Civil Case (Center) 11150-09-23 Israel Aerospace Industries Ltd. v. Brook Aviation Ltd. - part 5

Second, for investments made by Brook in the training of IAI technicians, which went down the drain with the failure of the civil appeal to complete the licensing processes for its technicians within the period of the agreement, and in view of the continued use that the civil appeal continued to make of the qualifications and licenses that Brook financed, for the purpose of providing services to an identical third-party helicopter, in violation of the agreement.

Third, for preventing the use of thecivil appeal airstrip at Ben Gurion Airport for the execution of the project, and the failure of the full consideration caused to the defendant as a result.

120. As was proven in the proceeding, Brook's claims in the counterclaim, which currently claims a debt of approximately ILS 4.4 million in a civil appeal against it, were not raised by it in real time, during the period during which the agreement was in force. Even when Brook left the courtsof a civil appeal and sent a notice of termination of the engagement, she chose to address only the issue of the maintenance of the aircraft of a third party (which is not at the heart of the matter), and ignored the main arguments she had now raised in the counterclaim (Appendix 31 to the charitable affidavit).
121. This fact alone casts doubt on Brook's claims. Had the defendant indeed suffered the heavy damages claimed, it would have been expected that her claims would have surfaced and arose during the ongoing work, and not retroactively, after debts had accumulated and a claim was filed against her by IAI.  Since she did not do so, the impression that emerged was that the counterclaim was filed as a "counterweight" to the main claim.
122. In any event, as will be detailed below, Brooke did not meet the burden of proof imposed on her to prove her alleged damages.

The first head of damage - damages caused due to failures in the certification process

123. According to Brook, she was forced to pay overpayments after the period of accumulating practical experience of 6 months of work on Brook helicopters for the financing of foreign mechanics, including salary costs, airline tickets, economy and overheads, which she would not have been forced to pay if she had faced a civil appeal in her undertaking in the agreement to obtain the fence in her mechanic's license to handle Brook's helicopters. The expert estimated the first head of damage at ILS 1,408,651 (including VAT).
124. There is no dispute that the agreement entered into between the parties is a "best efforts" agreement, according to which a civil appeal stated that: "IAI shall use it's best efforts to complete its undertakings under this Agreement within the periods specified in the SLA." (Section 1.3 of the Agreement).
125. The case law held that the duty of diligence imposes on the person who bears the requirement not to be negligent, which includes a duty to act skillfully and to take all reasonable measures to achieve the agreed contractual goal. The burden of proving the breach of the duty of diligence rests on the shoulders of the victim of the alleged breach (see: Civil Appeal 2887/91 Ben Zion Gol v. Elitzur Uriel (Nevo, September 28,1995); Civil Appeal 1546/16 Afou Sa'id Bisan v. State of Israel Development Authority and the JNF (Nevo, September 16,2020)).
126. Where the achievement of the result depends, inter alia, on the approval, consent or action of a third party, the tendency in case law is to classify the obligation as an obligation to make an effort and not as an obligation to consequence. However, the undertaking party must take all reasonable and appropriate measures, and not delay or thwart the approval process (see: Civil Appeal 8389/17 Daniel Alex A.S. Holdings Ltd.   Lexal Establishment (Nevo, May 6,2019)).
127. In our case, a review of the agreement shows that the civil appeal did not commit to a defined time frame for the completion of the training process. Gil even admitted this in his interrogation (p.  263, questions 27-29 and 264, question 1).
128. In addition, the Aviation Regulations, to which Brook referres, stipulate in section 235(a)(2) that "the applicant has added a professional specialization of the fence in the same area whose license shall prove... (2) Professional experience applicable to the requested definition of at least 6 months within the two years preceding the submission of the application" (emphasis added - Y.S.).  In other words, it is not necessary that the certification period will last only 6 months, and it may be longer.
129. The agreement also does not stipulate that acivil appeal will be required to compensate Brook due to delays in the certification process.
130. Brook was aware from the outset that the certification process was subject to the requirements and instructions of the IATA, and already on July 9,2020, Gil wrote: "We are approaching critical stages in entering the market, and the issue that bothers me most today is the holding component of the licensing with the IATA... (Appendix 39 to Amrani's affidavit at p. 559).
131. The training procedure chosen in this case is an American training procedure known as the FAA. As can be seen from the affidavit and testimony of Alkalai, the Quality Assurance Officer at IAI's Lahav Inspection Institute, this certification process involves the performance of a theoretical course, a practical trial period and a performance ability test with the IAI, as opposed to another European training procedure, known as the EASA, which also includes a theoretical course, but also involves a practical course performed abroad (see also Age Testimony at p. 362, paras.  13-11), at the end of which and after a probationary period of 6 months, the license is obtained, without the need to pass a performance ability test with a civil case examiner (paragraph 19 of Alkalai's affidavit and pp.  226-227 of the transcript).
132. According to Brook, the Civil Appeal was negligent in choosing the FAA track and not the EASA track, since this track would have made it redundant of dependence on the IAA, which caused delays in obtaining the licenses. However, as the evidence shows, the decision to choose the FAA track was with Brock's knowledge and consent.  Gil confirmed that Brook was a partner in the decision regarding the selection of the training track (p.  360 of the transcript of Q. 18).  Amrani testified that the reason why the FAA track was chosen lies in the fact that it is cheaper, compared to the EASA process (p.  150 of the transcript of Q. 28).  This argument is not contradicted and is consistent with the fact that the EASA process involves conducting a practical course abroad, which naturally entails higher costs.
133. Moreover, Brook did not prove that when she chose the FAA track, she was aware of the expected delay in the performance of the fitness tests due to the shortage of examiners at the IAA. Alkalay testified that when the FAA track was chosen , there was nocivil appeal aware of the difficulty in dealing with acivil case (p.  228 of the transcript, paras.  5-10).  Brook, who has the burden of proof, chose not to summon the witnesses ina civil case to testify in this matter, even though there was no impediment to summoning them.  As is well known, refraining from summoning a witness establishes a presumption that if he had been brought to testify, it would have worked against him (see, for example: Civil Appeal 55/89 Koppel (Self-Driving) Ltd.   Telcar Company Ltd., IsrSC 44(4) 595 (1990)).
134. Therefore, the choice of the FAA track does not prove that the civil appeal was negligent, or that it bears responsibility for the delay in the licensing process.
135. In addition, Brook was unable to prove that the civil appeal did not make the best efforts to complete the training process as quickly as possible.
136. There is no dispute that a suitable fence was received for the CivilAppeals Examination Institute on May 10,2022, about 4 months after Brooke won the Ministry of Defense tender and within the NRE period (see Amrani's testimony at p. 112, paras. 16-18).
137. In addition, it was proven that the Civil Appeal technicians completed the theoretical course on March 8,2022 (Appendix 2 to Alkalai's affidavit) and the engine body technician course on September 8,2022 (Appendix 7 to Alkalai's affidavit; Gil's testimony at p. 352 of the transcript of Q. 27-29 and p. 353 of Q. 6-8, where he confirms that the Civil Appeal technicians completed the theoretical course and the engine course on time), with Brook's first helicopter arriving in April 2022 and the second plane arriving in July 2022. Subsequently, on November 14,2022, the Civil Appeal Court paid the fees for the exams.
138. As appears from the correspondence presented, Brook herself claimed that the reason for the delay stemmed from an extreme overload at the IAA, which relied on one examiner at the time. Thus, in June 2022, following the announcement by acivil case leader that due to the large workload and the unavailability of the examiner, there would be no performance test that month, Eyal replied that: "I understand that a significant part of the burden on Dror is due to us (demonstration and test flight days)...  (Appendix 4 to Alkalai's affidavit).  On November 22,2022, Gil sent an email to the representatives of the Civil Appeals Tribunal and wrote: "Where do we stand with the MARA's performance tests?...  If I understand correctly that we finished all our debts to a civil case two weeks ago, what stops us?" (Appendix 35 to Amrani's affidavit).  On February 15,2023, Eyal Ler sent a civil file email in which he states: "...  We understand that there is an extreme burden on a civil file that does not allow us to set the dates for the performance tests that we need in order to support the activity..." (Appendix 36 to Amrani's affidavit at p. 538).  On February 27,2023, Eyal again contacted the CivilAppeals Officer and noted: "We have two civil appeals officers who have been waiting for a performance test since November..." And later, with another statement: "We have been waiting for more than 4 months for a test for technicians who have completed all their obligations to receive the license, and there is no solution to the situation in a civil case, except for a general statement that perhaps in April we will be able to coordinate a date" (Appendix 36 to Amrani's affidavit at pp.  536,534).
139. Gil and Eyal confronted these correspondences in their interrogations and claimed that their appeals to a civil case were made on the basis of representations made to them by IAI, which in retrospect turned out to not reflect reality. However, their claim that the civil appeal did not document the actions of the technicians during the required months of certification is inconsistent with the evidence presented to me.  According to copies of IAI technicians' logbooks, which were attached as part of Appendix 8 to Alkalai's affidavit, it appears that each of the technicians performed dozens of operations over a period of at least 5 months, from May-June 2022 to November 2022, and the evidence is that the technician Maxim Kirylyuk passed the performance ability test (after the end of the required probationary period) on December 11,2022, and another technician named Eran Bohadana passed the test on January 30,2023.  Although Mr. Sagi David, on behalf of theCivil File, noted in an email message dated November 29,2022 that one month of experience had been documented for the avionics technician (one of whom is Eran Bohadana) (Appendix 11 to Alkalai's affidavit at p. 187), but the registration logs indicate that operations were carried out for at least 5 months, a fact that is consistent with the fact that Eran Bohadana received a license as early as January 2023.
140. In addition, it was proven that a request for an exemption from Regulation 235 of the Aviation Regulations was filed on July 11,2022, to shorten the required practical probationary period, after another request filed by Brook on February 26,2022, was rejected. This request was also rejected, but the very fact that the application was filed, even if it was made in cooperation with Brook's representatives, testifies to the fact that a civil appeal tried to advance the issue of licenses.
141. It was also proven that requests were made by the Civil Appeals Tribunal for a civil case to expedite the setting of the dates for the performance fitness tests. Thus, on January 2,2023, Amrani contacted Mr. David Sagi, the civil case manager, and asked to expedite the processing of the applications.  On the same day, a performance test was set for Eran Bohadana for January 2023.  In addition, on January 8,2023, Amrani contacted Mr. David once again, and asked to urgently coordinate a date for the performance of tests for two engine body technicians (Appendix 12 to Alkalai's affidavit at pp.  191-192).  Amrani also testified that Bar visited a civil file in order to expedite the process (without presenting documentation of this) (p.  171 of the transcript of Q. 25-28 and p. 172 of Q. 1-2)
142. In February and March 2023, additional requests were made to acivil case to determine performance fitness tests, both by Brook and by a civil appeal (through Mr. Amrani), as well as in April-May 2023 (Appendix 15 to Alkalai's affidavit), however, these requests were not answered due to the overload at the IAA.
143. In these circumstances, Brook was unable to prove that the Civil Appeal did not make efforts, as required of it in the agreement, to complete the qualification process during the period of the agreement. The totality of the evidence proves that the Civil Appeal did not "sit on the fence" and waited for the Ministerof Civil Appeals to advance the proceeding, but rather took active actions in order to advance the matter, but encountered difficulties that were not dependent on it and stemmed from the burden that was placed on the civil case at that time.
144. In light of the above, once it has been proven that the civil appeal did not commit to a certain period of time for the end of the training period, and once it has been proven that the civil appeal made efforts to advance the proceeding, the head of the first damage claimed in the counterclaim should be dismissed.

The Second Head of Damage

145. The head of this damage concerned alleged investments made by Brook in the training of civil appeal technicians that went down the drain, according to Brook, with the failure of thecivil appeal to complete the licensing processes for its technicians within the period of the agreement, and in view of the use that the civil appeal continued to make of the qualifications and licenses that Brook financed, for the purpose of providing services to an identical helicopter of a third party, in violation of the agreement. The expert estimated the head of the damage in the sum of ILS 2,205,660 (including VAT).
146. As will be detailed below, this head of damage has not been proven by Brooke.
147. Brook undertook to bear the expenses of the training period, without defining a predetermined period. In doing so, Brook took the risk that the period would be extended beyond the 6-month period prescribed in the Aviation Regulations.
148. In addition, as I stated above, the reason why the training process was not completed during the period of the agreement is due to delays on the part of a civil case and not due to negligence on the part of IAI.
149. In these circumstances, there is no reason to impose liability on a civil appeal and oblige it to return its investments in IAI technician training.
150. Moreover, the agreement was set in advance for a period of three years (until June 14,2023) with an option for Brook to extend the period of the agreement by an additional three years. It was Brook that chose to terminate the engagement with T. Civil Appeal at the end of the first three years.  The agreement does not include a provision whereby at the end of the period of the agreement, T. Civil Appeal must refund Brock in full or in part the cost of training the technicians.  In addition, the case law determined that the knowledge and experience that the employee acquires during his work become part of his professional skills, and he is entitled to use them in another place of work (Labor Appeal (National Labor) - 164/99 Dan Fromer - Redguard Ltd.  (Nevo) (2.1999).  This rule can also be applied to our case.  Admittedly, in this case we are not dealing with an employee-employer relationship, but rather with a supplier-customer relationship, but the license and knowledge acquired by IAI employees, even if they were acquired with Brock's funding, have become part of their professional skills and cannot be "erased" upon the termination of the agreement.  In these circumstances, and certainly when Brook was the one who chose to bring the agreement to an end, there is no reason to obligate thecivil appeal to return the costs invested in Brooke, which, according to Brook, were wasted when she chose to terminate the engagement at the end of 3 years.
151. As for the handling of a third-party helicopter, Brooke based her claim on Appendix B to the agreement, which states that:

"IAI shall not use any intellectual property, training, know-how paid for by Brook under 1-3 above for the provision of services to any third party without Brook's approval, not to be unreasonably withheld or delayed."

152. The civil appeal argued that Brook had approved (through Eyal, in a meeting on April 24,2023) the handling of the helicopter of a third party (see Amrani's testimony at p. 118, paras. 2-8), and therefore, according to her, she acted in accordance with the agreement.  Eyal does admit that the meeting discussed the handling of the helicopter of a third party (p.  403 of the transcript of question 22), but according to him, there was also talk that Brook would receive compensation for this.
153. The agreement does not include a provision according to which Brock is entitled to compensation in such a case. The issue came up at the meeting, and it can be assumed that Brock's representatives even knew about the existence of the helicopter, since, naturally, it cannot be hidden.
154. In any event, as appears from Amrani's affidavit in section 169, the agreement with that third party was entered into on May 22,2023, about three weeks before the termination of the engagement with Brook, and continued until March 2024, when the income from this client amounted to only approximately $60,000, an amount that is negligible compared to the amount of Brook's debts to IAI, and does not attest to the unlawful enrichment of acivil appeal at Brook's expense.

The Third Head of Damage - Using the Lander

155. Brook is suing for compensation for preventing the use of the civil appeal airstrip at Ben Gurion Airport for the execution of the project.
156. According to IAI, no commitment was given to Brook to allow the use of the airstrip for commercial purposes, but only for the purpose of landing and taking off helicopters for maintenance.
157. A perusal of Appendix B to the agreement shows that among the services that a civil appeal undertook to provide to Brock was also "helipad use", i.e., the use of an airstrip.
158. In a letter sent on June 13,2021 by a civil appeal court to the Ministry of Defense, IAI wrote: "Brook and IAI have signed an agreement for the provision of helicopter flight services, according to which IAI will provide maintenance services for helicopters and allow Brook to use the Bedek airstrip in the center of the country for the purpose of flying IDF personnel and the Ministry of Defense... ".  (Appendix 5 to the Affidavit of Age).
159. This letter apparently indicates that the intention of the parties was that Brook would be able to use the airstrip for the purpose of flying IDF personnel and the Ministry of Defense, and not only for the purpose of maintaining the helicopters. There is even logic in the fact that it is possible to allow the landing and takeoff of IDF and Ministry of Defense personnel, and even MDA personnel, subject to the receipt of appropriate entry permits, as they are part of the security forces.  The take-off and landing of these parties does not turn the civil appeal enterprise into "Terminal 3, " as IAI says.
160. At the end of the day, the take-off and landing of passengers of any kind was not approved, due to the refusal of the Department of Security of the Civil Appeal to approve it.
161. Although Brook signed letters dated June 6,2022 and July 6,2022 (Appendices 43 and 44 to Amrani's affidavit) in which she undertook not to take off or land with passengers from IAI territory, she claimed that she signed the same letters, at the request of IAI, which threatened to terminate the engagement if the letters were not signed (paragraphs 101-105 of the Gil affidavit). This version is consistent with what was stated in an email message dated July 6,2022, which he sent to the defendant in which he conditioned the issuance of entry permits on signing the document: "Please sign Gil on the attached paper (the letter dated July 6,2022 - H.S. Y.S.) as a condition for the issuance of future entry permits" (Appendix 19 to Gil's affidavit).  Therefore, contrary to IAI's claim, these letters do not attest to the lack of commitment on its part to allow the use of the airstrip for the purpose of take-off and landing of passengers.
162. In these circumstances, the prevention of the use of the lander is ostensibly contrary to the obligations of acivil appeal to Brook, but, as will be detailed below, Brook has not been able to prove the alleged damage.
163. The expert on behalf of Brooke estimated this head of damage at ILS 784,932 (including VAT). The calculation was made by him as a derivative of the fixed charge that Rock was charged by a civil appeal every month (in respect of an office in the amount of ₪2,500 and basic services in the amount of ₪7,500-15,000), with his argument that the compensation should be calculated in this way since most of the fixed payments are for the ability to use the airstrip commercially.
164. The manner in which the matter was presented by the expert and the calculation he made is not consistent with the agreement. In accordance with clause 2 of Appendix D to the agreement, the fixed payment is in the sum of $8,500 per month (which was reduced by agreement to a sum of $7,500 per month) in Stage 1 of the project.  In accordance with clause A of Appendix B to the agreement, stage 1 of the project is defined as parking and storage for one helicopter only.  Therefore, the main part of this payment (if not the entirety) is for parking (which is not in dispute between the parties) and not for the use of the airstrip.  It is certainly not possible, as the expert claims, that most of the fixed payments are for the ability to use the airstrip commercially.
165. Therefore, the calculation made by the expert does not prove the alleged damage.
166. On the other hand, Brooke did not produce any other evidence that could prove the damage.
167. According to Brook, in light of the prohibition on the use of the airstrip, she was forced to use the airstrip of Assaf Harofeh Hospital. Brook did not present an agreement or references (invoices, receipts, etc.) for payment to Assaf Harofeh.  When Gil was asked about this in his interrogation, he replied: "Why is it relevant? " (p.  363 of the transcript, line 13).  The expert confirmed in his interrogation that he did not have the agreement with Assaf Harofeh Hospital (p.  459 of the transcript, paras.  13-14).
168. Since Brook refrained from presenting this indisputable evidence in her possession, it is presumed that its presentation would have acted against her, and indeed a perusal of Appendix 88 at p. 416 to the exhibits file on behalf of IAI shows that the direct costs of operating the Assaf Harofeh airstrip amounted to only ₪39,780 (without attracting documents proving this) and not in the sum of ILS 784,932, which was claimed.
169. Under these circumstances, Brook was unable to prove the head of this damage, and her arguments in this regard are rejected.
170. In the margins, I will note that I have not lost sight of the argument of thecivil appeal that the agreement included a limitation of liability clause, and the interpretive dispute of the parties with respect to this stipulation, but since Brook's arguments in the counterclaim were rejected, the need to address this issue became obsolete.

The Result

171. In light of all of the above, the main claim is accepted in full.
172. Brook will pay a civil appeal in the sum of ILS 2,897,365 plus linkage and interest differences, starting from the date of debt consolidation (according to the dates specified in the table in section 73 of the charitable affidavit in the "Last Payment Date" column) until the actual payment, within 30 days from today.
173. The counterclaim is dismissed in its entirety.
174. Brook will bear the expenses of Brook and attorney's fees in the sum of ILS 200,000. The guarantee that Brook deposited in the case in the sum of ILS 125,000 will be transferred at the expense of the aforesaid to IAI, through its attorneys.
175. The right to appeal to the Supreme Court as a matter of law.

Granted today, October 20,2026, in the absence of the parties.