Ten years after the bankruptcy of the travel company from Holten, the trustees of OAD are demanding an amount of 7 million euros from SGR. According to them, the guarantee fund wrongly enforced that amount, a bank guarantee provided by Rabobank in favour of SGR, in 2013. This became clear on Thursday before the court in Rotterdam, where the lawsuit filed by the trustees of OAD against SGR was filed. At the last minute of the hearing, there was some remarkable news: it turns out that there is still more than 24 million euros in the OAD estate, as a result of which creditors can expect a payout and SGR may still receive part of its remaining damages. Almost 10 years after the bankruptcy, the trustees of OAD summoned SGR in June 2023 because they want to receive an amount of 7 million euros back as a result of a bank guarantee provided by Rabobank in favour of SGR. The trustees are of the opinion that SGR wrongly enforced this bank guarantee shortly after OAD went bankrupt in September 2013 (!). Damage The liquidators are of the opinion that SGR acted unlawfully in enforcing the bank guarantee because the liquidators dispute, on legal grounds, that SGR had succeeded to the rights of the passengers who were compensated by SGR after the bankruptcy. SGR takes over the claims of travellers in the event of bankruptcy by means of assignment and subrogation (transfer of the claim, ed.). SGR has paid out more than 25 million euros in damage to travellers and is therefore left with a net loss of 18 million euros after the bank guarantee has been collected. SGR defended itself against the liquidator’s claim. First, because that action was brought out of time and is therefore time-barred. As early as 27 September 2013, SGR informed the liquidators that it would enforce the bank guarantee provided by Rabobank. It was not until 10 October 2018 that the liquidators objected to this on legal grounds, i.e. more than five years later, while claims are in principle time-barred after five years. Inherited In addition, as laid down in the Participant Regulations and in the Guarantee Scheme, SGR has taken over the claims of the passengers on OAD. SGR has the possibility, both on the basis of assignment and subrogation provisions, as well as obligations under the participant regulations for travel companies to provide security, to enforce the bank guarantee in the event of the bankruptcy of OAD. The trustee argues that this would also be contrary to the bankruptcy law. SGR disputes this. In support of this, SGR has commissioned an opinion from an expert professor specialising in bankruptcy law, who endorses SGR’s argument. During the hearing of the case, the trustees argued that the claim was not time-barred. They claim that, at the time, they were not yet aware of the facts on the basis of which it could be established with certainty that SGR would have a claim against the estate of the insolvent OAD by taking over the claims of travellers who had been compensated by SGR. The trustees also argued that SGR had acted in breach of the Bankruptcy Act by invoking the bank guarantee for damages paid out in respect of claims taken over by travellers. SGR has emphatically disputed all of the liquidator’s assertions. SGR argued that the trustees should have reported to Rabobank when the bank guarantee was enforced, because it was the guarantor for OAD. SGR is not a party between Rabobank and OAD. Incidentally, SGR’s lawyers indicated that they also saw little chance of success if OAD’s trustees were to hold Rabobank accountable for the bank guarantee that had been enforced. Enforcing a bank guarantee is not contrary to the bankruptcy law. The bankruptcy of OAD in 2013 resulted in more than 80,000 duped OAD customers who would have lost their money without an SGR guarantee. The impact of OAD’s bankruptcy was very significant not only for SGR, but also for other travel companies and suppliers. Inventory At the end of the hearing, to SGR’s great surprise, the trustees indicated that there is still more than 24 million euros in the OAD estate, as a result of which creditors can expect a payout and SGR may still receive part of its remaining damages. This is not apparent from the summarily published public bankruptcy reports. This creates the expectation that no payment to creditors can be expected. The verdict in this case between the trustees of OAD against SGR is expected in six weeks. Previously, the OAD Ter Haar family was unsuccessful in its claim against Rabobank, both in the first instance and on appeal. Incidentally, the trustee transferred her alleged claim to Rabobank to the Ter Haar family for an undisclosed amount. (Photo Shutterstock).
