Facts

Parties:

  • Appellant: [A. GmbH] , represented by attorney Nirmala Maya Dias
  • Respondent: Foundation [B.] , represented by attorney Dr. Dominik Schmid and/or attorney Rahel Bahrampoori

Facts:

  • [A. GmbH] applied to the Commercial Court of the Canton of Zurich for the provisional registration of a builder's lien in the amount of CHF 33,094.90 (plus interest) against the property of the Foundation [B.] .
  • The Commercial Court dismissed the application with a decision of 20 September 2022 and instructed the land registry office to delete the provisionally registered lien after the unused expiry of the appeal period.
  • [A. GmbH] then filed an appeal with the Federal Supreme Court and applied for the provisional registration of a lien in the amount of CHF 32,664.10.

Main issue:

  • [A. GmbH] claims to have carried out construction work from 10 January 2022 to 18 March 2022, which falls under a contract dated 6/10 January 2022, as well as additional supervisory work.
  • The Commercial Court held that [A. GmbH] had not sufficiently substantiated its claims and therefore had not met the burden of proof.

Considerations

The Federal Supreme Court examines the appeal exclusively under the aspect of alleged violations of constitutional rights, namely the prohibition of arbitrariness (Art. 9 Cst.).

The appellant alleges a violation of the right to be heard (Art. 29 para. 2 Cst.; Art. 6 para. 1 ECHR) by the Commercial Court, in that the latter disregarded her substantive submissions in the application of 14 July 2022 as well as the newly submitted evidence. The Federal Supreme Court concludes that this complaint is unfounded, as the appellant went beyond the correction of formal deficiencies with her supplements and thus did not make any substantive additions to her application.

The Federal Supreme Court then examines whether the finding of the Commercial Court, according to which the appellant in her application of 6 July 2022 neither sufficiently alleged nor substantiated the contractually agreed work nor the existence and amount of her claim for…