From the aforesaid, it emerges that an argument that the plaintiff corporation was not authorized to file the claim is an argument that requires examination, even if it is raised by the defendant. This is when the claim goes beyond claims of a "defect" in the decision (which, as a rule, the defendant has no standing to raise), but rather means that no decision was made at all. In such a case, the meaning of the claim is that "you have no plaintiff" and in any case "you have no claim" (in the words of the court other municipal requests 207/74 above). The defendant has a legitimate interest in ensuring that the person who is registered in the statement of claim filed against him as the "plaintiff" is indeed suing him.
Indeed, a review of the case law shows that the courts did not refrain from addressing the defendant's claim that no lawful decision was made by the competent party in the plaintiff to file the claim (see and compare, Civil Appeal Authority 688/91 S.B.C. ESTABLISHMENT INC v. Greek Orthodox Patriarch of Jerusalem [Nevo] (12.5.1991); Civil Case (Tel Aviv District) 14580-09-18 Sabros International Corp. v. Tel-Sun Ltd., paragraphs 77-68 [Nevo] (8.9.2019); Civil Case (Jerusalem District) 4577-09-19 Greek Orthodox Patriarchate v. FALLEN GARDEN INC [Nevo] (25.1.2021); Civil Case (Tel Aviv District) 19005-02-14 Cohen v. Keshet Food Import and Marketing Ltd., paragraphs 20-15 [Nevo] (14.1.2015); Civil Case in Summary Procedure (Central District) 13853-02-09 BLUE RIVER INVESTMENTS v. Morgenstern [Nevo] (1.7.2013); Civil Case (Tel Aviv District) 1446/01 The Greek Catholic Community in Jaffa v. Archbishop Salome [Nevo] (24.5.2007)).
- Another question is what documents a corporation filing a lawsuit is required to present in order to show that it has indeed made a lawful decision to file the lawsuit. It is reasonable to assume that it will usually be sufficient to attach a signed power of attorney to the statement of claim (see Regulation 170A to the Civil Procedure Regulations, 5779-2018 ("Civil Procedure Regulations")). However, there are cases in which this will not be enough, and it seems that the current case is in the audience. There is no need to elaborate on this question in our case, since the plaintiff presented the document that she claims is the decision of the board of directors by virtue of which the claim was filed, and it is the one that stands at the center of our discussion.
And from the general to the individual.
- The plaintiff presented a document entitled "Minutes of the General Meeting and the Board of Directors", which was supposed to be the minutes of the meeting at which it was decided to file the claim. According to the document itself, only Yosef was present at the meeting. In other words, there is no dispute that most of the plaintiff's board of directors (including Yosef and Shalom) were not present at the meeting. There is also no dispute that the legal quorum requirement was not met In section 104 to the Companies Law. There is no claim that Shalom retroactively approved the decision of the board of directors. In other words, this is a decision that was supposedly made by the plaintiff's board of directors, but in fact was made by Yosef alone. In these circumstances, we are not only dealing with a "flaw" in the decision of the board of directors, but a situation in which no decision was made by the board of directors at all. In any event, there is no valid decision by Kibbutz Buchritz to file the lawsuit. We are before us, therefore, a situation in which "you have no plaintiff, you have no lawsuit," as the Supreme Court put it, other municipal requests 207/74 The above.
Regulation 41(a)(1) The Civil Procedure Regulations authorize the court to order the dismissal of the claim when "the statement of claim does not disclose a cause of action." When the statement of claim was not filed at all by the person mentioned in it as a plaintiff, it is clear that it does not disclose cause and must be deleted. Given that the facts indicating this are not in dispute, there is room to dismiss the claim in limine.
- Needless to say, the dismissal of the claim in limine does not express any position as to the claim on its merits. However, in order for the claim to be able to be clarified, it must be lawfully filed by Kibbutz Buchritz. Indeed, given the intensity of the conflict between Yosef and Shalom, it is doubtful that the company's board of directors can act effectively and make decisions on the questions on the agenda. The law offers various solutions for cases in which a company is in a "dead end". To the extent that Yosef believes that he has grounds to enforce on Shalom the filing of the lawsuit by Kibbutz Buchritz and his representation of the company, he is entitled to take the appropriate legal proceeding for this purpose. However, as long as there is no judicial decision authorizing Yosef to file the lawsuit on behalf of Kibbutz Buchritz and to represent the company within its framework, he is not permitted to do so without the lawful approval of the company's authorized institutions.
- And from here to the question of expenses. As stated above, Yosef agreed that to the extent that there was room for the obligation to pay the expenses, they would be imposed on him. Given the determination that the claim was filed without authority, there is room to award costs in favor of the defendants. The Teshuva Group is entitled to expenses both for the hearing of the request for temporary relief (which was rejected) and for the hearing of the motion for summary dismissal. In the circumstances of the case, and taking into account the scope of the hearing of the two applications, I found that the amount of expenses should be set at ILS 30,000. Defendant 4, who did not file a motion for summary dismissal, is entitled to costs in respect of the request for interim relief. Considering that her involvement in the hearing of this application was limited to that of the Tshuva Group, I found that the expenses in her favor should be set at the sum of 8,000 ILS.
Conclusion
- The claim is dismissed out of hand.
Mr. Yosef Buchritz will bear attorney's fees in favor of defendant 4 in the sum of ILS 8,000 and in favor of the other defendants (collectively) in the sum of ILS 30,000.