Civil Case (B.Y.) 14446-07-22 Amir Ben Hamo vs. Madonna Efron - part 3

On behalf of the defendant, the defendant and her husband, Mr. Avraham Efron, testified.  The defendant submitted an affidavit of testimony on behalf of Attorney Lior Bazov, but he did not appear to testify, and accordingly the defendant's attorney announced that he was relinquishing his testimony (p.  2 of the transcript of the hearing of March 12, 2024, para.  27).  In addition, an affidavit was filed on behalf of Mr. Eliezer Flint, a realtor who was alleged to have accompanied the couple in purchasing the apartment.  Mr. Flint did not appear for his testimony.  The witness was given the opportunity to appear for his testimony by means of a visual conference (also at the request of the defendant's counsel, and see the motion of March 11, 2024), but the witness did not appear for his testimony and it could not be held.

13. The parties summarized their arguments in writing, and now it remains to decide the disputed question.

Discussion and Decision

14. Section 14 of the Real Estate Brokers Law, 5756-1996 (hereinafter: the "Realtors Law") states that:

“)a) A real estate broker will be entitled to brokerage fees from a client if all of the following are met:

• He was licensed under this Law at the time he was engaged in brokerage or was subject to a temporary exemption in accordance with the provisions of section 20 at that time;
• He complied with the provisions of section 9;
• He was the effective factor that led to the parties entering into a binding agreement."

15. As has been ruled more than once, in order to decide the question of the identity of the effective party in the transaction, the court must take into account, inter alia, the degree of intensity of the broker's actions, the scope of contacts with the parties, the number of meetings and the mediator's involvement in the negotiations and the formulation of the terms of the transaction. In addition, the court must examine the existence of additional factors that helped the parties reach an agreement and the extent of their assistance.  Significant weight is given to the degree of involvement and the level of intensity of the broker's actions (see: Civil Appeal 2144/91 Moskowitz v.  Estate of the late Beer, IsrSC 48(3) 116, 123 (1994); Civil Appeal 7247/97 Yitzchakov v.  Mordechai Aviv Construction Enterprises Ltd., IsrSC 56(1) 842, 847 (2001); Civil Appeal 2708/14 Israeli v.  Aharoni, para.  8 [Nevo] (December 6, 2015), hereinafter: "The Aharoni Case" and Civil Case (Tel Aviv District) 39433-03-12 Israeli v.  Aharoni [Nevo] (March 12, 2014) hereinafter: "The Aharoni Case in the District Court").
16. As held inthe Aharoni case in the District Court:

"The test is a test of causality...  But the realtor does not fulfill his duty by proving factual causation alone, it is not enough that the realtor is a certain factor in the chain of causation, in the sense of a reason without which there is no transaction.  The demand is for a factor that is efficient.  The emphasis is not on the multiplicity of possible and different actions, nor even on their nature, but on the effectiveness of the activity.  The realtor must be the causal factor in the relationship between the seller and the buyer, and as is well known, the main characteristics of the brokerage operation are the initiation of a meeting between the buyer's desire to sell and the buyer's desire to purchase the property, the completion of the transaction as a result of that meeting, and the condition of payment in the execution of the transaction in such a way that without a transaction, there is no remuneration even if the work was invested." (ibid., para.  9).

17. And this brings us to our matter. The initial contact between the parties was created by the defendant following the publication of the apartment on the Facebook network on the plaintiff's page.  In response to her request, the plaintiff presented her with preliminary and general details - that the apartment was being sold in receivership and that it would be possible to see the apartment a week later.  It was also proposed to transfer appraisals.  The defendant was informed that the price would be determined after the submission of bids by additional interested parties, and that a bidding process might also take place (Appendices B and E to the plaintiff's affidavit).
18. Following this initial correspondence, the agreement was transferred to the defendant for digital signature. There is no dispute that the defendant signed the agreement.  The defendant claims that she was not explained what she was signing and that she did not understand its essence and meaning, but this claim was made merely and half-heartedly, and in any event it was not proven.  The transcript of the conversation that took place between the parties after the signing shows that the plaintiff explained to the defendant a general explanation of the brokerage agreement (p.  23 of Appendix E to the plaintiff's affidavit, paras.  3-11).  It is presumed that a person who signs a document understands what he has signed (see: Civil Appeal 6055/04 Landau v.  Bank Leumi Le-Israel in Tax Appeal [Nevo] (July 12, 2006); Civil Appeal 6645/00 Arad v.  Even Piskei Din N.  (5) 365 (2002)).  Therefore, I did not find that there was a defect in the agreement or in the circumstances that led to its conclusion.  In any event, the defendant did not argue that the agreement should be annulled, but rather that its main argument was regarding the plaintiff's involvement and his being the effective factor in the transaction.
19. After the signing, another telephone conversation took place between the parties (Appendix E to the plaintiff's affidavit, p. 21).  In the course of this conversation, the plaintiff provided the defendant with additional details about the apartment relating to a previous offer made by his client, who submitted an offer for the apartment in the amount of ILS 3,120,000, which was not accepted (p.  22 of Appendix E).  The plaintiff suggested to the defendant that it submit a bid in an amount not exceeding ILS 3,200,000 (ibid., at p.  24, s.  2).  The plaintiff directed the defendant to coordinate a date for a visit to the apartment with the receiver and at her request he said that he would also come to the date of the visit (ibid., at p.  28, paras.  13-14).
20. The plaintiff claimed that a number of additional conversations were made (paragraph 4 of the plaintiff's affidavit) and attached as evidence a voice message dated January 12, 2022 (p. 29 of Appendix E to the plaintiff's affidavit).  However, the language of the notice indicates that it is a masculine formulation, so that this notice was apparently intended to another customer other than the defendant.  In any event, this notice contains no additional data beyond what has already been given to the defendant in the conversation.
21. The plaintiff provided the defendant with documents in connection with the apartment, which included an invitation booklet to make proposals prepared by the receiver that included an assessment - without amounts or calculations (Appendix F to the plaintiff's affidavit). These documents are also not documents that the defendant could not have received from the receiver herself, and they do not provide significant assistance in concluding the transaction in the end.
22. After that conversation, the plaintiff contacted the defendant via WhatsApp on January 15, 2022, in order to be updated on whether she had scheduled a visit to the apartment (Appendix C to the plaintiff's affidavit).
23. From that correspondence on January 15, 2022, until April 11, 2022, there was no contact between the plaintiff and the defendant (paragraph 9 of the plaintiff's affidavit). There is no dispute that the plaintiff did not visit the apartment with the defendant (paragraph 14 of the plaintiff's affidavit; ibid., at p.  7, para.  18).  The plaintiff testified that he did not speak with the receiver about the defendant's transaction (p.  10, paras.  1-2).  This is also evident from the transcripts of the conversations that he attached (Appendix 13 to the plaintiff's affidavit).  It is not clear from these transcriptions when they were made, and in any case general conversations emerge from them.  In this context, I will note that the transcriptions were submitted without a lawful opinion, and accordingly they cannot be given weight.
24. The defendant also testified that apart from these conversations, nothing was done by the plaintiff (pp. 14, paras.  27-28).  She also testified that as she was informed by the receiver, this was not a property that was in the exclusive domain of one realtor or another.
25. Thus, the testimony of both the plaintiff and the defendant indicates that the plaintiff's involvement in the transaction was in publishing the offer on his Facebook website, in conveying details about the property to the defendant, and in providing background and details about a previous offer that was submitted to the receiver. The plaintiff was not involved in the process of submitting the offer, setting the price and signing the agreement.
26. As can be seen from the body of evidence, the plaintiff's actions at most gave the defendant access to the receivership proceeding, but there was no certainty that the defendant would win the bidding proceeding. In this context, the price of the transaction was also different from the price that the plaintiff told the defendant to offer.  At the end of the day, the price of the transaction was higher than the price that the plaintiff said to offer at more than ILS 300,000.
27. In this context, no additional witnesses were brought that could shed light on the extent of the plaintiff's vitality for the transaction to take place. the receiver, who could testify about the bidding process and give additional details regarding the benefit of the details provided by the plaintiff to the defendant; and whether these actually contributed to the formation of the deal; He was not brought to testify.
28. Thus, I did not find that the plaintiff was the effective factor that led to the transaction. With regard to the involvement of a realtor in a bidding process in receivership, the Honorable Justice Sohlberg has already commented in the Aharoni case:

"On a side note, I will say that due to this point in itself, there is no need to discuss the question raised by the respondent, namely whether it is possible to determine that a broker, who mediated between a rider and a tender proceeding (such as to inform him of the existence of the tender) or a bidding proceeding in receivership, is considered the 'effective factor' for the engagement between the parties.  In my opinion, there will indeed be situations in which such an intermediary will be considered the effective party for the engagement, both because the tender process is publicized to the public, and because the tender process itself may be considered as a foreign party intervening in the transaction..." (ibid., paragraph 15).

29. Although these words were said on a side note, they are also relevant to our case. In our case, the plaintiff was not the effective factor in the engagement and the bidding process constitutes a foreign party intervening in the transaction.  Its results are not under the control of the realtor but rather by the control of the receiver, and therefore the very process of bidding in receivership prevents the plaintiff from being the "effective factor" in the agreement between the buyer and the seller (see also in this regard in Civil Case (Shalom Tel Aviv) 24727-11-19 Daniel Properties (D.D.) in Tax Appeal v.  Meshulam Levinstein Engineering and Contracting in Tax Appeal [Nevo] (March 20, 2023)).
30. In light of the aforesaid, the lawsuit should be dismissed. More than necessary, I will relate to the argument that was raised regarding the severance of the relationship in light of the actions of another mediator.
31. The defendant claimed that in view of the plaintiff's lack of involvement, she turned to another broker, who assisted and led to the transaction. In support of this claim, the defendant attached a document titled "Ordering Brokerage Services" from Albert Elchildiev (Appendix B to the defendant's affidavit) as well as a document titled "Affidavit" signed by Eliezer Flint, which indicates that he was the one who accompanied the defendant in the transaction (Appendix A to the defendant's affidavit).  She also attached a receipt tax invoice that was issued to the defendant's husband, Mr. Avraham Efron, on November 9, 2022.
32. The defendant's evidence regarding the involvement of the other intermediary does not establish the required evidentiary basis:
33. The document for ordering brokerage services is not signed, it does not specify necessary details such as the details of the client, the properties offered to the client, and the requested price. Alchilidayev was not brought to testify, so I did not find any evidentiary weight to be given to this document and it is not possible to base a factual finding regarding the defendant's engagement in additional brokerage services.
34. Flint's "affidavit" is not lawfully verified and accordingly cannot be accepted as testimony. Mr. Flint was summoned to testify, but did not appear.  Mr. Flint was given an opportunity to testify in a visual conference, but since the minimum requirements required to testify in this manner were not met, his testimony was not allowed.  Thus, the version that it was Mr. Flint who accompanied the defendant in the transaction was not proven.

• The invoice attached as proof of payment of the brokerage fees to Mr. Albert Alchildiev is dated November 9, 2022. This is while the agreement with the receiver is dated February 27, 2022, and the court's approval was given at the end of March.  The defendant did not provide an explanation for the considerable delay in issuing the invoice.  Taking into account the evidentiary difficulties detailed and the difference in time between the realization of the transaction and the invoice that was issued, I found the plaintiff's version that this invoice was issued as a defense after the warning letter was sent on his behalf as more reasonable than the defendant's version.

33. Therefore, I have not found it possible to accept the defendant's version regarding the involvement of another broker in the transaction, a version that was created for the purpose of this legal proceeding and is not anchored in evidence.
34. However, as stated, this does not change my conclusion. The plaintiff is the one who must prove his claim, lift the burden and convince the balance of probabilities that he was the one who was the effective factor in establishing the transaction.  He did not do so, and therefore the lawsuit should be dismissed.
35. In light of all of the above, the claim is dismissed.

In view of the defendant's conduct in the course of the hearing - both with respect to the version that was not proven as to the involvement of another broker (which raises questions as to the veracity of the documents attached by her in this regard), and with respect to the summons of Mr. Flint, I did not find it necessary to make an order for costs and each party will bear its own costs.