Uitspraak
judgment
AMSTERDAM DISTRICT COURT
Netherlands Commercial Court
NCC District Court
Case reference number: NCC 20/019 (C/13/687852)
Judgment
9 December 2020
Claimant
[claimant],
residing in Manila (the Philippines),
lawyers: R.Q. Potter and M.L. Hovens, Amsterdam,
versus
Defendants
1.the private company with limited liability
DEBX MEDICAL HOLDING B.V.,
with registered office in Amsterdam
(the Netherlands), and
2.the private company with limited liability
DEBX MEDICAL B.V.,
with registered office in Amsterdam
(the Netherlands),
lawyer: D.A.J. Sturhoofd, Amsterdam.
The parties are referred to below as [claimant] , Debx and Debx Medical respectively.
1.Procedural history
1.1.
[claimant] submitted a writ of summons with exhibits on 13 July 2020.
1.2.
On 26 August 2020, Debx and Debx Medical filed their statement of defence and (conditional) counterclaim, with exhibits, and a motion for interim measures pursuant to Article 223 Dutch Code of Civil Procedure (DCCP).
1.3.
[claimant] filed his statement of defence against the motion and against the (conditional) counterclaim on 12 October 2020, with exhibits.
1.4.
[claimant] submitted additional exhibits on 15 and 27 October 2020.
1.5.
The Court requested Debx, Debx Medical and [claimant] to express their views on their choice of the NCC in the choice of forum clause which the parties had agreed to. The parties did so in writing in letters dated 14 and 19 October 2020 respectively.
1.6.
The hearing was held on 28 October 2020. The lawyers pleaded their cases. Their pleading notes were submitted in eNCC in advance of the hearing. At the request of the parties, the hearing was held in Dutch. A court record of the hearing was made in Dutch.
1.7.
At the hearing, the parties reached an agreement about a substantial part of [claimant] ’s claim. Debx and Debx Medical also confirmed that they would withdraw the motion for interim measures as well as the (conditional) counterclaim.
1.8.
By letter of 10 November 2020, Debx and Debx Medical's lawyer
inter aliaconfirmed that EUR 84,012.43 had been paid to [claimant] .
inter aliaconfirmed that EUR 84,012.43 had been paid to [claimant] .
1.9.
On 19 November 2020, [claimant] 's lawyer acknowledged receipt of the payment of EUR 84,012.43 and amended [claimant] ’s claim accordingly.
1.10.
On 25 November 2020, Debx responded to the last letter of [claimant] , opposing the amended claim.
1.11.
The case was set for judgment today.
2.The facts
2.1.
On 2 October 2019, [claimant] and [X] ( [X] ) entered into a memorandum of understanding (MOU) with Debx. In the MOU, [claimant] , [X] and Debx agreed to cooperate in the field of marketing, distribution, production and sales of certain chronic wound care products of Debx and Debx Medical (the Debx products) in the Philippines and other Asian countries. Pursuant to the MOU, [claimant] was required to make an advance payment to Debx of USD 100,000.00. [claimant] paid EUR 90,950.00 on 4 October 2019. Upon Debx’s request, this payment was made to Debx Medical, a wholly-owned subsidiary of Debx.
2.2.
In the MOU, [claimant] further agreed
inter aliato incorporate two companies in the Philippines: a production company and a distribution company. In addition, [claimant] agreed to effect the official registration of the Debx-products with the Food and Drug Administration (FDA) of the Philippines.
inter aliato incorporate two companies in the Philippines: a production company and a distribution company. In addition, [claimant] agreed to effect the official registration of the Debx-products with the Food and Drug Administration (FDA) of the Philippines.
2.3.
[claimant] engaged a local lawyer in the Philippines, Mr R.R. Suarez (Suarez), for the incorporation of the two companies and for assistance with respect to the FDA registration. By email dated 25 September 2019 to the legal advisor of Debx, [A]
( [A] ), with copy to [X] and to the CEO and director of Debx, [B]
( [B] ), [claimant] wrote as follows:
( [A] ), with copy to [X] and to the CEO and director of Debx, [B]
( [B] ), [claimant] wrote as follows:
"(…)
Voor het oprichten van de twee companies in de Filipijnen hebben we 5 incorporators nodig. Ik stel voor jij, [B][the Court: [B] ]
, [X][the Court: [X] ]
en ik en als vijfde vraag ik mijn Filippijnse advokaat. Is dat ok wat jullie betreft (…)."
, [X][the Court: [X] ]
en ik en als vijfde vraag ik mijn Filippijnse advokaat. Is dat ok wat jullie betreft (…)."
2.4.
[claimant] wrote to [A] by email dated 23 October 2019 (copy to [B] and [X] ) as follows:
"(…)
Please find attached the articles of incorporation and by-laws of first the distribution company (…).
We have decided to let Butch[the Court: Suarez]
and all attorneys of his office first be the incorporators and directors as we all(you, [B][the Court: [B] ]
, [X][the Court: [X] ]
and me) don't want to be liable at first with selling and marketing a product that might not be officially FDA registered yet. (…)."
and all attorneys of his office first be the incorporators and directors as we all(you, [B][the Court: [B] ]
, [X][the Court: [X] ]
and me) don't want to be liable at first with selling and marketing a product that might not be officially FDA registered yet. (…)."
2.5.
For the purpose of marketing and selling the Debx products in Asia, [claimant] hired a website builder to set up a website. In this regard, [X] wrote to [B] by email dated 2 October 2019 (copy to [claimant] and [A] ), as follows:
"(…)
We hebben een beeldvorming hoe we de Asia DEBx website kunnen opmaken. [claimant][the Court: [claimant] ]
zal
zal
- als de marketing pitbull onder ons - tekst selectie maken hoe hij denkt dat het in Asia (en wellicht bruikbaar voor heel de wereld) eruit zou kunnen zien.
Komen binnen 1 week terug met de eerste opzet. (…)."
2.6.
By email dated 5 October 2019, [claimant] wrote to [B] (copy to [A] and [X] ) as follows:
"(…)
We are presently building our DEBx Asian Website which will be ready after one week.
For our Website Category: Future Products, we would like to receive some information (write-up) on the possible future products you want us to produce and sell in Asia (…)."
2.7.
In response to an email of [X] dated 14 October 2019, which included a first draft of the Debx Asia website, [B] wrote to [X] , by email of the same date, as follows:
"Amazing work [X][the Court: [X] ]
,
,
(…)
Will study attentively and give you the feedback
(…)."
2.8.
By email dated 15 October 2019, [B] wrote to [X] (copy to [A] and [claimant] ) as follows:
"(…) My opinion as mentioned: great but now we must get some detaisl (sic!
) worked out and have the texting sharp, for this reason, I am asking [C] (…) to comment and provide some further details and perhaps optimization on the communication front. (…)."
) worked out and have the texting sharp, for this reason, I am asking [C] (…) to comment and provide some further details and perhaps optimization on the communication front. (…)."
2.9.
On 15 January 2020, the website builder, Aquont8 Business Solution, sent an invoice to [claimant] , with the following description:
"Description Amount
DEBx Corporate Website Design (10xpages) $2,985.00
Website Content (10ximages, 10xpages, Logo) $2,860.00
Website add-ons (Forms/Lead generation, Image/Video gallery, Analytics/Tracking, Social Media) $3,850.00
DEBx Web hosting and Maintenance (yearly) $455.00
Design and Printing DEBx Calling Cards $850.00 Subtotal $11,000.00
Total $11,000.00 USD
(…)."
2.10.
The final sentence of clause 9.4 of the MOU states the following:
"The Company shall bear the professional fees, that in connection with the contemplated cooperation are made and will be made for this cooperation."
2.11.
On 27 April 2020, Debx unilaterally terminated the MOU.
2.12.
On 30 April 2020, Suarez sent an invoice to [claimant] for his legal services for an amount of PHP 1,475,000.00. The invoice contains the following description of services:
"Consultation, study and research re: product registration (…) with the Food and Drug Administration (FDA); various meetings with client, FDA consultants and doctors; meeting with consultant re: application for an import license with the Bureau of Customs; establishment of two (2) domestic corporations, i.e. one for the importation of the product and another for the marketing and distribution; other services.
Period covered: 10 October 2019 to 15 April 2020."
2.13.
After Debx had terminated the MOU, [claimant] , by email dated 29 April 2020, claimed EUR 92,000 from Debx as repayment of the advance payment he made on 4 October 2019. In a letter dated 8 May 2020, [claimant] ’s lawyer claimed repayment of an amount of USD 100,000.00 and also claimed reimbursement from Debx for the costs [claimant] had incurred, amounting to USD 29,500.00 for lawyer's fees and USD 11,000.00 for the creation of the website (in total USD 40,500.00). In response, Debx claimed that on the basis of Article 6:52 of the Dutch Civil Code (DCC) it had the right to suspend repayment of the advance payment, proposing simultaneous actions by both parties. In doing so, Debx made the repayment of the advance payment conditional upon the return of all confidential information regarding
inter aliathe Debx products that had been made available to [claimant] , including 28 test samples (ampoules) of the wound care product called “ [the product] ”. Debx based this claim on the confidentiality clause in the MOU and on the Non Disclosure Agreement that Debx Medical and [claimant] had entered into prior to the MOU. Debx also requested confirmation (supported by a written statement from an IT expert or an accountant) that [claimant] did not retain any copies of the data and that [claimant] would maintain confidentiality in all other respects. Debx also disputed the payment of the incurred costs.
inter aliathe Debx products that had been made available to [claimant] , including 28 test samples (ampoules) of the wound care product called “ [the product] ”. Debx based this claim on the confidentiality clause in the MOU and on the Non Disclosure Agreement that Debx Medical and [claimant] had entered into prior to the MOU. Debx also requested confirmation (supported by a written statement from an IT expert or an accountant) that [claimant] did not retain any copies of the data and that [claimant] would maintain confidentiality in all other respects. Debx also disputed the payment of the incurred costs.
2.14.
[claimant] was unwilling to discuss Debx’s demands and initiated these legal proceedings against Debx and Debx Medical in which (re)payment of EUR 88,604.60 (or the euro equivalent to USD 100,000.00) and reimbursement of incurred costs was claimed. On its part, Debx requested the Court (by motion for interim measures and (conditional) counterclaim) to order [claimant] to observe confidentiality regarding all confidential information Debx had provided to him and to return and/or destroy all such information and have an accountant confirm this. It also claimed the return of the 28 ampoules.
2.15.
By email dated 16 July 2020 to Debx’s and Debx Medical’s lawyer, [claimant] sent a Dropbox link, by which link data that had been made available to him by Debx and Debx Medical pursuant to clause 8 of the MOU was returned. In addition, [claimant] returned the 28 ampoules to Debx on 8 October 2020 (received by Debx on 12 October 2020). [claimant] also provided an affidavit from an accountant, dated 12 October 2020, in which the accountant confirmed - briefly stated - that all confidential information that was made available by Debx to [claimant] had been permanently deleted from [claimant] ’s computer and other (electronic) carriers, including (cloud) servers.
2.16.
At the hearing, [claimant] and Debx reached an agreement: upon [claimant] ’s confirmation that (i) he would maintain confidentiality regarding all information from Debx and (ii) all emails and copies of data (hardcopy and digital) that had been made available to him by Debx, had been either returned or destroyed, Debx committed to no longer suspend its obligation to repay the advance payment of USD 100,000.00 to [claimant] . In this respect, the parties agreed that the advance payment in euros that was held in the third party bank account of Debx’s lawyer, an amount of EUR 84,012.43, would be paid to [claimant] . This was documented in the court record of the hearing.
2.17.
On 19 November 2020, [claimant] ’s lawyer confirmed the receipt of EUR 84,012.43 and amended his claim accordingly.
3.The claim
3.1.
[claimant] requests the Court, after amendment of his claim, by means of a judgment that insofar as possible is provisionally enforceable, to order:
Primarily:
(i) Debx to pay to [claimant] , within two working days of service of the judgment to be given in this case, (a) the sum of EUR 6,937.57, being the difference between EUR 90,950.00 [claimant] paid on 4 October 2019 and EUR 84,012.43 [claimant] received on 29 October 2020 and (b) the sum of EUR 35,884.86 (or the euro equivalent of USD 40,500.00), plus statutory interest on (a) and (b) from 27 April 2020, alternatively from the date of the writ of summons, until the date of payment in full, and statutory interest on EUR 84,012.43 from 27 April 2020, alternatively from the date of the writ of summons, until 29 October 2020;
Alternatively:
(ii) Debx Medical to pay to [claimant] , within two working days of service of the judgment to be given in this case, the sum of EUR 6,937.57, being the difference between EUR 90,950.00 [claimant] paid on 4 October 2019 and EUR 84,012.43 [claimant] received on 29 October 2020, plus statutory interest on EUR 6,937.57 from 27 April 2020, alternatively from the date of the writ of summons, until the date of payment in full, and statutory interest on EUR 84,012.43 from 27 April 2020, alternatively from the date of the writ of summons, until 29 October 2020; and
(iii) Debx to pay to [claimant] the sum of EUR 35,884.86 (or the euro equivalent of USD 40,500.00), plus statutory interest thereon from 27 April 2020, alternatively from the date of the writ of summons, until the date of payment in full; and
Primarily and alternatively:
(iv) Debx and Debx Medical to pay the costs of these proceedings, increased by any subsequent costs in the amount of EUR 131.00 in case service of the judgment to be given in this case can be omitted, or in the amount of EUR 199.00 in case service of the judgment in this case proves necessary, to be paid within fourteen days after the date of the judgment to be given in this case, and - in case payment of the (subsequent) costs does not take place within the payment term stated above - to be increased by the statutory interest on the (subsequent) costs to be calculated as from the payment term stated above.
3.2.
Debx and Debx Medical oppose the claim.
3.3.
Insofar as relevant, the parties' arguments will be discussed in more detail below.
4.Discussion
Jurisdiction of the NCC and applicable law
4.1.
In clause 10 of the MOU, [claimant] and Debx designated the Commercial Court in Amsterdam as the forum to hear their case (choice of forum clause). This means that the Amsterdam District Court has jurisdiction under Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). On the basis of the lawyers’ letters of 14 and 19 October 2020 (see above, sub 1.5.) and considering the fact that all documents submitted in these proceedings (except for the pleading notes) have been written in English, the Court understands that with clause 10 of the MOU, the parties had intended these proceedings to be held in English before the NCC. All other requirements for the NCC to deal with the case, mentioned in Article 30r DCCP and in Article 1.3.1 of the NCC Rules of Procedure (NCCR), are also met.
4.2.
The Court also has jurisdiction to deal with the (alternative) claim against Debx Medical as this claim is interrelated with and almost identical to the primary claim against Debx. In addition, Debx Medical entered an appearance and did not object to the jurisdiction of this Court.
4.3.
Clause 10 of the MOU stipulates that the agreement is governed by Dutch law. Furthermore, it is clear from the parties' arguments in these proceedings that they consider Dutch law to be applicable. Dutch law will be applied.
Amended claim with respect to the advance payment
4.4.
[claimant] and Debx agree that Debx is obliged to pay back the advance payment of USD 100,000.00. However, [claimant] claimed payment of this amount in another currency: euros. He communicated three different amounts in euros to Debx:
- i) in his email dated 29 April 2020, [claimant] claimed EUR 92,000.00;
- ii) in his writ of summons dated 13 July 2020, [claimant] claimed EUR 88,604.60 or the euro equivalent of USD 100,000.00;
- iii) in his amended claim, [claimant] claims EUR 6,937.57 (see above, sub 3.1.).
4.5.
The Court assumes that [claimant] calculated the abovementioned amounts in euros on the basis of different exchange rates. In the absence of an exchange rate that the parties have agreed on, the conversion of an amount in US dollars into an amount in euros should be calculated on the basis of the exchange rate on the day of the payment (Article 6:124 DCC). At the court hearing, the parties agreed that Debx would repay the advance payment of USD 100,000.00 in euros on that day (28 October 2020) and Debx undisputedly stated that the amount held in the third party bank account of Debx’s lawyer, EUR 84,012.43, was the euro equivalent of USD 100,000.00 on this date. Although [claimant] received payment of this amount (in euros) on 29 October 2020, the Court assumes, lacking any facts or circumstances that dictate otherwise, that the euro-dollar exchange rate on that day was the same as on 28 October 2020.
Consequently, [claimant] has received the advance payment in full and the additional EUR 6,937.57 as requested by [claimant] in its amended claim, is denied.
Any decrease in the actual value due to fluctuations in exchange rates is (in principle) at the expense of [claimant] as creditor. [claimant] has failed to file a claim for damage he may have suffered as a consequence thereof. The Court does not consider [claimant] ’s amended claim as a claim for damages relating to exchange rate changes as it lacks substantiation to that effect.
Statutory interest on the advance payment
4.6.
[claimant] claims the statutory interest on EUR 84,012.43 from 27 April 2020, alternatively from the date of the writ of summons, until 29 October 2020. The Court will allow this claim as of 6 May 2020 until 29 October 2020, based on the following considerations.
4.7.
Debx has always recognised its obligation to repay the advance payment of USD 100,000.00.
Debx already did recognise this obligation on 1 May 2020, shortly after it had terminated the MOU, in response to [claimant] ’s demand email of 29 April 2020 in which repayment of the advance payment in euros was claimed. [claimant] claimed payment before 6 May 2020 at the latest. He did not agree to payment in (four) instalments, as was subsequently proposed by Debx. Debx had no right to suspend repayment on the basis of its claim that [claimant] had a reciprocal obligation to
inter aliareturn all confidential information pursuant to the MOU and the Non Disclosure Agreement (see above, sub 2.13.). This obligation was not yet due when [claimant] demanded payment (and Debx recognised its obligation to do so). The Non Disclosure Agreement stipulates that such obligation only arises after Debx’s written request to that effect. This request was first made on 14 May 2020, in an email of Debx’s lawyer, at which time Debx was already in default with respect to its obligation to repay the advance payment. Although Debx stated at the court hearing that the Non Disclosure Agreement should be disregarded in this respect, it did not explain why. The mere fact that the confidentiality clause in the MOU states that confidential data should be returned if the contemplated cooperation between the parties is not completed, does not in itself justify Debx’s suspension of the repayment either.
Debx already did recognise this obligation on 1 May 2020, shortly after it had terminated the MOU, in response to [claimant] ’s demand email of 29 April 2020 in which repayment of the advance payment in euros was claimed. [claimant] claimed payment before 6 May 2020 at the latest. He did not agree to payment in (four) instalments, as was subsequently proposed by Debx. Debx had no right to suspend repayment on the basis of its claim that [claimant] had a reciprocal obligation to
inter aliareturn all confidential information pursuant to the MOU and the Non Disclosure Agreement (see above, sub 2.13.). This obligation was not yet due when [claimant] demanded payment (and Debx recognised its obligation to do so). The Non Disclosure Agreement stipulates that such obligation only arises after Debx’s written request to that effect. This request was first made on 14 May 2020, in an email of Debx’s lawyer, at which time Debx was already in default with respect to its obligation to repay the advance payment. Although Debx stated at the court hearing that the Non Disclosure Agreement should be disregarded in this respect, it did not explain why. The mere fact that the confidentiality clause in the MOU states that confidential data should be returned if the contemplated cooperation between the parties is not completed, does not in itself justify Debx’s suspension of the repayment either.
4.8.
From the above it follows that Debx was required to repay the advance payment no later than 5 May 2020. This means that Debx has been in default of payment as of 6 May 2020 until payment was made in full, i.e. on 29 October 2020 (see above, sub 4.5.). Consequently, Debx will be ordered to pay the claimed statutory interest on EUR 84,012.43 covering that default period pursuant to Article 6:119 DCC, as the advance payment does not arise from a commercial contract in the context of Article 6:119a DCC between [claimant] and Debx.
Debx Medical
4.9.
The Court concludes that, after the amendment of [claimant] ’s claim and the Court’s rejection of his claim to pay a further EUR 6,937.57 and the withdrawal of the motion and counterclaim of Debx, [claimant] lacks an interest in its alternative claims against Debx Medical, which will therefore be dismissed.
Incurred costs
4.10.
[claimant] claims payment of EUR 35,884.86 (or the euro equivalent of USD 40,500.00), consisting of USD 29,500.00 in lawyer's fees and USD 11,000.00
for the creation of a website. [claimant] argues that these costs have been incurred solely for the purpose of the contemplated cooperation, in accordance with clause 9.4 of the MOU (see above sub 2.10.), and should be borne by Debx. As Debx unilaterally terminated the contemplated cooperation with [claimant] , it should bear the consequences of the termination and reimburse [claimant] for the costs he incurred.
for the creation of a website. [claimant] argues that these costs have been incurred solely for the purpose of the contemplated cooperation, in accordance with clause 9.4 of the MOU (see above sub 2.10.), and should be borne by Debx. As Debx unilaterally terminated the contemplated cooperation with [claimant] , it should bear the consequences of the termination and reimburse [claimant] for the costs he incurred.
4.11.
Debx argues that the costs [claimant] claims must be rejected for the following reasons. Debx states that it was never informed that it was necessary to engage a lawyer for the registration of Debx products in the Philippines and that no assignment or approval was given by Debx for the claimed activities of the lawyer. Debx further states that it never received any document from the lawyer either. According to Debx, it was only aware of the fact that costs would be incurred for the incorporation of two local companies. Because Debx has not become a shareholder in either one of these companies, as contemplated in the MOU, Debx argues that it is under no obligation to pay the lawyer’s fees. Debx also disputes the amount of the costs claimed and states that no specification was attached to the invoice of the law firm.
The same applies to the invoice of the website builder, according to Debx. Debx states that the building of the website was commenced without prior consultation of Debx and was not
approved. In addition, Debx states that the draft version of the website presented was riddled with errors and that it took Debx a great deal of effort to correct the proposed content. Apart from that, a Debx website was already operational and a translation of the website for the Asian market would have sufficed. Therefore, the amount of USD 11,000.00 is completely disproportionate, according to Debx.
4.12.
The Court will partially allow the claim for incurred costs, based on the following considerations.
Lawyer's fees
4.13.
The emails dated 25 September 2019 and 23 October 2019 from [claimant] to Debx (see above, sub 2.3. and 2.4.) make clear that Debx was aware of the fact that [claimant] had engaged a lawyer (Suarez) for the purpose of the contemplated cooperation: the sale, distribution and production of the Debx products in the Philippines. In pursuit of the contemplated cooperation,
inter aliatwo companies had to be incorporated in the Philippines, one for the production and one for the distribution of Debx products. In this regard, articles of incorporation and by-laws for the distribution company were drafted (by Suarez’s firm) and sent to Debx, as one of its envisaged shareholders. The lawyer’s fees incurred by [claimant] for these legal services are recognised as such by Debx and Debx did not bring forward any facts or circumstances that could lead to the conclusion that [claimant] or Suarez was asked by Debx to terminate these legal services.
inter aliatwo companies had to be incorporated in the Philippines, one for the production and one for the distribution of Debx products. In this regard, articles of incorporation and by-laws for the distribution company were drafted (by Suarez’s firm) and sent to Debx, as one of its envisaged shareholders. The lawyer’s fees incurred by [claimant] for these legal services are recognised as such by Debx and Debx did not bring forward any facts or circumstances that could lead to the conclusion that [claimant] or Suarez was asked by Debx to terminate these legal services.
4.14.
It is further undisputed that in order to produce, sell or distribute the Debx products in the Philippines, as contemplated in the MOU, these products needed to be registered with the FDA. As follows from the affidavit of Suarez (see below, sub 4.16.), numerous meetings with the FDA as well as various government agencies - such as the Bureau of Customs and the Bureau of Internal Revenue - which required legal assistance, were necessary to enable this. This was not, or at least insufficiently, disputed by Debx. Debx only stated that [claimant] had presented himself as an expert in the field of registering a product in the Philippines (and its production) and that (therefore) Debx expected him to arrange for the necessary approvals on his own. Given, however, the complexity of the process of obtaining an approval of medical devices and given the fact that [claimant] is not a Philippine lawyer, Debx should reasonably have understood that – even if [claimant] presented himself as a specialist – this in itself did not imply he could obtain the approval all by himself, without being advised by Philippine lawyers. In this respect, the Court notes that [claimant] was also accompanied and assisted by Suarez during his and Debx’s meeting with an FDA representative and several doctors from the Philippines in January 2020. Debx did not question or complain about his (Suarez’s) presence and assistance there either.
4.15.
Considering the above facts and circumstances, the Court finds that Debx (at least implicitly) consented to the engagement of a lawyer for the purpose of the contemplated cooperation between the parties, not only regarding the incorporation of the two companies but also with regard to the FDA registration of the Debx products. As Debx has not disputed in general its liability under the MOU for professional costs incurred by [claimant] in connection with the contemplated cooperation, the Court concludes that [claimant] can claim the related lawyer’s fees from Debx. The mere fact that Debx has not become a shareholder in either one of the incorporated companies, does not change this conclusion. It cannot be excluded that this is only due to the fact that Debx unilaterally terminated the MOU before this could be effected.
4.16.
Debx disputes the amount of the costs claimed. [claimant] did not submit an hourly specification of the lawyer’s invoice. He only submitted an affidavit, dated 21 September 2020, in which Suarez stated:
"(…)
4. Sometime in October 2019, the Law Firm, through the undersigned, was asked to organize and register two (2) domestic corporations (…) the Law Firm was likewise tasked to assist [claimant] in registering [the product] with the Food and Drug Administration (FDA) to enable the sale, distribution and use thereof in the local market. For a period of about seven (7) months from October 2019 to April 2020, the Law firm set up numerous meetings with its FDA and GMP consultants and various government agencies such as the FDA, the Securities and Exchange Commission, the Bureau of Customs, the Philippine Economic Zone Authority, the Bureau of Investments and the Bureau of internal Revenue, among others.
(…)
6. On 23 January 2020, I was invited by [claimant] to attend a business dinner meeting at one of the restaurants at the EDSA Shangri-la Hotel. Said meeting was attended by, among others, three (3) leading wound care doctors in the Philippines, [B] , one of the inventors of [the product] , an FDA Expert, and others.(…)
(…)."
4.17.
Failing an hourly specification of the services rendered by the lawyer, the Court cannot determine whether the amount for legal fees claimed by [claimant] is correct. By analogy with Article 7:405(2) DCC, the Court can however determine a reasonable fee for the legal services rendered by Suarez. Taking into account the actions [claimant] had to undertake pursuant to the MOU and the legal services Suarez mentioned in the affidavit, which covered a period of about seven months, and considering his hourly rate of PHP 15,000.00 (approximately EUR 264.00), as stated by [claimant] during the hearing, the Court finds
USD 15,000.00 to be a reasonable fee for the lawyer’s services. It will order Debx to pay this amount to [claimant] to reimburse him for lawyer’s fees incurred.
USD 15,000.00 to be a reasonable fee for the lawyer’s services. It will order Debx to pay this amount to [claimant] to reimburse him for lawyer’s fees incurred.
Invoice of the website builder
4.18.
As follows from the emails dated 2, 5, 14 and 15 October 2019 (see above, sub 2.5 through 2.8.), Debx was aware that [claimant] and [X] had a website made for the purpose of the contemplated cooperation in Asia. In said emails dated 14 and 15 October 2019, Debx complimented [X] on the first set-up of the website (
'amazing work') and made comments to its substance as well. This means that not only did Debx approve that [claimant] and [X] had a website built, but also that Debx participated in the creation of this new website. Debx’s argument that a Debx website was already operational, is not supported by facts and cannot be upheld. The circumstance that the content of the website had to be corrected by [B] from a medical point of view, does not alter the fact that (website) building costs were incurred by [claimant] . Except for the costs for 'Web Hosting and Maintenance (yearly)' and 'Design and Printing Debx Calling Cards', as referred to in the invoice of the website builder (see above, sub 2.9.), the Court considers the remaining
'amazing work') and made comments to its substance as well. This means that not only did Debx approve that [claimant] and [X] had a website built, but also that Debx participated in the creation of this new website. Debx’s argument that a Debx website was already operational, is not supported by facts and cannot be upheld. The circumstance that the content of the website had to be corrected by [B] from a medical point of view, does not alter the fact that (website) building costs were incurred by [claimant] . Except for the costs for 'Web Hosting and Maintenance (yearly)' and 'Design and Printing Debx Calling Cards', as referred to in the invoice of the website builder (see above, sub 2.9.), the Court considers the remaining
USD 9,695.00 - regarding the design and content of the website, as well as add-ons - reasonable. The costs for 'Web Hosting and Maintenance' cannot be allowed, because the launching of the website was cancelled. Furthermore, the costs for 'Design and Printing Debx Calling Cards' are insufficiently substantiated. It is unclear whether calling cards were made. Therefore, these costs are rejected by the Court. In conclusion, the Court finds that Debx should bear the costs of the website builder, limited to USD 9,695.00.
Conclusion
4.19.
Since Debx did not dispute in general its liability for the costs incurred by [claimant] for purposes of the contemplated cooperation and because the Court sees no reason to decide otherwise, the Court will grant [claimant] ’s claim for incurred costs. For the above reasons, the court will grant the claim to an amount of (the euro equivalent of) USD 24,695.00 (USD 15,000.00 + USD 9,695.00).
The statutory interest claimed by [claimant] pursuant to Article 6:119a DCC cannot be allowed. The incurred costs do not arise from a commercial contract in the context of Article 6:119a DCC between [claimant] and Debx. Therefore, the Court will award the statutory interest due under Article 6:119 DCC on the sum of the incurred costs of USD 24,695.00. The statutory interest cannot be allowed as of 27 April 2020, the date of the termination of the MOU. [claimant] has insufficiently substantiated that the incurred costs were due at that time. Therefore, the statutory interest will be allowed from the date of the writ of summons, 13 July 2020.
The statutory interest claimed by [claimant] pursuant to Article 6:119a DCC cannot be allowed. The incurred costs do not arise from a commercial contract in the context of Article 6:119a DCC between [claimant] and Debx. Therefore, the Court will award the statutory interest due under Article 6:119 DCC on the sum of the incurred costs of USD 24,695.00. The statutory interest cannot be allowed as of 27 April 2020, the date of the termination of the MOU. [claimant] has insufficiently substantiated that the incurred costs were due at that time. Therefore, the statutory interest will be allowed from the date of the writ of summons, 13 July 2020.
4.20.
Debx, as the more unsuccessful party, will be ordered to pay the costs. The cost order is based on the NCC rates to assess lawyers' fees (see Annex III to the NCC Rules).
The costs on the part of [claimant] are set at:
- writ of summons (costs of service) EUR 83.38
- court fee EUR 15,377.00
- lawyers' fee
EUR 6,000.00(3 x EUR 2,000.00)
EUR 6,000.00(3 x EUR 2,000.00)
total amount EUR 21,460.38
Furthermore, the post-judgment costs (
nakosten) will be allowed plus statutory interest (Article 6:119 DCC) on (all) the costs of these proceedings, as stated in the decision.
nakosten) will be allowed plus statutory interest (Article 6:119 DCC) on (all) the costs of these proceedings, as stated in the decision.
5.Decision
The Court:
5.1.
orders Debx to pay to [claimant] , within five working days after the date of this judgment, the statutory interest on EUR 84,012.43 (pursuant to Article 6:119 DCC) from 6 May 2020 until 29 October 2020,
5.2.
orders Debx to pay to [claimant] , within five working days after the date of this judgment, the sum of (the euro equivalent of) USD 24,695.00, plus statutory interest thereon (pursuant to Article 6:119 DCC) from 13 July 2020 until the date of payment in full,
5.3.
orders Debx to pay to [claimant] the costs of these proceedings, set at EUR 21,460.38, plus statutory interest thereon (pursuant to Article 6:119 DCC) with effect from the fifteenth day after the date of service of this judgment until payment is made in full,
5.4.
orders Debx to pay to [claimant] the post-judgment costs estimated at EUR 131.00 for lawyer's fees, plus - if Debx has not complied with the judgment within five working days after the date of this judgment and subsequent service of the judgment was necessary - an amount of EUR 68.00 in lawyer's fees and the statutory interest on these lawyer’s fees as referred to in Article 6:119 DCC, with effect from the fifteenth day after the date of service of this judgment until payment is made,
5.5.
declares this judgment enforceable notwithstanding appeal,
5.6.
dismisses any other claim.
Done by D.M. Staal, C.W.D. Bom and A.C. Bordes, Judges, assisted by A. Hut, Clerk of the Court.
Issued in public on 9 December 2020.
APPROVED FOR DISTRIBUTION IN eNCC
THE SIGNED ORIGINAL IS IN THE HARD COPY FILE
SIGNATURE PAGE 1 OF 2
D.M. STAAL
(PRESIDING JUDGE)
SIGNATURE PAGE 2 OF 2
CLERK OF THE COURT