Facts

Parties: Appellant: [A. GmbH] , Respondent: Foundation [C.]

Lower Court: Appellate Court of the Canton of Basel-Stadt, Panel of Three Judges

Federal Supreme Court: II. Civil Law Division

Date of Judgment: 29 October 2019

Facts:

  • On 4 January 2019, the Foundation [C.] filed a bankruptcy petition against [D. GmbH] .
  • On 9 January 2019, [D. GmbH] paid the claim including interest and costs.
  • On 18 March 2019, the shares of [D. GmbH] were taken over by [B.] , and the company name was changed to [A. GmbH] .
  • On 19 March 2019, [E.] accepted the summons to the bankruptcy hearing.
  • On 2 April 2019, bankruptcy was declared over [A. GmbH] as no one appeared at the bankruptcy hearing.
  • The [A. GmbH] filed an appeal against the bankruptcy decision and submitted the account statement of the enforcement office from 9 January 2019.
  • The Appellate Court set aside the bankruptcy decision but imposed court costs of CHF 600.-- on [A. GmbH] and did not award party compensation.
  • [A. GmbH] filed an appeal in civil matters with the Federal Supreme Court to set aside the costs order.

Considerations

The appeal in civil matters is admissible against the decision of an appellate authority that, as the highest cantonal court, has ruled on the opening of bankruptcy proceedings (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. d and Art. 75 para. 2 FSCA). The appellant, as the debtor, is sufficiently affected by the decision on the annulled bankruptcy opening with regard to the costs order and is therefore entitled to appeal (Art. 76 para. 1 lit. b FSCA).

The lower court set aside the bankruptcy decision but imposed the procedural costs on the appellant for failing to clarify the facts to the bankruptcy court. The appellant argued that the authorities should have taken into account their payment to avoid an appeal procedure.

The bankruptcy decision can be challenged within ten days by appeal under the CPC (Art. 174 para. 1 DEBA; Art. 319 lit. a CPC). The procedural costs are determined according to the…