Facts
The bankruptcy estate of X. AG (the appellant) sued Y. AG (the respondent), which acted as the auditor for X. AG in the year 2000. X. AG claimed that the respondent had breached its duties as the auditor by unconditionally approving an excessive dividend distribution of 28.5 million Swiss francs to the sole shareholder of X. AG.
X. AG was a 100% subsidiary of B.Z. AG until the end of 2000, which was then taken over by C.Z. AG in 2001. Y. AG was the auditor of X. AG and the Z. Group in 2000. In 2000, X. AG reported a profit of 43.67 million Swiss francs, and after deducting the accumulated losses, a balance sheet profit of around 29.17 million Swiss francs remained. The Board of Directors of X. AG proposed to the General Meeting to distribute a dividend of 28.5 million Swiss francs. The respondent confirmed the legality and compliance with the articles of association of this proposal in its audit report dated April 12, 2001. The General Meeting then resolved to distribute the proposed dividend, which was credited to the sole shareholder on June 28, 2001.
X. AG claimed that the dividend should have amounted to only 6.77 million Swiss francs if the loans to group companies had been properly recognized as equity. The respondent had unlawfully confirmed the legality of the dividend, which was 21.73 million Swiss francs too high. Furthermore, X. AG had missed out on 4.068 million Swiss francs in higher bankruptcy dividends in the bankruptcy of the group's leading company D.Z., as the unlawfully distributed amount was no longer available in the cash pool.
Considerations
The Federal Supreme Court overturned the judgment of the lower court and remanded the case for a new assessment by the Commercial Court. It reached the following conclusions:
Firstly, the lower court could not assume that the disputed dividend distribution could have been legally made in the form of an interim dividend or a dividend in kind. This would be contrary to the principles of capital protection and the prohibition of the…