12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
According to the statement of claim, the amount of the debt currently stands at ILS 22,051,415.07 (principal of ILS 18,900,000 plus interest and linkage as of September 22) with no interest charges and arrears in accordance with the agreement (section 2 of the statement of claim). However, it will be possible to determine the full extent of the debt only in the month of January 26 (paragraph 5 of the statement of claim). It was argued that the parties and Nofim are in negotiations to repay the debt, which may have made the claim redundant (paragraph 2 of the statement of claim), and that the claim is already being filed in order to block the defendants from claiming the statute of limitations (paragraph 7 of the statement of claim).
- Statements of defense have not yet been filed.
Request 4 - Motion to dismiss the claim in limine due to non-payment of a sufficient fee
The parties' arguments please
- According to defendant 4, the claim should be dismissed in limine due to non-payment of a sufficient fee. It was argued that the claim was filed without justified reason as a claim for declaratory relief, when it is nothing more than a disguise for a petition for monetary relief in the amount of ILS 22,051,415.07, in order to evade payment of fees. It was argued that all the facts required for the purpose of clarifying the claim have been known to the plaintiffs since January 1, 2021, and the causes of action have already been formulated. The remedy to which the plaintiffs petition is known and is in the amount of all the loans that the plaintiffs made available to Nofey, and the plaintiffs even estimated its rate in the statement of claim. The plaintiffs' claim in the statement of claim that it is not possible to petition for financial relief due to the existence of negotiations is irrelevant for the purpose of classifying the claim. If the value of the relief is reduced as a result of the negotiations, the plaintiffs are entitled to amend the statement of claim. As for the plaintiffs' claim that they petitioned for declaratory relief since the full damage had not yet been consolidated, it was argued that if the claim is accepted, the time has not yet come to clarify the claim and it should be dismissed out of hand.
- According to the plaintiffs, the claim was filed as a claim for declaratory relief due to the existence of a legitimate interest, which is to stop the statute of limitations in light of the date of signing the loan agreement on January 15, 2018, due to the refusal of defendant 4 to extend the limitation period. It was argued that Nofim's debt had not yet been consolidated, the plaintiffs' damage had not yet been consolidated, and therefore the defendants' liability had not yet matured, and therefore it was not possible at this time to petition for monetary relief, but only for declaratory relief. Negotiations are also underway with Nofim which can make the investigation of the claim redundant. It was argued that the plaintiffs do not intend to evade paying a fee, and that if a financial claim is filed, they will pay the fee in accordance with the regulations.
- Copied from NevoSince this is a fee charge, a response from the National Planning Authority was also According to a civil claim, this is essentially a financial claim and the plaintiffs must pay a fee accordingly. It was argued that it is possible to estimate and calculate the financial relief in accordance with the future date of repayment of the loans in the month of January 26. The statute of limitations claim is unclear and unfounded. In the case of a tort claim on the grounds of negligence or breach of statutory duty, the limitation period begins from the date the actual damage occurred. According to the plaintiffs, their damage will only be consolidated on the date of repayment of the loan in January 26, and therefore there is no concern that the cause of action will be statute of limitations. In addition, the tort of negligence requires the existence of actual damage, and it is not possible to petition for declaratory relief regarding the existence of negligence without proof of concrete damage. In the absence of damage, there is no tort and the land is dropped under the lawsuit, and if damage is caused, the plaintiffs must assess it and pay a fee accordingly. Insofar as it is a cause of action based on a breach of fiduciary duty as alleged by defendant 3, the statute of limitations begins from the date on which the beneficiary became aware that the trustee breached his duty as a trustee. In our case, we are dealing with the original repayment date of the loans in the month of 1/21 and not from the date of presentation of the alleged misrepresentations, and the plaintiffs are entitled to file a claim until the month of 1/28. It was argued that if the declaratory judgment is granted, the plaintiffs will be required to go through an additional proceeding in order to receive the operative relief, and for this reason, the plaintiffs should also be instructed to petition for monetary and non-declaratory relief at this time.
Discussion and Decision
- After examining the arguments of the parties in the application and the statement of claim, I am of the opinion that the essence of the relief to which the plaintiffs petition is financial. I have not been persuaded of the existence of a legitimate interest in the investigation of the claim as a claim for declaratory relief. The plaintiffs must amend the statement of claim while petitioning for appropriate monetary relief only or together with declaratory relief and payment of a fee accordingly.
- In accordance with the Courts (Fees) Regulations, 5767-2007 (hereinafter: "the Fees Regulations"), the fee rate is determined in accordance with the relief requested, distinguishing between an action in which the plaintiff petitions for a fixed sum (Regulation 6 of the Fees Regulations) and proceedings that consider their value to be inexpressible in money, in the framework of which "a declaratory order, an order not to make, an injunction or an enforcement order, except for a claim for monetary relief as a result of such an order" (Regulation 3(1) of the Fees Regulations).
- In Civil Appeal 8835/21 Tyre v. Hadad , the Honorable Justice Willner discussed the tests outlined in case law for the purpose of classifying relief as monetary or non-monetary:
"11. Given the significant difference that may exist between the amount of the fee to be paid for monetary relief and non-monetary relief, there is a concern that a plaintiff will formulate monetary relief under the guise of a non-monetary relief, just in order to avoid paying the high fee.