As stated, the rule regarding estoppel requires the determination of a positive factual finding (Civil Appeal 126/51 Felman v. Shahab IsrSC 6 313; Civil Appeal 246/66 Klausner v. Shimoni, IsrSC 22(2) 561).
- Unlike the trial court, I do not believe that the decision of the Honorable Justice Baum of January 11,2023 in a civil lawsuit in a quick hearing 30923-10-22 [Nevo] establishes estoppel, because it does not establish a "positive factual finding" in relation to the relevant company. In the same decision, the Honorable Justice Baum ruled as follows: "The fact that defendant 2 provides services to defendant 1's clients does not make it qualified to receive court orders on its behalf."
The decision of the Honorable Justice Baum in the previous proceeding was given on the basis of the arguments of the parties in the pleadings, and in particular on the basis of the argument of respondent No. 2, which the court accepted without preceding it any factual clarification proceeding, on the basis of evidence presented by the parties, as to the nature of the relationship between the companies. Thus, for example, in the Applicant's request to recognize the Respondent as a representative, which was submitted to the Court in a proceeding before the Honorable Justice Baum on January 10,2023, the Applicant claimed, inter alia, that on Respondent No. 2's website, she herself advertises that she "provides her clients with full service in the Hebrew language, including opening an account in the client's name at Interactive Brokers, assistance and accompaniment in transferring funds and securities to the account, comprehensive and professional guidance on the trading system, and of course personal and professional guidance... " and so on. The application included many additional factual claims regarding the service provided by respondent 2 in relation to the trading platform of respondent 1, which were not factually examined by the court.
- As is explicitly evident from the case law on the issue, the question of whether a company is a representative of a foreign company in Israel, within the meaning of the term in Regulation 163(c), is a legal question that also involves factual questions, which the court must decide, on the basis of evidence. When the judgments of the courts on behalf of the parties reveal a factual dispute, the court must examine the evidence brought before it by the parties, as the trial court did, following the judgment in the appeal against its first decision.
- Following the decision of the Honorable Justice Baum, the Applicant, in the framework of that proceeding, sought to delete the claim against Respondent 1, but in my opinion, even this fact does not prevent her from now applying for permission to produce a new statement of claim for Respondent 1 through Respondent 2. The dismissal of the claim against respondent 1 does not constitute "confirmation that it is not possible to carry out sawing by respondent 2", as the trial court held. At that time, since she claimed that she also had a cause of action against respondent No. 2, the Applicant chose to continue to conduct the claim against her only. However, following deception on the part of Respondent 2 (which it claims was done in good faith), a settlement agreement was reached between it and the Applicant, which Respondent 2 later claimed that it was unable to fulfill. This fact is what compelled the Applicant to re-file her claim against Respondent 1, and not against Respondent 2.
- The trial court further ruled that in the framework of the agreements between the Applicant and Respondent 2 in Civil Case 48651-03-21, which received the force of a judgment, "it was determined that the Respondent had no liability in connection with the activities of Respondent 1."
This is not a judicial "determination", based on a positive decision on the parties in the same proceeding, but rather a settlement agreement, which was expressly agreed to do not constitute an admission of the parties' claims. In any event, the explicit language of the settlement agreement does not relate to the dispute that is the subject of our discussion: