Repayment of a loan by the SAirGroup considered as an avoidable transaction

Facts

The SAirGroup (hereinafter referred to as SAir or the appellant) granted a money market loan to Bank Z. AG (hereinafter referred to as Z. or the respondent) since 1999. In June 2001, Z. demanded the repayment of the loan, whereupon SAir fully repaid the loan of CHF 50,006,388.90 including interest on June 29, 2001. The next day, SAir was granted provisional composition proceedings, which were later converted into definitive proceedings.

In a claim filed on November 18, 2005, SAir requested, based on Art. 288 DEBA, the conviction of Z. to repay the amount of CHF 50,006,388.90 plus interest. The Commercial Court of the Canton of Zurich dismissed the claim, and the appeal against this decision was also dismissed by the Cassation Court of the Canton of Zurich.

Considerations

The Federal Supreme Court set aside the judgment of the Commercial Court and ordered Z. to pay CHF 50,006,388.90 plus interest. It concluded that the repayment of the loan by SAir is to be considered as an avoidable transaction.

The Federal Supreme Court stated that the impairment of the other creditors' rights of enforcement was given, as the repayment of the loan cannot be regarded as equivalent consideration. Furthermore, the intent to impair the creditors on the part of the SAir management had to be affirmed, as they were aware of the company's catastrophic…