All of this is consistent with the testimony of Mr. Shimshon in his affidavit in the franchise suit (at paragraphs 45-47), according to which he suggested that his brother contact the professionals with whom he works ( BDO CPA firm and Adv. Doron Ariel), and his testimony was not contradicted because his brother decided not to carry out such an examination.
- Additional support for Mr. Shimshon's position can be found in light of a development that occurred during his cross-examination. During the evidentiary hearing, counsel for the plaintiff tried to surprise him, and when he testified, he asked to look at his correspondence with his brother years back on the mobile phone that he had with him (p. 198, s. 13). Shimshon agreed to allow him to be examined on the spot, and during the search that was conducted in the courtroom, nothing was found. At the same time, the weight of this corroboration is very low, since Mr. Shimshon admitted, in fairness, that, as a general pattern, he and his brother rarely correspond by telephone (ibid., para. 31).
- More than necessary, I will add that even if it were proven that Mr. Shimshon conducted due diligence for Superstock for Michael, free or paid, this does not prove that Mr. Shimshon is an owner or manager ofthis company.
Refraining from bringing additional witnesses
- The burden of establishing the justification of the cause of cancellation rests with Max and on Mr. Max. The tape at issue and the testimony of Investigator Aviani are insufficient. Against this background, the plaintiff should have brought additional witnesses to substantiate her claims.
And here, Max refrained from bringing Michael, the brother of Mr. Shimshon, who is registered as a shareholder in Super Stock, to testify, in order to prove that he is in fact a straw man and is not the real owner of these shares. Max also refrained from bringing the other shareholders of Super Stock to testify: H.H. Rafi Ben-Ami, Ofer Ben Shushan and Haim Abutbul (paragraph 5 of Mr. Sheetrit's affidavit). This avoidance also works to its detriment. In this regard, Mr. Max stated, at the outset, that he did not remember and did not think that he had spoken about Mr. Abutbul in the matter of the trial (p. 101, Q. 10-14), but later admitted that he had asked him to testify, but he refused, since he was afraid of Mr. Shimshon (see: 101, Q. 23-20). Either way, he was not summoned to testify, nor were the other shareholders.