Facts
The [X. GmbH] in Liquidation, defendant and appellant, and the [Y.] Corporation, plaintiff and respondent, disputed the removal of liquidator [A.] . The [Y.] Corporation filed a petition with the District Court of Bülach to remove [A.] as liquidator of [X. GmbH] and to appoint an independent third party as liquidator. The District Court decided to remove [A.] as managing director and liquidator of the defendant. The CO of the Canton of Zurich confirmed this decision.
The defendant appealed and requested that the decision of the CO be overturned and the action for removal of the liquidator be dismissed. The plaintiff requested that the appeal be dismissed or not entertained and the contested decision be confirmed.
Considerations
The Federal Court examined the appealability of the decision and found that the first requirement, namely that the contested decision concerns a civil law dispute, was met. It further assumed that it was a final decision within the meaning of Art. 48 FJA, as the cantonal court had finally decided on the disputed claim.
The Federal Court reviewed the decision of the lower court as to whether [A.] 's behavior could be considered as an important reason for his removal within the meaning of Art. 741 para. 2 CO. It found…