OGH: Termination by settlement despite pre-trial costs

Apr 8, 2022 Benn-Ibler Rechtsanwälte

The termination effect of a settlement occurs even if the pre-trial costs are not included in the settlement effect.

In the proceedings in question, a contract for work and services existed between the defendant's universal predecessor and the plaintiff. In a pre-trial proceeding, the defendant, as plaintiff, claimed a payment for work of EUR 63,524.54, while the plaintiff, as defendant, counterclaimed in the amount of EUR 85,754.56 due to construction damages. The two claims were offset against each other. In the pre-trial proceedings, the two parties to the dispute reached a settlement stating that "all claims in dispute have been settled once and for all". However, the pre-trial costs explicitly mentioned in the settlement were excluded from this. The plaintiff in the present proceedings requested reimbursement of the costs for the private expert opinion obtained in the pre-trial proceedings. The expert opinion had ultimately led to the settlement.

The court of first instance granted the claim. The Court of Appeal, in turn, nullified the first judgment, including the preliminary proceedings, because the preliminary proceedings had not yet been conclusively ended by the exception. Thus, the procedural obstacle of the pendency of the dispute prevented the proceedings. The Austrian Supreme Court (Oberster Gerichtshof, OGH) held:

Pursuant to Section 233 para 1 of the Code of Civil Procedure (Zivilprozessordnung, ZPO), while a claim is pending, no litigation may be conducted either before the same court or before another court on the said claim. However, according to settled case law, pendency also exists if the claim is not identical, but forms a conceptual opposite, as was the case in the settlement of the previous proceedings due to the reversed roles of the parties. The effect of a settlement did not depend on whether a general settlement had been concluded, but whether the entire subject matter of the dispute had been settled. In the opinion of the OGH, this was the case in the previous proceedings.

The procedural obstacle of inadmissibility of the legal action, which was examined by the Court of Appeal, was also unsuccessful for the plaintiff. However, the fact that the pre-trial settlement prevented the plaintiff from asserting any "main claim" did not affect the independent claim for pre-trial costs. 

The appeal was to be upheld.

OGH 4 Ob 215/21b (16.12.2021)