5
DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT
and a credit under a current account agreement; the former implied only
occasional and short-term risk, whereas the latter involved more permanent,
long-term risk.
(b) The Bank acknowledged also the second request for an extension of
the credit facilities for the takeover of the companies T. and D. In this
connection, Mr van Reijendam had indicated that others would stand surety
for at least NLG 2,000,000. Relying on that statement, the Bank had written
to Dombo on 22 January 1981 that it agreed in principle to an extension of
the credit facilities to NLG 5,000,000, subject however to certain conditions
regarding annual statements and securities. No annual statements had been
forthcoming, nor any securities either, and so the Bank had written to
Dombo on 19 March 1981 withdrawing the offer.
The Bank acknowledged the transfer of NLG 350,000 but denied having
been aware of the purpose for which that sum was intended. It claimed that
Mr van Reijendam had misled it in this regard. This also applied to the
withdrawal of the NLG 100,000. The Bank had referred to this deception in
its letter of 19 March 1981 and stated that in consequence it would annul the
credit agreement (which it had nevertheless continued to honour) if Mr van
Reijendam were to take up his position as manager of Dombo again (see
sub-paragraph (c) below).
The Bank claimed that it had required the mortgages as surety for the
letters of credit referred to in sub-paragraph (a) above and the withdrawal of
the above-mentioned sums of NLG 350,000 and 100,000. The mortgages
had been established under a power of attorney drawn up by a notary who as the document itself showed - had read it aloud before Mr van Reijendam
signed it. The Bank denied that there had been a blank power of attorney.
(c) The Bank denied categorically that it had frozen Dombo’s accounts on
28 January 1981. In any case, withdrawals from these accounts had by then
exceeded the agreed maximum of NLG 750,000, the balance being NLG
784,657.75 in debit. It had, however, made it clear that it no longer had
confidence in Mr van Reijendam after the above-mentioned deception had
come to light. The Bank’s doubts concerning his suitability to continue
managing Dombo were later confirmed when Mr van Reijendam was
suspended as managing director with effect from 4 February 1981 and
shortly afterwards committed to a mental institution under a court order.
During the period from 4 February 1981 until 23 March 1981 the Bank
continued its dealings with Dombo under different management, consisting
of Mr C.U. and Mrs van L. It continued to allow credit to finance the
activities taken over from the O. company. After Mr van Reijendam’s return
the Bank had allowed Dombo every opportunity to reduce its debt; when it
became clear that Mr van Reijendam was not prepared to do so, it had
annulled the credit agreement with effect from 30 October 1981. Only then
had it frozen the accounts.