned Greystone (...). I am sorry, but the foundation can and should you even
do not pay more liberating. "
2.8. By fax of April 26, 2002 writes the Dean of the Bar Association in the district of Utrecht, the counsel of Field Sea and [the lawyer]
"Mr. [the lawyer] is (...) obliged to go on immediate repayment and in this connection I call on Mr. [The lawyer] on April 25 this year. Agreed about
12:10 pm
- that he give me the same day would show through evidence that the relevant sum of money is still held by the Stichting Beheer
Derdengelden and
- has Mr. [the lawyer] is then required again unconditionally against me externals to repay the total amount in accordance with the verdict. "
Dean then lodged a complaint held by the Board of Discipline, which is meeting on June 10, 2002.
3. The claim and the defense
3.1. Field Sea claims, after increase of the claim, in essence:
a. an order requiring [the lawyer] and the Foundation to make the accounts with respect to the account of the Foundation paid sum of what they have
done with the amount and where it is now, primarily to Field Sea alternative to the Dean of the Bar Association in the district of Utrecht, and in as much
as deemed necessary to provide access to all documents and computer records, primarily on pain of imprisonment against [the lawyer], the alternative
penalty of a fine of €
200,000.00 per day;
b. Primary: an order requiring [the lawyer] and the Foundation Open (do) a joint bank account with the Foundation Derdengelden the counsel of Field
Sea and to deposit a sum of € 304,940.30 on that account;
alternatively, an order requiring [the lawyer] and the Foundation to deposit this amount to a Dutch bank account of the foundation that meets the
bookkeeping 1998

4. so with the submission of supporting documents and a copy of the statutes;
one on pain of forfeiture of a penalty of € 200,000.00 per offense if they fail to meet them;
and [the lawyer] and the Foundation jointly ban to transfer the amount paid to another account or record, on penalty of a fine of €
500.000.00 per violation.
3.2. Field Sea performs in support of its claim that [the lawyer], in his capacity as sole board member on behalf of the Foundation, despite the
commitment in his letter of December 17, 2001 at Field Sea the amount paid by the amount of € 304,940.30 on first request to repay despite
condemnatory judgment of the court on april 22, 2002 and despite the commitment to the Dean to have refunded the amount by april 26, 2002, yet
nothing ever repaid. also [the lawyer] said Field Sea, despite its commitment to do so to the Dean, to date, still has no access given what happened to
the paid amount of money and whether it is still under the foundation. Now the Foundation, says Field Sea, moreover, does not meet the does the
bookkeeping 1998 foundations monies requirements Field Sea an interest in the money in any case be paid into an account of a foundation that meet
them. Based on the foregoing has Field Sea, as it claims, and legal interest in the requested facilities.
3.3. [Lawyer] performs at verwere briefly the following:
a. Now Field Sea was not represented at the meeting (other than by its lawyer) doubts [the lawyer] or authorizes Field Sea sees the conduct of the
proceedings.
b. [Lawyer] has learned that take place between Greystone and Field Sea negotiations, so the expectation is justified that action be deferred to him (the
complaint and these proceedings submitted to the Dean). to keep [the lawyer] requests in this regard the case.
c. [Lawyer] has already reported to the Board of Discipline, where the money is today, he has shown a letter dated June 5, 2002 from a Swiss bank
to him confirming that an amount of € 305.000,00 bank the Foundation holds.
d. [Lawyer] recognizes that the foundation - now - does not meet the relevant requirements, but argues that there is established a new foundation on
April 26, 2002 to meet them.
4. Assessment of the dispute
4.1. The letter above is under 1.5 [Director of Field Sea], wrote to counsel for Field Sea:
"Following the objection by Mr. JJ [the lawyer] of your proxy to vote on behalf Field Sea BV at the hearing of June 20, 2002 the summary proceedings
against the trust Derdengelden Firm [the lawyer] cs and Mr. Jan Jaap [ lawyer] to persevere and therein modify the requirement in accordance with what
stated in your advocates note, I confirm as a fully qualified Director of Field Sea BV, Field Sea BV has granted instructs and authorizes them. the burden
and proxy is not crossed by the fact that there are now between Field and Sea BV Greystone Trust AG discussions started about an amicable settlement.
"
From this it appears that the above-letter has to be rejected mentioned under a defense.
4.2. It is further contemplated that been convicted by a judgment of April 22, 2002 the Foundation at the request of Field Sea to repay the amount of €
304,940.30. In such a judgment has been already considered

5. it was no reason to take account of the legal relationship between Field and Sea Greystone. Any negotiations with Greystone do the judgment under
existing obligation of the Foundation against Field Sea not finish thus. In any case, neither has been shown that Field Sea at any time - to [the lawyer] -
has promised that her claim would be suspended at the Foundation. Now there is therefore no reason to keep this interim order, such as [the lawyer] and
the Foundation asked the question fails defense.
4.3. It is undisputed that [the lawyer] has promised Field Sea by letter dated December 17, 2001 that he will repay the amount paid on the first request.
Furthermore, the court, by order of April 22, 2002 condemned the Foundation for the refund within 24 hours of notification of that decision. also [the
lawyer] promised Dean that he would repay the sum by April 26 2002. It is common ground that [the lawyer] and / or the Foundation have ever failed to
meet that requirement, despite the fact that [the lawyer] repeatedly, also at the hearing of this application for interim measures, has stated that the money
still under Foundation exists - albeit now on behalf of a Swiss bank - and that he is able to pay (although there is currently placed under the foundation
occupied by Greystone).
4.4. [Lawyer] did not dispute that the Foundation which money is paid does not comply with the bookkeeping in 1998, in the sense that the Foundation
does not have at least two jointly competent board (but only [the lawyer]) and it is not fulfilled two signature requirement. [Lawyer] has however argued in
this context that there is already established a new foundation that meets those requirements and taking on the duties and requirements of the
Foundation. The Foundation should only said [the lawyer] bank accounts to be applied.
4.5. Now [the lawyer] the amount of money - unlike his letter suggests of December 17, 2001 - has not let on Rabobank account number mentioned in the
letter are but apparently has transferred to a Swiss bank account, now [the lawyer] fails the money to pay back and now [the lawyer] nor Field Sea nor the
Comforter (despite its commitment to do so) showed evidence showing where the money is now, act [the lawyer] and the Foundation in the opinion of the
judge against Field Sea unlawful. Expect may indeed be that one in a trust account of a lawyer paid amount is properly managed in accordance with the
rules established by the Dutch Bar Association and transit or redeemed at the first request of the payer. It is undisputed that [the lawyer] did not do so.
In this connection, it is contemplated that, unlike [the lawyer] has argued, the fact that the money could be released immediately from Zwisterse bank
account did not constitute a hindrance to pay which can be invoked against Field Sea, [the lawyer] can will not claim that the opportunity to pay in
accordance with Article 4 paragraph 3 of bookkeeping did not occur yet.
4.6. In view of the foregoing, the Field Sea, in any case, right and interest in ensuring that the amount of money to the extent that in connection with it can
be reimbursed by the agency of Greystone Laid-batter in fact not meet Field Sea - is held in a manner in accordance with the established for that purpose
rules. Now [the lawyer] in court expressly stated that a foundation Derdengelden is allocated to satisfy the above-mentioned alternative b claim on
bookkeeping 1998 as follows. The requested ban, to book then again the amount of recording can be.
4.7. Field Sea has, if the amount of money under this award will be managed in accordance with the bookkeeping and will be held at the Dutch bill, still
made insufficient interest in the accounts as requested. The advanced under a will therefore

6. be rejected.
4.8. In view of the foregoing shall be resolved as follows. [Lawyer] and the Foundation will be judged as the largely unsuccessful party to pay the
costs. In addition, there is insufficient reason to impose a higher than usual legal costs, as requested by Field Sea.
4. The decision
The judge:
5.1. condemns defendants jointly and severally to one week after service of this judgment to pay the sum of € 304,940.30 to a Dutch bank account that
meets the bookkeeping 1998, in the name of Stichting Beheer Derdengelden of Firm [the lawyer] and others, which foundation also satisfies the
bookkeeping 1998 so supported by the presentation of an original attachment of the relevant Dutch bank both of the reception of said amount as to the
fact that for the bank account subject to a two-signature requirement in accordance with the accounting regulation, and by the production of a copy of the
Statute of the Stichting Beheer Derdengelden;
5.2. then prohibits defendants jointly and severally to the amount without written approval from Field Sea or the Dean of the Bar Association in the district
of Utrecht again about booking to another bank account or record;
5.3. provides that [the lawyer] and the Foundation jointly forfeit a penalty of € 50,000.00 per day if not (completely) fulfilled the conviction under 5.1 and €
305.000,00 if it is violated in 5.2 prohibition;
5.4. provides that these penalties are subject to moderation, as far as enforcement standards of reasonableness and fairness, so also taking into account
the degree of compliance with the judgment, the gravity of the offense and the degree of culpability of the offense ;
5.5. condemns defendants jointly and severally, the one paying the others will be released in the costs on the part of the plaintiff cases and to date
estimated at € 703.00 for the attorney's fees, court fees and € 193,00 € 65.18 writ costs;
5.6. declares this judgment enforceable;
5.4. pointing out the more advanced ones.
Thus given by mr. GAME van der Burg of spirit and pronounced in public on July 4
2002.
wg wg court clerk