Civil Case (Center) 11150-09-23 Israel Aerospace Industries Ltd. v. Brook Aviation Ltd. - part 4

"Q.  Nice.  And please confirm to me that at the end of this argument, an agreement was reached between you.  The agreement that stipulated that you commit to pay IAI $189,000 in six installments. 

A:  This is part of the agreements that were reached.  In terms of the payment to IAI, this is the amount that we agreed on".

And later on, at p. 275, paras.  12-15:

"I'm saying that the company doesn't deny the confirmation of a payment that Eyal approved.  If Eyal said - Brooke approves the payment, he approves the payment.  That's where it begins, that's where it ends..."

Eyal also confirmed that the sum was approved by him:

1. Q. You approve the NRE account of $189,000, right?

 A:     That's right." (p.  376 of the transcript of Q. 5-16).

80. Eyal even confirmed that this sum was approved without any condition. Thus on page 377 of the transcript of Q. 17-18:
81. It's not because your agreement on NRE was contingent on anything.

A: No. The amount of the NRE was agreed upon between us, there was a real intention to pay it in full."

81. Brook did not attach any evidence, in real time, that the payment of the sum that was agreed upon was contingent on the receipt of products, or that she had objections about it. Gil confirmed in his testimony that he did not object to the amount of the settlement after it was approved (see p. 277 of the transcript of question 21), and as evidence, this sum was partially paid by Brook (the sum of ILS 220,000 out of ILS 747,420), and she even reiterated it in her summaries in paragraph 23.
82. In addition to this amount, on November 29,2022, a civil appeal sent Brook an invoice in the sum of ₪82,637 (not including VAT) for parking, the cost of renting an office and fuel costs. Both Gil and Eyal confirmed in their testimony that there was no dispute regarding these components (see Gil's testimony at p. 292, question 4 and question 17, and Eyal's testimony at p. 378, question 4). This invoice was paid almost in full and a debt of ILS 27,248 remained.  When Eyal was asked why this sum was not paid, he replied: "I don't remember if there is a good reason...  " (p.  378 of the transcript of question 26).
83. From the aforesaid it appears that Brock clearly and explicitly approved the sums demanded for the NRE period. I accept the claim of acivil appeal that it was not possible to obtain prior approval for every hearing, email, telephone call, etc. In practice, the charges were formulated through an orderly process of raising objections on the part of Brock and making adjustments by IAI, until a final invoice was produced that was approved by Brock.  Therefore, the arguments raised by Brock that prior approval of expenses was required, regarding the lack of documentation of expenses or that the payment was contingent on the outcome, are baseless and irrelevant.
84. Thus, the expert's opinion is also irrelevant in this matter, since the expert testified that he calculated the amounts included in his opinion, according to the terms of the agreement (according to him), and did not refer to the agreement of the parties (p. 435 of the transcript of Q. 6-10), which prevails over any calculation made by the expert, in retrospect.
85. Therefore, Brook must pay the civil appeal the balance of the unpaid amounts for the NRE period, which amount to ILS 527,419 (including VAT) and ILS 27,248 (including VAT) for parking, materials and an office, plus linkage and interest differentials.

00Second Period - the period from October 2023 to June 2023

86. 0October-November 2022 invoices confirmed and paid by Brooke.
87. The January 2023 invoice in the amount of ILS 223,098.64 was approved by Brook, but was not paid by Brook (see Appendix 12 to the charitable affidavit at p. 139, paragraph 23 of Brook's summaries; Eyal's testimony at p. 383, questions 16-17 and questions 23-24, where he confirmed that he had no good reason why this invoice was not paid and Age Testimonies at p. 304, questions 1-3).
88. The April 2023 invoice in the amount of ILS 392,895.82 was also approved by Brook and was not paid (see Appendix 25 to the charity affidavit at p. 256, paragraph 23 of the plaintiff's summaries; testimony of Peleg at p. 335, questions 22-23; testimony of Eyal at p. 397, questions 11-12).
89. Therefore, the dispute between the parties focuses on the December 2022 invoices and the invoices for the months of February 2023 to June 2023.

December 2022 invoice

90. On January 8,2023, the Civil Appeal Tribunal sent Brock a table containing details of the charges for the month of December 2022, which included a credit of 52 hours for the months of October-November 2022 (Appendix 11 to the charitable affidavit at p. 131).
91. In an email admission dated January 18,2023, Eyal submitted a number of objections to the account and received a detailed response from Charity on the same day (Appendix 11 to the charity affidavit at pp. 130-131). Charity stated in paragraph 49 of his affidavit that on January 24,2023, after deliberations, Eyal approved the account by telephone, and accordingly an invoice was sent to Brooke in the amount of approximately ILS 234,847 (see also charitable testimony at p. 73, paras.  4-16 and 19).
92. Brook denied that this invoice was approved by her, but as will be detailed below, the totality of the evidence shows that in real time, Brook did not object to the payment of this invoice, and she even reiterated that the payment would be made.
93. Thus, on January 24,2023, after the invoice was sent, Tzedka wrote to Eyal: "You have not yet approved the issuance of the invoice for the month of December 2022. We await your prompt approval" (Appendix 11 to the charity affidavit at p. 130). After this notice was sent, no objection was raised by Brook to the production of the invoice, and it was indeed produced shortly afterwards.
94. Subsequently, on March 2,2023 and March 21,2023, the Civil Appeals Office sent additional reminders for the payment of the invoice (Appendices 18-19 to the charity affidavit). Brook did not respond to these requests, and in any event did not express any written objection to the payment of the invoice.
95. In an email sent to Eyal on April 3,2023, Tzedaka detailed the status of the debts for that day, which amounted to ILS 873,427, including the debt for the December 2022 invoice in the amount of ILS 234,848 including VAT (Appendix 20 to the charity affidavit). In a WhatsApp correspondence between Amrani and Eyal from that day (Appendix 21 to the charity affidavit), Amrani wrote to Eyal: "Eyal, I understand from the funds that no invoice was paid." In response, Eyal responds: "I asked Moneyem to transfer a payment on Thursday and from what I understand it was done. I asked for confirmation of the payment, I will already forward it to you." Although the December 2022 invoice was included in the status of the debts sent on the same day, Eyal did not express any objection to its payment, but if the opposite is true, he confirmed that he had asked Brooke's finance department to transfer the payment, which includes, as mentioned, the December 2022 invoice.
96. On April 18,2023, about two weeks after Eyal promised that Brook would settle her debts, Amrani contacted him again: "I am waiting for an update on the debt. I ask that agreements between us be honored, " and in response, Eyal responded: "Hi Amrani, any agreement between us will be honored. It is not clear to me why the payment has not yet been made.  I am immediately checking and will update." Again, Eyal did not express any objection to the payment of the December 2022 invoice.
97. On April 19,2023, after the payment was not received, Amrani asked Eyal to make sure that Brook would settle her debts on the same day, and that the parties would hold a meeting the next day on the subject of the new outline. On April 20,2023, Eyal informed Amrani: "Regarding the transfer of the payment, there is no need to stop the work. I promised and I intend to keep the promise."
98. On April 24,2023, a meeting was held between representatives of the Civil Appeal and Eyal, in which Eyal undertook that Brook would pay the Civil Appeal ILS 1 million for the past debt (see Eyal's email from that day - Appendix 22 to the charitable affidavit at p. 216). In the aforementioned email message, Eyal did not refer to the invoice for the month of December 2022, and in any case no objection was expressed to its payment. In his cross-examination, Eyal tried to present the sum of ILS 1 million as a kind of total payment covering the invoices for February and March 2023 (without the invoice for December 2023) (p.  392, paras.  10-15), but these invoices were issued only on April 30,2023 (Appendix 24 to the charity affidavit at p. 247), while the commitment to pay ILS 1 million was given as early as April 24,2023.  In addition, as appears from section 71 of the charity affidavit, the result of combining the amount of the debt for the NRE period as of that date, with the amount of the debt for parking, materials and office for that date, together with the amounts of the invoices for December 2022 and January 2023, is ILS 998,004, i.e., approximately ILS 1 million, which is the past debt as of April 24,2023.
99. Added to this is the fact that the October-November 2022 invoices and the January 2023 invoice were approved by Brook. Therefore, it is puzzling that the December 2022 invoice was not approved, and indeed, when Eyal was asked in his interrogation whether he approved the invoice, he gave a hesitant answer and reservations that he was: "It is quite certain that we said that it was not approved later on" (p. 382 of the transcript of question 20).
100. In any event, there is no dispute between the parties that work was performed by acivil appeal in December 2022, and that she is entitled to compensation for her work. The dispute is about the scope of the work that was performed.  However, since Brooke did not present any evidence that she objected to this invoice in real time, coupled with the fact that she did not specify the amount that she believes is entitled to a civil appeal for her work, the probable result is that this invoice was approved.

February 2023 - June 2023 Invoices

101. From February 2023 until Brook left the IAI premises on June 11,2023, a civil appeal ordered Brook according to a new payment plan, according to which he was charged a monthly sum of $74,855 for the ongoing maintenance work, and in addition, Brook was required to pay for parking, materials, and an office.
102. According to IAI, this new outline was agreed upon orally in a meeting held on April 24,2023 between its representatives (Amrani and Tzedaka) and Eyal, while it was agreed that it would also apply retroactively with respect to invoices for the months of February and March 2023.
103. Regarding the new outline, Brook raised both a procedural argument regarding the expansion and change of a prohibited front and arguments on the substantive level.
104. According to Brook, the claim regarding the approval of the new outline constitutes an expansion of a prohibited front since it does not appear in the pleadings. A review of the statement of claim and the statement of defense shows that invoices for the months of February-June 2023 that were prepared according to the new outline were attached to them (Appendix 9 to the statement of claim, Appendix 12 to the statement of defense).  In Appendix 10 (p.  89) to the statement of defense, an email message dated May 3,2023, in which the new outline is mentioned.  The same is true in Appendix 7 to the statement of defense on p. 78.  Moreover, the subject of the new outline was elaborated on in the affidavits of the civil appeal, and Brook was given an opportunity to address this matter in her affidavits, and indeed both Gil and Eyal referred to the new outline at length in their affidavits (paragraphs 208,214-216 of the affidavit of Gil and paragraphs 109-114 of Eyal's affidavit).  Brook was also given an opportunity to cross-examine the witnesses on this issue, and she did take advantage of this opportunity.  Counsel Brook himself defined the subject of the new outline as "the heart of the case" (p.  36 of the transcript of Q. 19-20).
105. In these circumstances, when the dispute became clear on the merits of the matter, after examining the arguments of the parties, hearing testimonies and after presenting relevant evidence on behalf of Brock as well, Brock's procedural rights were not deprived, and there is no impediment to discussing this claim. In this regard, the words of the Honorable President M. Shamgar in Other Municipality Applications 311/83 Finkelstein v. PlavskJ, IsrSC 39(1) 496,503 (para.  7) (1985):

"The court must decide a question that is really in dispute between the parties, but sometimes it is prevented from doing so, since the said issue is not presented to it in the pleadings and is not raised even during the hearing, but if the parties present before the court, in fact, the real dispute that arose before them, as indeed happened here, the original pleadings should not be seen as a kind of brace, which binds the court and prevents the court from approaching the material and arguments that were brought before it in the course of the proceedings."

106. On the merits, Brook does not deny the existence of the meeting of April 24,2023, and that a new outline was discussed, but she claims that it presented only principles for a new outline, which are subject to the drafting of a new appendix, after it has been approved by all the competent authorities on behalf of both parties.
107. Admittedly, in accordance with the provisions of the agreement, any change in the agreement can only be made in writing, whereas in this case it was argued that the change, which is indisputably on a substantive issue, was made orally, however, the picture obtained from the evidence presented before me is that, contrary to what was claimed by Brock, the outline was approved by her, at least, in conduct.
108. On April 30,2023, following the meeting held on April 24,2024, Tzedaka sent Eyal two invoices for the months of February and March 2023, which included a component of a "basic monthly cost" in the amount of $74,855. In this email, Tzedaka wrote: "Hi Eyal, following our meeting, attached are the invoices for the months of February, March 2023 paid immediately after a criminal appeal, the following details...  Basic monthly cost of 74,855" (Appendix 24 to the charity affidavit).  Brook, who claims, as noted, that the new outline was not approved by her, did not present, puzzlingly, any evidence that she objected, in real time, to these invoices, which were issued in accordance with the new outline.  When Yogev was asked about this in his interrogation, he raised a claim that did not appear in his affidavit, that Brook did not respond to the aforementioned email message because it was sent to an email box that does not normally monitor it (p.  394, paras.  12-13) and therefore did not see it.  However, Eyal later contradicted his version and noted: "This is an email that was sent to a user that I monitored and saw this email only a few weeks later" (p.  394 of the transcript of Q. 19-20).  Needless to say, even after a few weeks, no evidence was presented that Brock objected to these invoices.
109. Later in his testimony, when Eyal was asked why he wrote charity that the invoices were sent later in the meeting, he replied, "I assume that it was agreed upon at the meeting" (p. 394 of the transcript of Q. 25-26).  Eyal even admitted that the sum discussed at the meeting was indeed $75,000: "For the sake of the matter, yes, this is the number we were talking about" (p.  392 of the transcript of Q. 19).
110. In a correspondence dated May 3,2023 (Appendix 25 to the charity affidavit at p. 257) between Tzedaka and Eyal, Tzedaka attached the April 2023 invoice, stating: "Attached is the calculation for the month of April 2023 according to the new outline." Later, on May 8,2023, Tzedaka informed Eyal, among other things, that he was interested in issuing the April 2023 invoice. Eyal not only did not claim that the new outline had not yet been approved, but he explicitly approved the invoice, when he replied the same day: "No problem." In his affidavit, Eyal also confirmed that he had decided to approve the amount in the April invoice (section 120), and this confirmation was also reiterated in his interrogation on page 397 of the transcript of Q. 12.  Gil also confirmed in his interrogation that the April 2023 invoice was approved, when he noted that Eyal "approved $92,000, I accept this confirmation" (p.  335 of the transcript of Q. 22-23).
111. If, as Brook claims, the new outline was not approved and is not binding, Eyal would have been expected to immediately cry out and claim that he did not approve the invoice since it was drawn up according to the new outline. However, not only did he not do so, but he explicitly approved the April 2023 invoice.  This fact, together with the fact that Brook did not compensate, in real time, in the invoices for February and March 2023, strengthens the conclusion that the parties reached an agreement to change the contract method, from actual working hours to a fixed amount.
112. In his interrogation, Eyal tried to justify his approval of the April 2023 invoice, claiming that he approved the invoice as compensation also for the fact that the February-March 2023 invoices were not paid since he claimed that a civil appeal worked, according to him, during those months (p. 397 of the transcript of Q. 8-14), but his version is inconsistent with the facts.  The February-March invoices alone amount to ILS 813,952, while the April invoice stands at ILS 392,895, so it is not possible that it includes accounts of 3 months, even if we subtract the February-March invoices by 50% of their amount.  Moreover, Eyal's claim contradicts his earlier claim in his testimony, according to which the sum of ILS 1 million approved by him at the meeting on April 24,2023 includes the invoices for February-March 2023 (which, as stated above, is also incorrect).  These contradictions indicate that Eyal's versions are nothing more than excuses, and that the reality was as presented by IAI, both in relation to the attribution of the sums within the framework of the sum of ILS 1 million and in relation to the new outline.
113. It should also be noted in this context that Brook's claims about the lack of documentation of working hours or the lack of prior approval by Brook for the expenses are irrelevant, since in these invoices Brook was charged a fixed payment plus expenses for parking, office and services, which, as stated, Brook does not dispute that she must pay.
114. In addition, Brook's claim that the fixed amount was contingent on the work of 4.5 technicians with the appropriate license was not proven. Amrani testified that the fixed amount was determined as an average in accordance with the scope of work required, and that the number of technicians who worked sometimes exceeded 4.5 technicians and sometimes fell below this number, and there was also no obligation that all technicians would be licensed (p.  183 of the transcript, paras.  11-12, p. 185, paras.  9-10,16-17), and his claim was not contradicted.
115. From the above, it appears that the new outline was acceptable to Brock, and accordingly it must pay the invoices for February 2023 by June 2023.

Interim Summary

116. In light of the above, a civil appeal was able to prove the main claim, both in relation to the NRE period and in relation to the period thereafter, until the termination of the agreement.
117. Therefore, Brook must pay a civil appeal in the sum of ILS 2,897,365 (plus linkage and interest differences).
118. It is now necessary to examine whether Brook was able to prove her counterclaim.

The Counterclaim

119. The counterclaim lists three heads of damages:

The first, for overpayments that Brock had to pay after the period of accumulating 6 months of practical experience working on Brock helicopters, known as the OJT period.