The Alkalai report shows that the sum of NIS 25,779,185 embodies the gap between the amount of funds that were supposed to be received from the Toto by the Association, and the amounts actually received (see paragraphs 40-42 of the Alkalai Report). It was also determined that the sum of NIS 22 million is against the surplus of transfers to the teams beyond the receipts received from Toto – an amount which, according to CPA Alkalai, has been increasing from year to year (paragraphs 42-43 of the Alkalai report). As can be seen, it is not possible to draw a clear conclusion from the position of CPA Alkalai regarding the significance of the sum of NIS 4 million that was recorded under the "surplus of transfers to teams" in the Association's reports, and in any case no rivets should be made on this question in view of the fact that the application was rejected not on its merits.
- However, even in the absence of a decision on the question of what an "asset" of approximately NIS 4 million was registered against – whether it was against funds that were supposed to be received from the Toto but were not actually received, or against funds transferred to the teams and it was estimated that they would be returned to the Association's coffers – it seems that there can be no dispute that if this is an amount that embodies an expected collection from the teams, then it cannot be "deducted" once again in the framework of the collection assessment out of the sum of NIS 22.3 million.
In this context, it seems, therefore, that the majority position in the Claims Committee's report was mistaken. On the one hand, the report states that "the surplus of transfers reached a total of approximately NIS 26 million, and when deducting the expected collection, it was set at approximately NIS 22.3 million" (paragraph 60 of the Claims Committee's report). In other words, the Committee's position is that the sum of approximately NIS 4 million that was recorded as an asset in the amended financial statements embodies part of the expected collection. On the other hand, This sum was not deducted from the expected collection assessment carried out by the majority opinion in the committee.
Ruling on Remuneration and Fees in Light of the Rejection of the Application
- What emerges from the compilation is that the application to certify a derivative claim is liable to be dismissed. Although the rejection of the motion usually justifies an award of costs to the person who filed it, there are cases in which despite the rejection of the motion to certify a derivative (or class action), there are reasons for awarding remuneration in favor of the plaintiff or fees in favor of his attorney. Thus, for example, in cases where the mere filing of the application for approval resulted in a significant consideration for the corporation (and compare it to a judgment in a derivative action). (Tel Aviv District) 27111-08-14 Azizi v. A. Dori Construction in Tax Appeal [Published in Nevo] (31.12.2017)).
The parties did not raise their arguments regarding the remuneration and fees to which the Applicants and their counsel are entitled (or the amount of expenses to which the Applicants should be charged) as a result of the filing of the application for approval.