Once my decision has been detailed, I will refer to its reasoning at length.
The existence of an agreement to include clause 3.1.3 (later 3.1.4) in the agreements between the parties:
- The parties devoted a wide range of topics to the issue of the interpretation of clause 3.1.3, but I am of the opinion that the decision in the proceeding against the plaintiff's claims is rooted first and foremost not in the interpretation of the clause, but on the question of whether there was an intention to include it in the framework of the agreements between the parties in the first place. I am of the opinion that this question should be answered in an absolute no. This is because the evidence clearly shows that the parties did not negotiate at all in the framework of which they negotiated and negotiated the plaintiff's entitlement to receive options, and all the more so they did not agree to include a clause stating this in the framework of the agreement between them. The absence of any negotiations or discussion regarding this right stands out against the background of the fact that it is a right whose monetary value is large (on the face of it is identical to the value of the monetary commission), and moreover, taking into account the fact that the parties conducted extensive negotiations regarding the scope of the plaintiff's entitlement to a monetary commission and, in particular, the plaintiff's possibility of converting the monetary commission into shares. Moreover, I am of the opinion that an examination of the sequence of events that led to the signing of the first and second agreements – in which this clause was included – shows that this clause was left in the wording of the agreements by mistake, and in addition, the clause was added to the text of the fourth agreement without consent.
And in more detail – first, as I determined in the chapter of facts (see paragraph 8 above), the beginning of the engagement between the parties is the hiring of the services of Peleg and the plaintiff for the purpose of providing fundraising services to the company. For this purpose, the text of the basic agreement, which the plaintiff signed. At a later stage, the possibility of listing the company on the Sydney Stock Exchange arose. In light of this, Peleg sought to add to the text of the basic agreement a clause that allows the plaintiff to convert the financial commission to which she will be entitled to the company's shares. This is clearly evident from the e-mail message sent by Peleg to the Foundation and the Foundation to discuss on March 28, 2018 – as detailed in paragraph 11 above of the judgment. From this notice, it appears that the parties agreed that the plaintiff would be entitled to invest all or part of the financial commission back to the company. Therefore, it was requested to add a clause in which the plaintiff would be given the option (option) to purchase shares for a period of 12 months. In Peleg's words, as already cited above: