It is certainly possible that at the stage of filing Barlev's opinion, the creditors (or liquidators) did not yet have all the information and evidence necessary to prove their claim against Kost. However, as stated above, this does not justify a further suspension of the statute of limitations. This is precisely why the statute of limitations is intended, which extends over seven full years. During this period, the creditors (or liquidators) should have continued to investigate the facts mentioned in the Barlev opinion, acted to obtain evidence to support them, and filed a claim within the limitation period."
- In view of these determinations, it is clear that the claim of limitation in relation to the company's claim does not block a decision in the proceeding on its merits.
- As to the statute of limitations for the creditors' claim, in accordance with the Supreme Court's ruling that the defendant's consent to stop the statute of limitations also applies in relation to the creditors' claim. Appendices 7 and 8 to the motion for dismissal indicate that the defendant did indeed undertake to the liquidators that no claim of limitation and/or delay would be raised by them. In the words of the announcement:
"... In order to give time for this discussion, it is understood that our client will not raise a claim of statute of limitations and/or delay regarding the period of time from the date you contacted our client (January 3, 2018) until the end of seven days from the date on which one party notifies the other, in writing, of the termination of the discussion. It is clear that what is stated in this notice and what is not stated in it does not prejudice any claim and/or right available to our client, just as it does not exhaust them."
It should be noted that subsequently the parties reached an agreement that the period specified in the defendant's consent would be 90 days from the date of the termination of the discourse, and not seven days (in Appendix 9 to the Motion for Liquidation).
- The Supreme Court attributed decisive weight to the fact that at the time of the agreement, a draft statement of claim was sent to the defendant, which explicitly clarified that the liquidators were also acting on behalf of the creditors. Thus the language of the appeal decision (at para. 62):
"Indeed, in the end, the liquidators filed the lawsuit on behalf of the creditors as well, after the company's main creditors even officially waived their rights to them. In this situation, Kost cannot be heard arguing that since it did not give its consent directly to the creditors, it should not be applied to them.