For the purpose of granting an order for the payment of accounts, Mr. Zaruk must prove, even prima facie, that he has a right to sue with respect to the funds in respect of which he seeks to receive accounts (Civil Appeal Authority 8266/11 UBM V. MAOZ TRAVELS Ltd. (published in the databases; 2012; in paragraph 28 of the decision of the Honorable Deputy President, as it was described at the time, Naor). That's what he did. On the prima facie level, it is clear that Mr. Zaruk did not receive all the payments for his cases, since the main claim of the bonus company against him is for offset, due to theft of trade secrets, due to a violation of the non-compete clause, and due to low income from the advances paid. Hence, it admits the existence of a debt, but claims an offset. This is sufficient to show the basis of an alleged debt. As we have seen, the non-competition clause and the claim of theft of a trade secret cannot serve as an obstacle to accountability; And to the extent that there is substance to the claims of offset, they must be clarified, with the burden in this matter resting on the defendants.
Appointment of an expert who can examine the whole of the claim in relation to the period after the filing of the claim
- Since the copy of the documents relevant to the exhaustive preparation of the accounting is still missing, and since the conditions set forth in the case law for the issuance of an order for the provision of accounts have been fulfilled, the appointment of an investigative expert should be ordered, as requested by Mr. Zaruk in his claim (in paragraph 119(a(; and in chapter 9.2). This will receive the material from both parties and determine the amount of the remaining debt to the bonus company to pay Mr. Zaruk.
Regulation 123 of the Civil Procedure Regulations, 5744 - 1984 applies to our case, given the date of filing the claim, and today Regulation 88 of the Civil Procedure Regulations, 5779-2018 applies to our case. and I therefore agree to the relief sought on its basis.
- Already in the statement of claim it was noted (in paragraph 119.b( that Mr. Zarrouk is petitioning for an injunction in relation to the sums that have not yet been paid to a bonus company, and from which the consideration to which he is expected to be derived. In other words, the investigating accountant must also perform the calculation in relation to the considerations received since the filing of the claim until today in the hands of a bonus company. Hence, the claim of the Bonus Company in its summaries in the main claim (paragraphs 216-218( should be rejected, that the claim can relate only to the considerations it received prior to the filing of the claim.
- Zaruk petitioned that I determine right now that the defendants must pay him the sum of ILS 2, 834, 708 that arises from the present evidence material. I do not intend to do so, since in my opinion the expert will have to address the totality. At the same time, at the end of this proceeding, I will rule some of the expenses in favor of the plaintiff, when it became clear that there is no basis for the defendants' claim that nothing is due tothe plaintiff . In accordance with the results of the final calculation, the final amount of expenses for this procedure will also be determined.
There is no reason to apply the increased profit percentages in the draft 2012 agreement or other accounting elements therein
- According to Mr. Zaruk, although the 2012 draft (Appendix 5 to the claim( was not signed, it was agreed between the parties that the percentage of profit to which he would be entitled would be increased.
The claim should be rejected.
- Zaruk further claimed in his statement of claim (in combination with paragraphs 51 and 55( that among the agreed clauses in the draft is also clause 10 of the draft, but this stipulates that the entire draft will be canceled retroactively, if Mr. Zaruk does not continue to work for a bonus company for at least three years from the date of its inception.
In Mr. Zaruk's reply to the main prosecution (at paragraphs 73-76), he admitted the validity of section 10. Moreover, in his main affidavit he also admitted its validity (paragraphs 41 and 46).