Filing for bankruptcy against an empty estate after a turbo liquidation
Employee files for bankruptcy; the court of appeal ultimately dismisses the petition
The declaration of bankruptcy of SDW Leerwerkbedrijf B.V. has been set aside by The Hague Court of Appeal. A former employee had filed for the bankruptcy after SDW left unpaid a transition payment (transitievergoeding) of €20,577.76 that had been determined by the district court. The Rotterdam District Court declared the bankruptcy on 13 January 2026. On appeal, the court of appeal held that the petition amounted to abuse of power.
The background explains why. SDW had already been dissolved through a turbo liquidation before the petition. The company no longer had any assets. A few months earlier, however, €240,000 had been transferred to a group company, whereas those funds could also have satisfied the preferential claims of the employee and a second former employee. The employee argued that this payment — and the defective turbo liquidation — concealed a directors' liability claim that the trustee could realise.
The trustee saw matters differently. He concluded that a directors' liability claim had no prospect of success and that the estate was otherwise empty. This shifted the question from 'is there a debt' to 'did the creditor have a legally protected interest in this bankruptcy'.
No verifiable claim — and abuse despite plurality
First, the transition payment. Under Section 7:673c(1) DCC, the part of a transition payment that has not yet been paid is no longer owed in the event of bankruptcy. The fact that a court had determined the payment with final effect does not alter this: the entitlement does not change character as a result. The court of appeal rejected a narrow reading — as if the provision applied only to terminations by the trustee during the bankruptcy — with reference to the legislative history (Parliamentary Papers II 2013/14, 33 818, no. 3, p. 113). The transition payment is therefore not verifiable and can at most serve as a supporting claim.
That left two orders for costs of €1,066.04 and €768. This formally satisfied the plurality requirement. The petition nevertheless failed. The court of appeal relied on Supreme Court 22 December 2017, ECLI:NL:HR:2017:3269: abuse of power may arise where the petitioner knows or ought to know that the estate is empty and has no sufficiently justified interest, having regard also to the alternatives available to it. The Supreme Court linked this to the scheme of the Dutch Bankruptcy Act (Fw): an empty estate leads to closure and — in the case of a legal entity — to dissolution. The court of appeal applied that standard — developed for opposition by the trustee — even where the bankrupt company itself brought the appeal.
Applied to this case: given the preceding turbo liquidation, the employee knew that the estate was empty and that the directors' liability claim was the only possible asset. By filing for bankruptcy she was in effect trying to have the trustee carry out that investigation for her — at his own expense and risk. And an acceptable alternative existed: she could also have brought proceedings against the director directly herself. By failing to do so, she allowed her own interest to prevail disproportionately. The bankruptcy was set aside; the employee must bear the costs of both instances and the bankruptcy costs of €6,714.70.
When is a bankruptcy petition against an empty estate worthwhile?
For a creditor left empty-handed after a turbo liquidation, the message is concrete. Bankruptcy is not a cost-free investigative instrument: the trustee does not investigate a claim of uncertain outcome at the expense of the estate — and therefore at his own expense and risk. A party who suspects that a director has hollowed out the company or wound up the turbo liquidation defectively should therefore first assess whether a direct claim against that director is possible. Where that alternative exists, abuse of power looms and an order to pay the bankruptcy costs threatens — in this case more than €6,700. Within insolvency and enforcement law, that balancing of the recovery interest against abuse determines the outcome more often than the existence of the debt itself.
At the same time, the judgment marks a limit. An estate that appears empty does not by definition rule out a bankruptcy: a sufficiently justified interest — for instance, a genuine, substantiated prospect of recovery that can only be pursued through the trustee — can indeed support the petition. The petitioner must then be able to demonstrate that interest and rebut the trustee's position with reasons. The employee failed to do so here.
Frequently asked questions
Does a transition payment always lapse on the employer's bankruptcy?
The part that has not yet been paid lapses under Section 7:673c(1) DCC as soon as the employer is declared bankrupt. This applies even where a court has already determined the payment with final effect. The claim is then not eligible for verification and can, at most, count as a supporting claim in a bankruptcy.
Can a bankruptcy petition succeed if the estate is empty?
Sometimes it can. An empty estate does not automatically block a bankruptcy. What is decisive is whether the petitioner has a sufficiently justified interest, such as bringing about the dissolution of the legal entity or a concrete object of recovery that only a trustee can realise. If the petitioner knows that the estate is empty and has an alternative of its own, the petition may amount to abuse of power.
What can a creditor do after a turbo liquidation with no recovery?
A creditor can investigate whether the director acted wrongfully, for instance through selective payments or a defective turbo liquidation, and pursue that director directly. That direct alternative is preferable to a bankruptcy petition that serves only to have the trustee carry out an investigation.
The Hague Court of Appeal 17 March 2026, ECLI:NL:GHDHA:2026:405 (JOR 2026/148 with note by K.R. Kedis; RI 2026/37).
Cited case law
Supreme Court: ECLI:NL:HR:2017:3269
Courts of Appeal: ECLI:NL:GHDHA:2026:405