The plaintiff's version
- In the statement of claim, the plaintiff claimed that prior to the engagement in the first diamond transaction, a meeting was held with the participation of the defendant plaintiff and the other parties concerned, and there, among other things, it was agreed that the defendant would pay the plaintiff 5% of the scope of the investment (US$2, 500, 000) as initiation and brokerage fees, in exchange for the full return of the financing and payment of the premium to the defendant (paragraph 10 of the statement of claim).
- In his affidavit, the plaintiff testified that in addition to him and the defendant, three people participated in the meeting that took place in Herzliya: Boris, Bezalel and Thomas. At the meeting, the transaction was presented in detail to the defendant, who expressed his desire to participate in it and to its financier, and the terms for its execution were agreed upon (sections 74-75). According to him, at that meeting, it was agreed that Boris and he would each receive 5% of the scope of the investment that was set at about $50, 000, 000, that is, about $2, 500, 000 each. This is for the purpose of brokering the transaction between the defendant and Bezalel and Thomas. According to him, all those present were well acquainted with this summary (paragraph 76). He testified that the transaction was closed orally and no written document was signed (section 77). He claimed that today the defendant denies his entitlement to payment, but in real time all those involved in the transaction knew about the defendant's obligations to him (section 79).
- In his cross-examination as well, the plaintiff reiterated that the defendant undertook to pay him the brokerage fees at the first meeting. Thus he testified that at the first meeting the defendant took responsibility for the payment of the brokerage fees and undertook to pay them (page 54, lines 23-30).
- From all of the above, it appears that the plaintiff's version was that the defendant undertook to pay him the brokerage fees on the date of the first meeting in which the plaintiff, the defendant, Boris, Bezalel and Thomas participated. It should be noted that later on, the plaintiff changed this version both in his cross-examination and in his summaries. This was apparently in light of the other testimonies that were heard.
Bezalel's testimony
- As stated above, the plaintiff submitted an affidavit by Bezalel in order for it to support his version. In his affidavit, Bezalel testified about the engagement in the first deal. According to him, he and Thomas were interested in the deal and therefore looked for a financier with whom they would share the profits. Since the defendant did not meet with anyone, he could have reached him through the plaintiff. He testified that he wanted his brother Boris, who was close to the plaintiff, to be involved in the deal. Therefore, he approached his brother Boris and asked him to present the transaction to the defendant, on the assumption that the application to the defendant would be through the plaintiff. According to him, the plaintiff, who believed that this was a transaction with significant potential, shared it with the defendant and a meeting was scheduled. Bezalel also testified that those present at the meeting were the plaintiff, the defendant, his brother Boris, Thomas and himself. According to his testimony, the defendant agreed to put $49 million in two parts: the first part, a total of $33 million for the purchase of small stones, and the second part, a total of $16 million for the purchase of large stones, with him and Thomas undertaking to repay the loan within 6 months plus a premium. He also testified that during the meeting it was agreed that the plaintiff and Boris would each be entitled to a sum of 5% of the financing amount. He testified that he learned from his brother Boris that he had received a payment of 5% of the total amount of $33 million and not of the total amount of $49 million. He also testified that he knew that the defendant did not transfer any payment to the plaintiff. This is contrary to what was agreed upon at the meeting in which he was present (see paragraphs 7-13).
- Later in his affidavit, he testified that since they had difficulties in selling the diamond stock, they were sold back to the defendant. According to him, as part of the accounting for all expenses, the defendant included the brokerage fees that the plaintiff and Boris received at the rate of 5% of the total amount. This is despite the fact that he is aware that Boris received only a partial payment and that the plaintiff did not receive payment at all (section 20).
- In response to questions in cross-examination, Bezalel presented a different version than the one presented in his affidavit regarding the date on which the payment of the brokerage fees was agreed, the identity of the participants, and the party who undertook to pay them.
- From his answers, it became clear that the issue of the brokerage fees due to the plaintiff from the defendant was not agreed at all at that meeting that took place in Herzliya. According to his answers, this matter was settled in a telephone conversation between Thomas and Boris while they were sitting in a taxi on their way to the airport and between him and the plaintiff. The defendant himself was not a party to the conversation. The following are the following:
"Adv. Weissman: In other words, you were in a meeting with Michael, the meeting was over, you drove to the airport and on the way you agreed on what would happen to Boris.