Amendment of the Presumed Dividend in the Collocation Procedure and its Impact on the Amount in Dispute

Facts

In this case, the Masse en faillite ancillaire de Sabena SA (Plaintiff) filed a collocation claim against the bankruptcy estate of SAirGroup AG in liquidation (Defendant) with the District Court of Zurich. For the purpose of determining the amount in dispute, the District Court initially assumed a presumed bankruptcy dividend of 12.5%. However, in the first-instance judgment, the estimated dividend was increased to 18%, upon which the District Court adjusted the amount in dispute accordingly.

The Plaintiff appealed the judgment, whereupon the Higher Court set the amount in dispute at 362 million Swiss francs and the ordinary court fee at 1.88 million Swiss francs. The Plaintiff then filed a civil law appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that, in the calculation of the amount in dispute in the collocation procedure according to federal law, the presumed bankruptcy dividend at the time of filing the claim is generally decisive. Subsequent changes in the dividend estimate are not to be taken into account, as they do not alter the subject matter of the dispute.

The Higher Court had therefore wrongly set the amount in dispute based on the 18%…