Moreover, as detailed above, in the framework of their response to the request for joining, the liquidators noted that the causes of action against the parties whose joinder was requested were "examined and/or examined and considered by the liquidators" - so that in any case it was not possible to conclude from this a clear waiver of their right to sue these parties in the future.
It should also be noted that a few months after the liquidators' response to the request for joining, and before a decision was made, the liquidators approached Kost with a proposal to hold a dialogue before taking proceedings against it, to which a draft statement of claim against it was attached. In this state of affairs, I do not believe that the liquidators' objection to the addition of Kost to the suit against the shareholders was sufficient to create a clear representation on their part with respect to the waiver of the rights of the suit against it."
- It was further determined that the defendant did not claim in her motion for summary dismissal that she had changed her situation for the worse or that she had suffered specific evidentiary damage, and it was emphasized that it must be proven that the change in situation stemmed directly from the plaintiff's conduct and his presentation of concession. Thus the language of the appeal decision (para. 78):
"78. With regard to the second condition, the trial court held that "it can be assumed that the considerable delay in filing the claim caused [cost] evidentiary damage, and in addition, after the passage of the limitation period, it is reasonable to assume that it was prevented from acting to exhaust proceedings against the parties involved by way of submitting a notice to a third party" (paragraph 33 of the judgment). However, an examination of the motion for dismissal in limine shows that Kost herself did not claim at all that she had changed her situation for the worse or that she suffered any damage as a result of the delay in filing the claim, and she certainly did not meet the heavy burden imposed on her to prove this claim. The determination that "it should be assumed" that the delay in filing the claim caused Kost damage is also inconsistent with the caution that a court is required to take when accepting a claim of delay in a civil proceeding.