Facts
On October 27, 2003, the General Meeting of [Y. AG] elected X. AG as the auditor. It exercised its function until the opening of the bankruptcy proceedings over [Y. AG] on November 22, 2004. Previously, [Z. AG] had performed the function of the auditor.
By a claim filed on October 21, 2011, [Y. AG] in liquidation requested the Commercial Court of the Canton of Zurich to order X. AG to pay it CHF 445,800.- plus interest at 5% since November 22, 2004. The plaintiff claims compensation for the damage caused by the allegedly negligent activity of the defendant as the auditor.
In its statement of defense dated March 23, 2012, X. AG requested the dismissal of the claim and filed a motion for the admission of third-party notice actions against [Z. AG] and a former member of the Board of Directors of [Y. AG] in liquidation. X. AG denies the alleged breaches of duty attributed to it by the plaintiff and considers itself entitled to recourse against the former member of the Board of Directors of [Y. AG] in liquidation as well as against [Z. AG] for any compensation to be paid.
By decision of July 3, 2012, the Commercial Court allowed the third-party notice action against the former member of the Board of Directors of the plaintiff, but not the third-party notice action against Z. AG.
Considerations
The Federal Supreme Court upholds the appeal of X. AG against the decision of the Commercial Court. It states that the Commercial Court wrongly refused to allow the third-party notice action against Z. AG.
According to the Federal Supreme Court, for the admissibility of the third-party notice action under Art. 81 and 82 CPC, it is only necessary to examine whether the claim asserted in the third-party notice action depends on the existence of the main claim. This is the case with recourse claims…