Finally, the court rejected the claim of Kestenbaum and the company he owns that the payment paid to Bar Yosef in the sum of NIS 500,000, plus VAT, constitutes brokerage fees, so that no additional brokerage fees should be imposed on them. The court ruled that the evidence showed that the said payment was a fee for Bar Yosef's handling of the sale of the property, and not a brokerage fee, and that Kestenbaum was aware of this. At the same time, the argument that Yaacobi was not the effective factor in concluding the sale agreement was rejected.
Therefore, the Magistrate's Court accepted the claim of Yaacobi and the company he owns against Kestenbaum and the company he owns, and ordered them to pay the full brokerage fees, together with linkage differentials and interest from February 17, 2017 until the date of filing the claim, an amount that amounts to NIS 616,623.
- In the third part of its judgment, the court discussed the notice to a third party filed by Kestenbaum and the company he owns against Bar Yosef, claiming that he must indemnify them for the brokerage fees, if and to the extent that they are obligated to pay brokerage fees to Yaacobi and the company he owns, since they claim that Bar Yosef undertook during the negotiations that no additional liability would be imposed other than the payment in the sum of NIS 500,000 that Kestenbaum and the company he owned undertook to pay him. The court rejected this argument and ruled that there was no evidence to support the version of Kestenbaum and the company he owns in this matter. The court ruled that the undertaking document from which Kestenbaum and the company he owns are trying to build does not reflect Bar-Yosef's alleged undertaking. Instead, the document contains a commitment by Bar Yosef to pay Yaacobi in the sum of NIS 50,000, plus VAT, and a promise by Bar Yosef that he will try to persuade Yaacobi to make do with this amount. Therefore, the court accepted, only partially, the notice to a third party filed against Bar Yosef and ordered Kestenbaum to indemnify Kestenbaum in the sum of NIS 58,500 plus linkage and interest differences.
The Proceedings in the District Court
- Against the Magistrate's Court's ruling, Kestenbaum and the company he owns filed an appeal with the District Court, in which they were ordered to pay the sum of NIS 616,623 to Yaacobi and the company he owns.
In summary, Kestenbaum and the company he owns argued that the Magistrate's Court based its judgment on grounds that were not claimed in the statement of claim, in which it was not at all alleged that Kestenbaum acted in deviation from authorization on his behalf, but that he and Koffler concocted a conspiracy. In this context, it was emphasized that Kestenbaum was not Koffler's agent at all, but a potential partner in the deal. At the same time, Kestenbaum and the company he owns appealed various factual determinations of the Magistrate's Court.
- On February 4, 2025, the District Court (Justices Berkowitz, M. Amit Anisman and T. Levi Michaeli) issued a judgment in Civil Appeal 48942-04-24, [Nevo], in which the appeal of Kestenbaum and the company he owns was rejected.
In its ruling, the District Court adopted the Magistrate's Court's rulings and emphasized that there was no room to intervene in them. The court further clarified that the facts determined by the Magistrate's Court are sufficient to establish the obligation of Kestenbaum and the company he owns to pay the brokerage fees under the brokerage agreement.