Course for its implementation
- After reviewing the counterclaim's pleadings; Please; In repentance; In response to it, I am of the opinion that the application should be accepted, but a minimum amount of bail must be deposited from what is requested. Here are my reasons.
- There is no dispute that Workspace is a limited liability company and therefore the default is that it must deposit a guarantee to ensure payment of expenses unless it proves that it is able to bear the payment of expenses or if the court determines that in the circumstances of the case, Worksspace should be exempted from depositing a guarantee. The burden of proving financial strength rests on the company's shoulders - in this context, Workspace claimed that it has good financial strength, since it paid a total of ILS 12,000,000 to Atidim over a period of 3 years (see Appendix A to the answer); arguing that in the event that Atidim had not canceled the lease agreement, Workspace would have continued to pay every month an amount that exceeded the guarantee; that the other branches are active and only the branch that is the subject of the lawsuit has been closed; Worksspace denies Atidim's claims that it did not pay payments (paragraph 14 of the response) and claims that they were created by Atidim retroactively; Worksspace denies debts to the state and clarifies that the foreclosure imposed in August 2019 in favor of income tax was in a low amount (ILS 8,000) and was erased when it was imposed; They deny a municipal tax debt to the Tel Aviv Municipality in the amount of ILS 230,000 and claim that the parties reached an agreement in August 2020.
- After considering the claims that have been raised, I am of the opinion that Workspace did not meet the burden placed on its shoulders to prove its financial strength, not even at the outset. Workspace did not attach statements of account, credit line, balance sheets, opinions on behalf of the company's accountant, and did not provide references regarding its rights in the assets. On the other hand, the state of affairs indicates a lack of financial strength - all that was found in the framework of the foreclosure orders was a deposit in her account in the amount of only ILS 50,000, no assets were found in the name of Workspace, it is not clear what the status of Sapir who gave an affidavit on behalf of the company (see the claim that in a letter dated June 23, 2019 - Appendix 16 to the statement of defense - it is claimed in paragraph 8 that Sapir signed the addendum in the absence of authority). The attached card does not attest to financial strength in the present time, but at most to meet past payments, and see also Atidim's claim that some of the payments were paid by another company - Markspace - and that it does not correspond to the card maintained by Atidim (paragraph 22 of the response).
- I am aware of Workspace's claims that it has no obligations to the Tel Aviv Municipality and the Income Tax Authority - but the agreement was not attached to my review, and when, as stated, no references were attached as required by the case law, it is not possible to determine that Workspace has financial strength, nor was there any reference that indicates that the other branches are indeed active and profitable.
- This conclusion is also strengthened in light of the legal proceedings that have been opened against Workspace, including an insolvency proceeding (as detailed above). I am aware that these claims were raised for the first time only in the context of the response to the response and Workplacespace was not given the opportunity to respond. However, the table attached to the response allegedly includes claims totaling hundreds of thousands of shekels filed by its employees, which cast a heavy cloud over Worksspace's financial situation.
- From all of the above, Workspace did not meet the burden placed on its shoulders to prove its financial strength in a manner that justifies the contradiction of the presumption set forth in section 353A of the Companies Law. In the circumstances described above, I also did not find it appropriate that the circumstances of the case justify not obliging the bail.
- As to the chances of the claim - due to the early stage of the proceeding (before a hearing was held in the presence of the parties - the case was referred to me on the day of filing this application, November 8, 2020), it is not possible to determine that the chances of the claim are very high or very low, and see the L.N. Engineering above. The court will have to examine the arguments raised in this regard, including the lack of good faith claimed by Atidim and the transfer of clients to other territories.
- The amount of the guarantee - in this regard, it is appropriate to bring the following:
"The proper test is not a technical test, i.e., doubling the amount of the claim by a certain percentage, but rather what is the rate of expenses that can be expected to be imposed on the plaintiffs if their claim is rejected."