Facts

Parties and instances: [A. AG] (appellant, creditor) lodged a civil appeal with the Federal Supreme Court against the decision and judgment of the Higher Court of the Canton of Zurich, II. Civil Chamber, of 9 September 2020 (PF200055-O/U). The respondents are [B. GmbH] in liquidation (respondent 1) and its managing director [C.] (respondent 2).

Facts:

  • By judgment of 31 January 2019, the District Court of Zurich (bankruptcy court) opened bankruptcy proceedings over [B. GmbH] . The proceedings were discontinued on 7 March 2019 for lack of assets.
  • On 14 June 2019, the company was deleted ex officio from the commercial register pursuant to Art. 159 para. 5 lit. a CRO.
  • On 11 March 2020, [A. AG] applied for the company to be re-registered in liquidation and for the bankruptcy to be reopened, based on newly discovered assets, namely liability claims against the managing director [C.] as formal organ and against the parent company as de facto organ.
  • By judgment of 30 April 2020, the District Court of Zurich (single judge in summary proceedings/bankruptcy court) ordered the re-registration and reopened the bankruptcy in summary proceedings.
  • The respondents appealed and lodged a complaint with the Higher Court. In appeal proceedings PF200055, the Higher Court declined to hear the requests concerning re-registration, upheld the complaint concerning the reopening of the bankruptcy, set aside operative paragraph 2 of the first-instance decision and dismissed the bankruptcy petition.
  • In appeal proceedings LF200034, the Higher Court dismissed the request for re-registration on the ground that, without re-registration, there was no subject capable of bankruptcy.
  • In parallel proceedings 4A_527/2020 of 22 April 2021, the Federal Supreme Court upheld the appeal against the judgment LF200034, set it aside and dismissed the respondents' appeal against the re-registration, because they lacked standing to appeal. Prima facie proof of an asset is sufficient in re-registration proceedings.
  • Before the Federal Supreme Court, [A. AG] requested that the decision and judgment PF200055 be set aside and the reopening of the bankruptcy be confirmed, or alternatively that the matter be remitted. The respondents requested dismissal. The Higher Court waived a response. The appeal was granted suspensive effect with respect to costs.
  • The appellant in particular complained of a violation of Art. 66 FSCA (lack of legal capacity to be a party of respondent 1 and lack of standing to appeal of the organ) as well as a violation of the right to be heard.

Legal question: Whether the requirements for reopening bankruptcy proceedings over a GmbH deleted from the commercial register and discontinued for lack of assets are met, and whether the Higher Court rightly upheld the complaint without addressing the bankruptcy requirements.

Considerations

Admissibility of the appeal: The decision appealed against is that of a superior cantonal court acting as an appellate instance concerning the reopening of bankruptcy proceedings. The civil appeal is admissible irrespective of the amount in dispute (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. d and Art. 75 FSCA). Complaints of violation of federal law (Art. 95 lit. a FSCA) must be substantiated in a concise manner (Art. 42 para. 2 FSCA); the violation of constitutional rights is subject to the principle of complaint (Art. 106 para. 2 FSCA). The Federal Supreme Court is bound by the facts established by the lower court (Art. 105 para. 1 FSCA); new facts and evidence are admissible only insofar as the previous decision gives cause for them (Art. 99 para. 1 FSCA).

Legal framework for reopening: The reopening of bankruptcy proceedings discontinued for lack of assets is not regulated by statute, but is recognised by legal scholarship and case law. If, after discontinuation and deletion, new assets are discovered that cover the costs of bankruptcy proceedings, the company must be re-registered in the commercial register, the bankruptcy must be reopened and conducted in summary or ordinary proceedings. The existence of assets must be made prima facie plausible. The right to apply for re-registration belongs to any person with a legitimate interest, in particular board members, liquidators and creditors. Reopening is only possible where the bankruptcy was discontinued for lack of assets, whereas subsequent bankruptcy (Art. 269 DEBA) presupposes completed proceedings.

Binding effect of the parallel proceedings: Judgment 4A_527/2020 of 22 April 2021 was rendered between the same parties during the pending proceedings and is considered judicially notorious. It is not subject to the prohibition on novel submissions (Art. 99 FSCA) and must be taken into account in the present proceedings…