Caso Civil (Tel Aviv) 75948-12-20 Shabtai Alon contra Michael Mirilashvili - part 2

The parties' evidence

25. Despite the decision to split the hearing, there remained many disagreements between the parties regarding the preliminary proceedings that required the court's intervention in making appropriate decisions, which I did not find necessary to elaborate.
26. The parties submitted affidavits of the main witness.
27. On behalf of the plaintiff, affidavits were submitted by Yossi, of Bezalel, who was alleged to have been involved in the diamond transaction together with Thomas; of Reuven (Robert) Elashvili, the plaintiff's cousin who served as a foreman at the diamond factory; of Moshe Mazor, a friend of Yossi's who works with him; of Mr. Eli Beg, a businessman who was a partner in the purchase of a casino with Bezalel and the defendant; of the plaintiff's wife, Tami Alon (hereinafter: "Tami"); of Anat Alon-Beck, the plaintiff's eldest daughter. In addition, an undercover investigation report was submitted by ITI Investigations and Strategic Consulting.
28. After the affidavits were submitted, the defendants petitioned for the release of the affidavits of the main witness and certain exhibits submitted by the plaintiff, as well as for the deletion of clauses from the affidavit of his main testimony. This was on the grounds that these were witnesses who were not included in the list of witnesses; that there were documents that were not disclosed by the plaintiff in the framework of preliminary proceedings; Because the affidavits include matters that are not relevant to the first stage of the hearing.  After receiving the plaintiff's response to the request, I determined as follows:

"1.  It is clarified on the website that as determined in my decision of March 3, 2024, the hearing in the first stage will revolve around the plaintiff's claim that he is entitled to receive 5% of the scope of the investment or 10% of the profits, all as detailed in the decision (page 4, lines 6-10).  I have repeated this matter several times.  It is also worth referring to my decision of September 13, 2024, in which I clarified that prima facie, the testimonies of close ties between the plaintiff and the defendant as relatives do not contribute to proving the claim detailed above.  After this decision, the plaintiff submitted his affidavits in which he included the matters that he claimed were sufficient to prove his claims.  On the other hand, the defendants claim that these matters are not relevant to prove the claim.  Without referring to specific parts of the affidavits that were submitted, it appears that parts of the affidavits are irrelevant to prove the claims and can create a certain atmosphere.  However, there is no place right now to delete affidavits or parts of them.  These are the things that the plaintiff and the witnesses on his behalf testify, and with which the defendants must contend.  If the defendants believe that parts of the affidavits are irrelevant, there is no need for them to relate to every line and every section.  They can relate to things in general terms and claim that things are irrelevant, as they did in their request.  For the same reason, there is also no need to question the plaintiff and the declarants on his behalf about matters detailed in the affidavits that in the defendants' opinion are irrelevant, while noting that failure to interrogate does not constitute an admission of what is written.  The same is true of matters that constitute an expansion of the front.  It should also be clarified that the court will not allow the expansion of the façade.  The court will examine the matter at the end of the proceeding after the evidence is heard and the parties' summaries are submitted.

2. For the same reasons, I see no reason to delete the affidavits of the testimony of Mr. Eli Bag and Tami Alon.  I note that in my decision of September 13, 2024, I allowed the submission of affidavits of those who were not included in the list of witnesses.
3. With regard to the issuance of exhibits that were not disclosed and reliance on them, the plaintiff claims in his response that at the time of the preparation of the affidavits, documents and video recordings were discovered, which he considers relevant to the proceeding, and therefore he submitted an updated affidavit of discovery of documents. Considering the date of its submission together with the affidavits of the main witness, before the affidavits of the main witness of the defendants were submitted so that the matter can be addressed therein, there is no reason to issue them.
4. As for the undercover investigation report - this is not an affidavit or a lawfully prepared opinion and therefore should not be considered as part of the plaintiff's evidence.  A court file is not a mailbox into which documents are simply laid.  Therefore, I order that the report be removed from the file and that the court ignore its contents. 
5. As for the legal expenses - it is puzzling why the plaintiff did not detail the documents that he has now added on the date allocated for this purpose. The plaintiff's response did not provide a satisfactory explanation for this.  This conduct justifies charging him with appropriate expenses.
6. Finally, I reject the defendants' request except for the matter of the undercover investigation report as stated above. Notwithstanding the result I have reached, in light of the plaintiff's burdensome conduct when he added declarations that were not included in the list of witnesses on his behalf and the attachment of various documents that were first presented only upon the submission of his affidavit as stated above, I oblige him to pay the defendants expenses in the sum of ILS 6, 000, regardless of the results" (see my decision of October 15, 2024).
7. In addition, the plaintiff petitioned to summon 9 additional witnesses without submitting an affidavit. These included Asher Nahyasi, who allegedly served as a gemologist that the plaintiff recruited to provide advice in connection with the diamond transaction; Mrs. Liora Mirlashvili, the defendant's wife; Mr. Itzik Haim, Diamond Courier; MK Aryeh Deri; Mr. Meir Shitrit; Mrs. Ruthie Shitrit; Thomas, a businessman who was allegedly one of the initiators of the diamond deal; Mr. Vacilasev (Yitzhak) Mirilashvili, the defendant's son; and Mrs. Yulia Pritzker, an employee of the defendant.  In the framework of the motion, the plaintiff claimed that these are witnesses that are relevant to the questions that are being discussed in the first stage of the proceeding.
8. The defendants submitted the affidavit of the defendant and of Boris, Bezalel's brother, who was involved in the diamond transactions. They objected to the summoning of the witnesses, except for Thomas.  Alternatively, they requested that if the court believes that the defendant's wife and son, as well as Ms. Yulia Pritzker, should be summoned to testify, that they be allowed to submit their affidavits.
9. In the hearing that took place on December 2, 2024, and in light of the enormous number of witnesses that the plaintiff requested to summon, in addition to the affidavits he submitted despite my decision regarding the splitting of the hearing, an inquiry was conducted regarding the relevance of these witnesses to prove the first stage of the lawsuit. The plaintiff's interrogation at the hearing revealed that a significant number of the witnesses were not present at the time of the meetings in which he claimed that the matter had been agreed upon between him and the defendant.
10. At the end of the hearing, the parties reached an agreement that the plaintiff would announce who were the 2-3 witnesses who appeared on the list of witnesses who did not file an affidavit and whom he requested to be summoned to testify. It was further agreed that if the defendants wish to submit an affidavit of any of the witnesses that the plaintiff requested for their summons, this will be given to them.
11. Indeed, after the hearing, the plaintiff announced that he was requesting to summon 3 witnesses: Asher Nahiasi, Liora Mirilashvili and Yulia Pritzker. Following his statement, the defendants announced that they would submit affidavits of Liora Mirilashvili and Yulia Pritzker, which were submitted.
12. Three evidentiary hearings were held in the case, during which the declarants were cross-examined. Asher Nahyasi, whom the plaintiff requested to summon for a preliminary interrogation, was also interrogated.

Discussion and Decision

35. After reviewing the pleadings and the parties' evidence, and after hearing the testimonies and reading the summaries, I decided to dismiss the claim. This was after the plaintiff did not prove that the defendant undertook to pay him brokerage fees for the first transaction or that he was entitled, as a partner of the defendant, to pay 10% of the profits of the second transaction.
36. On the website, I find it necessary to note that the proceeding was conducted while the plaintiff hurled harsh accusations against the defendant, whom he accused of committing serious criminal acts, threatening witnesses and buying witnesses, in order to prevent the plaintiff from receiving what he was entitled to, according to him. The affidavits described a broad scope that exceeded the dispute as defined by the court. As part of the proceeding, the murky relationship between the parties was exposed.  In its judgment, the court will focus its discussion on the arguments as detailed in the decision to split the hearing and examine whether the relevant evidence and testimonies lead to the conclusion that the claim should be accepted or not.  In addition, I will note that I am not convinced that the defendant threatened witnesses or bought their testimony as the plaintiff claims.

The Statute of Limitations Claim

37. Before discussing the arguments on their merits, I will examine the claim of limitation raised by the defendants.
38. As noted, in their statement of defense, the defendants claimed that since the diamond deal was concluded in 2009, the claim became statute of limitations as early as 2016. They argued that there is no substance to the plaintiff's baseless claim that only in 2015 did the defendant first deny his obligations to the plaintiff, and that its casual raising does not save his claim from being dismissed out of hand.
39. In the reply, the plaintiff argued that the claim of limitation raised by the defendants lacked a factual and legal basis. According to him, the defendants' argument is based on an erroneous legal approach, according to which the statute of limitations begins on the date of the conclusion of the agreement that was breached by the defendant, whereas according to the law, the limitation period begins on the day the cause of action was born. Naturally, there is no reason to file a lawsuit before one of the parties to the agreement denies its obligations under the agreement.  He argued that according to the Supreme Court's ruling, the statute of limitations begins when the plaintiff has the power of law, which means that a dispute has arisen and the plaintiff has a real possibility of filing a lawsuit and obtaining the requested relief if he meets the burden of factual proof and the legal burden of substantiating his claim.
40. According to the plaintiff, the dispute between the parties arose years after the completion of the financing transaction and less than 7 years before the filing of the lawsuit, when the defendant denied the plaintiff's rights. In addition, he argued that the profitability of the diamond transaction can only be determined after the execution of the transaction has been completed and it will be possible to quantify the economic results of the relevant transaction. According to him, the defendants themselves claim that by the time the statement of defense was filed in April 2021, some of the diamonds had not yet been sold, so according to their approach, there is still plenty of time to file the proceeding.  According to him, as of 2014, a significant portion of the diamonds purchased as part of the transaction had not yet been sold.  According to him, it was agreed between him and the defendant that the profits would remain in the hands of the defendant and would be invested jointly by him, with the plaintiff entitled to receive additional profits from the additional investments.  In fact, only in 2015, after he contacted the defendant several times in order to obtain a picture of the profits generated in the transaction and his applications were returned empty-handed, did he discover that the defendant was denying his rights.
41. Section 6 of the Statute of Limitations, 5718-1958 states that "the limitation period begins on the day the cause of action was born". The rule that was formulated in the case law is that the cause of action consists of all the facts that entitle the plaintiff to the relief he demands from the defendant, and the statute of limitations begins "on the day on which if the plaintiff had filed his claim with the court and had proved all the material facts, he would have won a judgment" (see Civil Appeal 595/22 Bar Idan Production and Development Ltd.   Shafir Regional Council, paragraph 13 (published in Nevo, March 28, 2023)).  Thus, the cause of action is born on the day on which the facts that entitle the plaintiff to the requested relief were formulated.
42. In the present case, as stated above, the rift and disconnect between the parties was created back in 2012. From the testimonies of the plaintiff and his close family members, Tami and Yossi, it emerged that after this rupture, they began to demand the sums due to the plaintiff. Thus, Tami testified that at that time the defendant "was cruel to Shabtai, as if he had removed him from all things, from all his obligations." And that "he exploded at him and said to him, 'That's it, punishment.  You don't receive the money'" (transcript of July 2, 2025, p.  41, lines 6-7, 10-11).  Later, when she was told that they had not demanded the money from 2012 until the filing of the lawsuit, she replied: "We demanded it from the first moment" (p.  43, line 36) (regarding the date of the rupture and the raising of payment demands, see also Tami's testimony in paragraphs 55-57 of the affidavit and on p.  40, lines 23-25, p.  42, lines 38-39 and p.  43, lines 7-8 and lines 34-36, and see also paragraphs 146-147 of the plaintiff's affidavit, Paragraph 82 of Yossi's affidavit and his testimony on p.  87, line 32 to p.  88, line 2 of the transcript).  Hence, at that time, the facts that entitle the plaintiff to the requested relief were prima facie existed.  If the rupture occurred in 2012, then the lawsuit could have been filed no later than 2019.  Hence, the filing of the claim in December 2020 was after the claim became statute of limitations.
43. I will note that the plaintiff raised an argument in his testimony according to which the defendant asked him several times to wait upon receipt of the funds due to him from the profits received from the sales of the diamonds and to leave them "within the business" , claiming that the funds were necessary for the purpose of additional diamond transactions and to increase the business activity in a way that would increase the profits from which he would ultimately benefit (see paragraph 143 of his affidavit). This argument was raised by him in relation to the period in which they were engaged in the sale of diamonds.  The rupture in their relationship occurred during 2012, after the plaintiff finished supervising the diamond polishing operations in Russia and at the same time selling them in 2010-2012 (see chapter e(3)(b) and (c) of the plaintiff's affidavit in paragraphs 109-110, 118, 126 and 131, and see also the plaintiff's testimony at p.  82, line 38 to p.  83, line 10).  In this state of affairs, the plaintiff has no benefit in arguing that as long as there was an agreement between the parties that the funds would remain in the company, no cause of action arose.
44. The sequence of events can be learned from Tami's answers in her cross-examination as follows:

"Q: So in 2012, when this rift actually begins, according to what you say, Michael owes you a lot of money, right?