On 22 March 2023, the Rotterdam District Court issued a judgment in a dispute concerning the existence of a commission agreement between a yard and a yacht broker (ECLI:NL:RBROT:2023:2495).
Broker Merle Wood brokered a yacht building contract signed by shipyard Oceanco with a customer and received a commission from the yard in return. In 2015, the broker learned that the yard was negotiating with the same client the purchase of a new superyacht. The broker and the yard discussed a possible commission at a yacht show that same year. The yard subsequently signed a contract with the customer to build a new yacht.
After the broker learnt of this, it levied a prejudgment attachment of evidence on certain data. In anticipation of proceedings on the merits in which the broker will claim payment of commission, in these proceedings it first requests access to internal correspondence and records, to be selected by the custodian from the seized data using keywords and to be tolerated by the yard on penalty of a fine. The broker believes that it will follow from those documents that there was correspondence within the yard about commission to be paid to the broker. Among other things, the yard requests the court to lift the attachment of evidence.
The court considers that a request for access must meet four cumulative requirements: (i) a legitimate interest in obtaining access, (ii) certain documents, (iii) the documents relate to a legal relationship to which the applicant is a party, and (iv) the documents must be at the defendant’s disposal.
The court considers that already the third requirement has not been met. To this end, it considers that, according to established case law, the existence of the legal relationship to which the application relates must be sufficiently plausible, and that an applicant must state such facts and circumstances and substantiate them with evidence already available that it is sufficiently plausible that a default has occurred or is likely to occur. What is sufficient in a specific case comes down to an appreciation of the parties’ contentions and the persuasiveness of the evidence already submitted. The starting point in this respect is, on the one hand, that the standard of proof required for granting a claim based on (threatened) shortcomings in summary proceedings need not be met; on the other hand, higher requirements must be set than when assessing a request for prejudgment attachment of evidence.
The court refers to e-mails in which the broker refers to a commission agreement and to a statement made before a notary public stating on behalf of the broker what was discussed during the yacht show. However, the court considers that from the yard’s failure to respond to the emails, it could not be concluded that a commission agreement had been reached, and that the statement qualifies as testimony by a party to the proceedings which, in principle, cannot provide evidence in favour of that party. In addition, the court considers that at the time of the yacht show, the yard had already signed a letter of intent with the customer for a successor yacht and that, at most, it spoke with the broker about another yacht it was recommending. The court therefore concluded that the broker had not made it sufficiently plausible that a commission agreement had been agreed during the yacht show.
The court no longer turns to review of the other requirements for a request for access to documents. However, it upheld the attachment of evidence because balancing interests at this point precluded lifting the attachment, also because the yard would suffer no apparent disadvantage if the seizure was upheld.
That same day, the Rotterdam District Court handed down another judgment in which it did grant part of the broker’s request for a preliminary witness examination (see ECLI:NL:RBROT:2023:2494).
This judgment is not the first court ruling in which a Dutch shipyard was confronted with a yacht broker claiming commission and requesting access to documents in that context. This happened before in the case of shipyard Heesen, in which case the court did find that the existence of a legal relationship had been made sufficiently plausible and granted broker Edmiston’s inspection request (see ECLI:NL:RBOBR:2020:3808). In another similar case, a request by broker B.Y. Monaco to obtain access to a Feadship building contract was rejected as premature (see ECLI:NL:RBAMS:2014:3592).
Are you a broker and wondering whether you are entitled to commission, or are you a shipyard and do you have questions about how to mitigate the risks of commission claims? If so, please feel free to contact us.
