Directors' liability in a construction-project cost overrun
Landlord builds a beach club for €4 million and seeks recovery from the tenant's directors
HVB Beheer built a beach club with a restaurant and swimming pool at the Het Zilveren Schor holiday park in Arnemuiden. The construction costs were budgeted at €1,500,000 but rose to €4,000,000. OPM Developments and Het Zilveren Schor Exploitatie rented the beach club but did not pay. The Zeeland-West-Brabant District Court ordered them to pay almost €700,000. They paid nothing.
HVB then turned its attention to the tenants' two former indirect directors. The claim: over €1,000,000 in damages on the basis of directors' liability. The directors had by then sold their shares for over €1,000,000. HVB argued that they had contracted recklessly, had allowed the cost increase to happen and had frustrated the prospects of recovery.
The Gelderland District Court dismisses everything. More than that: the attachments levied by HVB are declared wrongful and HVB must compensate the resulting loss, to be assessed in separate damages proceedings.
Neither the Beklamel standard nor the Roelofsen standard breached
The court works through two established categories of directors' liability. First category: the Beklamel standard. Did the director know, when entering into the lease, that the company would be unable to pay? No, the court holds. At the time the lease was concluded in January 2020, the construction sum was budgeted at €1,500,000, there was a balanced operating budget and OPM had shareholders' equity of almost €4 million. The fact that the construction costs later doubled does not make the contracting reckless. HVB acknowledged in its own writ of summons that at the time it had no reason to doubt the financial position of its contracting parties.
Second category: Ontvanger/Roelofsen. Did the directors bring about or permit the companies' failure to meet their obligations? Here too HVB gets no further. The court finds that it has been insufficiently substantiated that the directors had any influence over the construction process and the cost increase. The notification in November 2021 that the construction costs by then amounted to €3,850,000 was, for the directors, largely a fait accompli. An email from May 2020 that HVB raised only at the hearing is disregarded as being contrary to the proper conduct of the proceedings (goede procesorde).
Nor is there any frustration of recovery. The shares were sold for €1,000,001, the real estate was disposed of at market value and the relocation of the office to Germany took place after the directors had already left. On the counterclaim, the court declares the prejudgment attachments levied by HVB wrongful and refers the damages to separate damages-assessment proceedings.
What does this mean for creditors seeking to hold directors personally liable?
The threshold for directors' liability alongside the company is high — and that is a deliberate policy. Anyone seeking to hold a director liable must show that the director is personally seriously culpable. The fact that the company does not pay is not enough. What matters is what the director knew or ought to have known at the time of acting, not the outcome after the event. A balanced operating budget and healthy shareholders' equity at the time of contracting are strong defences.
The case also shows that levying an attachment without a sound basis is a boomerang. HVB must now itself pay damages for the wrongful attachments. Anyone considering holding directors personally liable would do well to test the substantiation critically before levying an attachment. See also the earlier analysis of a case in which directors' liability was in fact established and the publications on this website.
Frequently asked questions
When is a director personally liable alongside the company?
Only where the director is personally seriously culpable. Under the Beklamel standard, the question is whether the director, when entering into the obligation, knew or ought to have understood that the company would be unable to pay and would offer no recourse. Under the Ontvanger/Roelofsen standard, the question is whether the director brought about or permitted the company's failure to meet its obligations.
Can a creditor claim directors' liability if the construction costs turn out much higher afterwards?
Not as a matter of course. The court assesses the position at the time of contracting: was there then a sound budget and sufficient shareholders' equity? The fact that costs rise afterwards does not make the director automatically liable. The creditor must show that, already when the agreement was concluded, the director knew that the company would be unable to perform.
What does a creditor risk by levying an attachment on the basis of an insufficiently substantiated claim?
A party whose attachment proves to have been levied without justification is in principle liable in tort. That follows from the settled case law of the Supreme Court. The party subjected to the attachment may claim damages, where appropriate through separate damages-assessment proceedings.
ECLI:NL:RBGEL:2026:503, Gelderland District Court, 14 January 2026
Cited case law
Supreme Court: ECLI:NL:HR:1995:ZC1608
District Courts: ECLI:NL:RBGEL:2026:503