No restoration of time limit for reasoning of a dissolution judgment where public service in the cantonal official gazette was lawful

Facts

The appellant ([A. AG] in liquidation) is a company limited by shares under Swiss law which has since March 2020 carried the suffix 'in liquidation'. Its sole member of the board of directors was struck from the commercial register on 15 October 2019.

The Commercial Register Office of the Canton of Basel-Landschaft found an organisational defect (missing body and missing domicile at the statutory seat) and set a time limit of 30 days for remedy. The notice could not be served and was published in the SHAB on 12 February 2020. On 23 March 2020 a decision under Art. 153 CRO followed, ordering dissolution and deletion from the commercial register.

On 30 April 2020 the Commercial Register Office applied to the Civil District Court Basel-Landschaft East for measures under Art. 941a CO or Art. 731b CO. The decision of 4 May 2020 was published in the cantonal official gazette on 7 May 2020 because the addressee could not be located.

By judgment of 4 June 2020 the President of the Civil District Court ordered dissolution as of 4 June 2020 and liquidation by the debt enforcement office. The judgment was notified without written reasons and was published in the cantonal official gazette on 11 June 2020, with a note that written reasons could be requested within 10 days. This did not occur; the judgment became final on 23 June 2020.

On 29 July 2020 the appellant requested restoration of the time limit for requesting reasons. It argued that the organisational defects had already been remedied on 19 May 2020 (registration with the Commercial Register Office of Solothurn, entry on 3 June 2020), that the new domicile had been published in the SHAB on 8 June 2020, and that the judgment should therefore have been served by post. The President of the Civil District Court dismissed the request on 25 August 2020; the Cantonal Court of Basel-Landschaft confirmed this on 10 November 2020.

Requests before the Federal Supreme Court: Annulment of the decisions, granting of the restoration of time limit, alternatively remittal; additionally suspensive effect and an instruction to the debt enforcement office to wait with the liquidation. The Commercial Register Office made no application; the Cantonal Court requested dismissal.

Considerations

Admissibility: The decision of the Cantonal Court is a final decision of the last cantonal instance (Art. 75, Art. 90 FSCA) on restoration under Art. 148 CPC. Since it precludes the appellant from the legal remedy on the merits (Art. 239 para. 2 sentence 2 CPC), the exclusion under Art. 149 CPC does not apply. The amount in dispute exceeds CHF 30,000.--. The first-instance judgment, by contrast, is not a permissible object of appeal (Art. 75 para. 1 FSCA).

Complaints about facts and requirements of reasoning: The Federal Supreme Court bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA). Deviations are possible only in case of manifest error (arbitrariness) and with a substantiated complaint (Art. 105 para. 2, 97, 99 FSCA). The appellant's assertions regarding an oral statement by the Commercial Register Office and the court's knowledge are not sufficiently substantiated and are therefore disregarded.

Complaint of violation of the right to be heard and inspection of files: The complaint concerns the procedure on the organisational defects, not the judgment on restoration of time limit, and is therefore inadmissible. Moreover, the appellant does not show what influence the alleged violation could have had on the outcome; the right to inspect files is not an end in itself. The publication also contained a reference to the possibility of inspection at the court registry, which the appellant did not dispute.

Valid service as a precondition for default: Default presupposes valid notification under Art. 136 ff. CPC; otherwise the time limit does not begin to run (Art. 147 CPC). If service was defective, the time limit would at the earliest have been triggered by actual knowledge (here 24 July 2020), so that no case of default existed at the time of the request on 29 July 2020. The appellant ultimately, however, aims at the lawfulness of the public notice under Art. 141 para. 1 lit. b CPC.

Lawfulness of public service: Owing to the earlier history (repeated unsuccessful services, addressee not locatable, knowledge of the proceedings), the President of the Civil District…