Dismissal of the appeal against the refusal of provisional registration of a builder's lien for lack of a credibly substantiated outstanding claim

Facts

Parties and Procedural History: The appellant, [A. AG] (debt collection company, assignee of [C. AG] ), appeals against the judgment of the Commercial Court of the Canton of Zurich (single judge) of 10 December 2019 (HE190381-O). The respondent is [B. AG] , owner of the affected plots of land in the municipality of [U.] (Land Registry Office Wädenswil).

Facts: [C. AG] carried out construction work on the respondent's plots on behalf of [D. GmbH] . The contract for work provided a lump-sum price of CHF 350'000.-- excl. VAT for [C. AG] 's services. The respondent made two payments totalling CHF 420'286.10, the existence of which is undisputed. The appellant asserted an outstanding balance of CHF 156'170.--, which [D. GmbH] allegedly acknowledged in two of three invoices.

Proceedings: On 2 October 2019, the appellant applied to the Commercial Court for a provisional annotation of the provisional registration of a builder's lien. The court provisionally granted the application the following day without hearing the respondent. After submissions from both parties (18 November and 4 December 2019), the President of the Commercial Court dismissed the application and ordered the complete deletion of the provisionally registered liens. By civil appeal of 15 January 2020, the appellant requested the annulment of this judgment and the granting of provisional registration. The President of the II. Civil Law Division granted suspensive effect (31 January 2020). The Federal Supreme Court dispensed with a second exchange of written submissions.

Subject Matter of the Dispute: The issue was whether the appellant could credibly show in summary proceedings that a lien-secured claim exists beyond the contract sum already covered by the payments.

Considerations

Admissibility: The decision dismissing the provisional registration of a builder's lien (Art. 961 para. 1 no. 1 CC) is a final decision (Art. 90 FSCA) in a civil matter of a pecuniary nature. The amount in dispute of CHF 156'170.-- exceeds the minimum threshold of CHF 30'000.-- (Art. 74 para. 1 let. b in conjunction with Art. 51 para. 1 let. a FSCA). The civil appeal against the Commercial Court as the sole cantonal instance is admissible under Art. 75 para. 2 let. b FSCA; the dispute is of a commercial law nature (BGE 138 III 471). The timely appeal (Art. 100 para. 1 FSCA) was admitted.

Scope of Review for Provisional Measures: As this concerns a provisional measure within the meaning of Art. 98 FSCA, only the violation of constitutional rights may be complained of. The strict principle of complaints applies (Art. 106 para. 2 FSCA). A complaint of arbitrariness (Art. 9 Cst.) requires that the decision suffers from a qualified and obvious defect and that it manifestly contradicts the sense of justice; the mere arguability of a different solution is insufficient.

Standard of Credible Substantiation: Under Art. 837 para. 1 no. 3 CC and Art. 961 para. 3 CC, provisional registration may be granted upon credible presentation of the entitlement. The procedure is summary (Art. 249 let. d no. 5 CPC). The requirements for credible substantiation are lower than the usual standard of proof. Registration may only be refused if the existence of the lien is excluded or appears highly improbable; in case of doubt, it must be granted.

No Violation of the Prohibition of Arbitrariness in the Assessment of Credibility: The Commercial Court based its decision on several elements: the concrete supplies were raised belatedly; the outstanding balance was not credibly substantiated; the contract claim was settled by the payments of CHF 420'286.10; the acknowledgment by [D. GmbH] dated from a period before the payment. The appellant did not adequately engage with this reasoning. She did not dispute that only one exchange of written submissions takes place in summary proceedings and that she had asserted the services only in her submission of 4 December 2019. The argument that the payments of CHF 420'286.10 must imply further agreements disregards the nature of the adversarial application procedure. The appellant herself had issued the respondent an invoice for this amount without mentioning any further claims. Her…