Admittedly, on the other hand, there is the right of the Respondents to ensure that they will be able to repay the Applicants, but the Respondents have taken various steps, as aforesaid, which there is no dispute that have significantly harmed the Applicants' profits, and it is clear - in view of the Applicants' affidavit that the station under their management has no profits as a result of taking those steps - that taking the raw income from the Applicants and transferring them to the Receiver is liable to lead to the paralysis of the station under their management and even to its closure.
On the overall balance, it appears that in our case, serious harm may be caused to the ongoing operation of the station under the management of the Applicants if a temporary receiver is appointed, while his non-appointment will not be a significant harm to the interests of the Respondents, inter alia, taking into account the fact that the Applicants filed a counterclaim against the Respondents.
Therefore, I propose to accept the appeal in the sense that the judgment of the District Court and the temporary receivership order will be annulled. Yes, I suggest that we will not make an order for costs."
- After reviewing Judge Turkel's dissenting judgment, Justice Dorner saw fit to expand the discussion and address the constitutional dimension of the appointment of the receiver. First, Justice Dorner explained her view and starting point on the constitutional issue (the Telepaz, Name, in paragraph 7, p. 555, opposite the letter Z - p. 556, opposite the letter A):
"Temporary relief, and in our case the appointment of a receiver that causes the termination of the defendant's activity or a real burden on it, is disproportionate anywhere where other temporary remedies have not achieved their purpose, since there is a balance between the plaintiff's interest in realizing his rights as determined in the judgment-The law, and the defendant's interest that his property right will not be violated, gives the defendant's interest a preferential status. First, because the plaintiff bears the burden of proof, and secondly - and in my view the main one - because the right to property is a constitutional right that is enshrined today in section 3 of theBasic Law: Human Dignity and Liberty. See: Parashat Salamonov And Parashat מרגליות".
- Justice Dorner explains when, according to her, an infringement of the right to property will be permitted in the constitutional era (Name, paragraph 8, p. 556, opposite the letters B-C):
"Damage to property is permitted today, as stated, in section 8 of the Basic Law (Limitation Clause) only in a law that is appropriate to the values of the State of Israel, which is intended for a proper purpose and to an extent that does not exceed what is required, or according to such a law by virtue of explicit authorization therein. Within the scope of the court's duty to respect the rights enshrined in the Basic Law, it is also obligated, in exercising the discretion given to it by law, to infringe the right in such a way that it will not be harmed except to the minimum extent required. This obligation, which derives from section 11 of the Basic Law - which obligates all government authorities, including the court, to respect the rights enshrined in the Basic Law, including the right to property, to the extent that this is consistent with the existing legislation on the basis of which they operate - also applies with regard to the interpretation of laws whose validity is preserved under section 10 of the Basic Law in the exercise of discretion by virtue of them. See: Additional Hearing High Court of Justice 4466/94 Nusseibeh v. Minister of Finance, IsrSC 49(4) 68, at p. 88; Civil Appeal 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman, IsrSC 55(4) 629, at p. 641."
- Judge Dorner further explains that "This principle applies to the arrangements regarding the appointment of a receiver." (Name, Name, in front of the letter D).
After quoting her words in Parashat Salamonov , which were written in the matter of the temporary foreclosure, Justice Dorner adds and explains her position regarding receivership, in this language (Name, Name, between the letters 6-7):