On 26 March 2025, the Hague Court of Appeal issued a judgment in a dispute concerning the existence of a commission agreement between a yard and a yacht broker (ECLI:NL:GHDHA:2025:317).
Presented facts
Broker Merle Wood brokered a yacht building contract signed by shipyard Oceanco with a buyer, and received a commission from the yard in return. In 2015, the broker learned that the yard was negotiating with the same buyer the purchase of a new superyacht. The yard subsequently signed a contract with the buyer to build that new yacht.
After the broker learnt of this, it levied a prejudgment attachment of evidence on certain data held by Oceanco. In anticipation of proceedings on the merits in which the broker will claim payment of commission, in these proceedings it first requests among others access to internal yard correspondence and records, to be selected by the custodian from the seized data using keywords and to be tolerated by the yard on pain 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 with respect to the new purchase. Among other things, the yard requests the court to lift the attachment of evidence.
The district court rejected the request for disclosure (ECLI:NL:RBROT:2023:2495) but partly granted the broker’s request for a preliminary witness examination (ECLI:NL:RBROT:2023:2494). We have previously covered these judgments (see here). The appeal in these proceedings concerns only the disclosure request.
Court considerations
The court of appeal considers, in line with the district court, that a request for access must meet three cumulative requirements: (i) a legitimate interest in obtaining access, (ii) certain documents, and (iii) the documents relate to a legal relationship to which the applicant is a party.
Also the court of appeal considers that 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 of appeal holds that the broker had not sufficiently demonstrated the existence of a legal relationship entitling it to claim commission from the yard in connection with the purchase of the second yacht. In this context, the court of appeal considers it relevant that, in principle, commission agreements are made per yacht, and that the buyer was introduced to the yard by someone other than the broker with regard to the new purchase, and only afterwards called in the broker’s assistance in the negotiations. The failure of the yard to respond to emails from the broker referring to a commission agreement is not considered relevant, as it cannot be concluded from the absence of such a response that a commission agreement was reached.
Thus, also the court of appeal rejected the disclosure request. The substantive adjudication of the yard’s requests for lifting the attachment of evidence and for reimbursement of various costs is referred back to the district court.
Lessons learned
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 disclosure request (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 (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.
