OGH: Legal Recourse for Priority Claims in Insolvency

Dec 9, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof) has ruled that in deciding on the admissibility of legal action it is not important whether the claim is actually an insolvency claim or a priority claim against the insolvency estate (German term: Masseforderung). Rather, it depends primarily on the wording of the claim and the allegations.

Insolvency proceedings were opened against the debtor’s estate, and the defendant was appointed as insolvency administrator. The now managing director of the plaintiff used to work for the debtor as managing director based on a work contract concluded between the plaintiff and the debtor. After the opening of insolvency proceedings, criminal proceedings were initiated against him, but he was acquitted. The plaintiff now sought reimbursement of the legal costs incurred under the title of risk liability, because she had paid the costs to her managing director against assignment of the claims. The claim was a priority claim. Insolvency claims were not filed.

The insolvency administrator was of the opinion that the claim was an insolvency claim and that legal action was inadmissible due to the lack of a filing in the insolvency proceedings.

The court of first instance and the court of appeal dismissed the action on the grounds of inadmissibility.

However, the Supreme Court allowed the action. Here is why:

The admissibility of the legal action is primarily determined by the wording of a complaint. It depends on the nature of the asserted claim, for which the asserted legal ground is of decisive importance. Because the plaintiff expressly qualified the claim as a priority claim of the insolvency estate and the claim was consequently directed towards payment from the insolvency estate, according to the Supreme Court, recourse to the courts is admissible. However, the substantive question of whether there is actually a priority claim against the estate is not decisive for the decision on the admissibility of legal action.

OGH 17 OB 17/22g (17 October 2022)