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Filing # 109091550 E-Filed 06/18/2020 06:29:55 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. CASE NO. 17-CA-917
GABRIEL KIRCHBERGER, et al.,
Defendants.
/
NOTICE OF FILING HEARING EXHIBITS
Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and pursuant
to the applicable Florida Rules of Civil Procedure hereby gives notice of filing the attached
Exhibits 16 through 25 introduced into evidence at the June 17, 2020 hearing in this cause.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on June 18, 2020
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle,
Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel
Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101,
Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern
Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road
PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings,
LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein,
P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at
Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants
Andreas Kirchberger and Golden Key Properties, LLC; and Kristina Hager Snyderman,
60813939_1 1
Esquire, Barnes Walker, Goethe, Perron & Shea, PLLC, 3119 Manatee Avenue West, Bradenton,
Florida 34205, at ksnyderman@barneswalker.com and mfuller@barneswalker.com, Counsel for
Movants, Robles and Monrroys.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@a rlaw.com
Primary: drew.chesanek@arlaw.com
Secondary: deborah.woodson@arlaw.com
Telephone: (941) 316-7600
Counsel for Plaintiff
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No. 0029355
Drew F. Chesanek
Florida Bar No. 0115933
60813939_1
COURT FILE NO. CV-10-8534-00CL
P-ofessional CV-10-8595-00CL
Court Reporters Inc.
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
HARRY BIEBERSTEIN,
CORPORATE
NORTH YORK PLAINTIFF,
802-4950 Yonge Street
i
North York, Ontario AND
M2N 6K1
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN
FITNESS INC., 487223 ONTARIO LIMITED and 1171852
TORONTO
ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK
401-1 University Avenue
Toronto, Ontario MANAGEMENT SERVICE,
M5! 2P1
DEFENDANTS ,
MISSISSAUGA
401-50 Burnhamthorpe Rd W
Mississauga, Ontario
LSB 3C2
MARKHAM
101-8500 Leslie Street
Markham, Ontario
13T 7M8
HAMILTON
1 Hunter Street E EXAMINATION IN AID OF EXECUTION OF
Ground Floor GABRIEL KIRCHBERGER
Hamilton, Ontario
L8N 3W1
MONDAY, DECEMBER 11, 2017
1:09 P.M.
‘TELEPHONE
416.512.2662
FACSIMILE
416.512.2664
WWW.COURTREPORTERS.CA
PCR@COURTREPORTERS.CA
Exhibit 16
Examination of GABRIEL KIRCHBERGER December 11,2017 PCR# 7192-1 Page 2
APPEARANCES
ON BEHALF OF THE PLAINTIFF,
HARRY BIEBERSTEIN:
ASHA JAMES, MS.
FALCONERS LLP
10 ALCORN AVENUE, SUITE 204
TORONTO, ONTARIO M4V 3A9
TELEPHONE: 416.964.0495
FACSMILE: 416.929.8179
EMAIL: ASHAJ@FALCONERS .CA
ON BEHALF OF THE DEFENDANTS,
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN
FITNESS INC., 487223 ONTARIO LIMITED and 1171852
ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK
MANAGEMENT SERVICE:
JONATHAN ROSENSTEIN, MR.
ROSENSTEIN LAW PROFESSIONAL CORPORATION
5255 YONGE STREET, SUITE 1300
TORONTO, ONTARIO M2N 6P4
TELEPHONE: 416.639.2123
FACSMILE: 647.827.0424
EMAIL: JROSENSTEIN@ROSENSTEINLAW.CA
TELEPHONE FACSIMILE
Professional 416.512.2662 416.512.2664
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Exhibit 16
INDEX OF UNDERTAKINGS
U/T NO. DESCRIPTION PAGE NO:
1 To provide particulars of Canadian pension 14
referred to and how often it is paid
To advise which bank account pension funds are 14
deposited into
To produce share certificate with respect to 16
Northern Gate Limited, if available
To advise name of family trust referred to by 18
Deponent
To ask Trustee if Deponent was ever a 20
beneficiary under the family trust. Also, if
he ceased to be a beneficiary, advise date he
stopped being one
To advise status of York Provincial Group 21
To advise whether or not Deponent held any 24
shares in 117852 Ontario Limited, if so,
provide full particulars
To advise whether Deponent divested of any 24
shares in 117852 Ontario Limited and what
value received
To advise date Meadows Court Properties 26
Limited dissolved
10 To advise if Deponent ever had shares in 29
978824 Ontario Limited and, if he had shares,
when they were divested
11 To advise number of shares held in Brook Mills 29
Limited, and provide full particulars
12 To search records for sales of residential 33
Profession
TELEPHONE PACS
al 416.512.2662 416.512.2664
‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA
Exhibit 16
properties in Ontario between January 12, 2010
and present. If has records, to advise who
the properties were sold to
13 To search records for sales of any assets in 45
Ontario between January 12, 2010 and present.
If so, provide date, description, value and
purchaser
14 To produce income tax return for 2016 46
15 To produce notice of assessment for 2016 Al
16 To advise status of Deponent’s employment with 51
Brook Mills Limited
17 To advise if Deponent is paid a salary by 52
Brook Mills Limited and, if so, advise amount
of salary
18 To ask G. & K. Properties Limited if Deponent 53
still employed by them. And, if so, to advise
his income
19 To advise total amount of rental income 56
Deponent received from 207 150 Colborne Street
from January 1, 2017 until date property sold
20 To provide of all sources of income for 59
Deponent, with amounts of income, paid in 2017
NOTE: The above-recorded indices are provided for ease of
reference only and are not to be relied upon in any manner
whatsoever by the parties hereto or any third party.
Profession
TELEPHONE PACS
al 416.512.2662 416.512.2664
‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA
Exhibit 16
INDEX OF UNDER ADVISEMENTS
U/A NO. DESCRIPTION PAGE NO:
1 To produce income tax return for 2015 46
2 To produce notice of assessment for 2015 47
To advise if Deponent regularly paid by any 60
other employer and whether funds received by
way of direct deposit or cheque
NOTE: The above-recorded indices are provided for ease of
reference only and are not to be relied upon in any manner
whatsoever by the parties hereto or any third party.
Profession
TELEPHONE PACS
al 416.512.2662 416.512.2664
‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA
Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 3
INDEX
Page
EXAMINATION IN AID OF EXECUTION OF 4
GABRIEL KIRCHBERGER
EXAMINATION BY MS. JAMES
‘TELEPHONE FACSIMILE
P, fessional 416.512.2662 416.512.2664
Court Reporters WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA
Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 4
1) EXAMINATION IN AID OF EXECUTION OF GABRIEL KIRCHBERGER
2 MONDAY, DECEMBER 11, 2017
3 1:09 P.M.
COMMISSIONER OF OATHS: Please stand
and raise your right hand. And just state your full
name.
THE DEPONENT: Gabriel Kirchberger.
COMMISSIONER OF OATHS: And do you
10 solemnly affirm that the evidence you're about to give
11 will be the truth, the whole truth and nothing but the
12 truth?
13 THE DEPONENT: Yes.
14 COMMISSIONER OF OATHS: Thank you.
15 COURT REPORTER: My name is Mel
16 Hodge. I am the court reporter who will be taking
17 today's testimony. I am with the firm of Professional
18 Court Reporters.
19 Today is the 11th day of December,
20 2017. The time now is approximately 1:09 p.m.
21 We are at 4950 Yonge Street to take the
22 examination of Gabriel Kirchberger in the matter of
23 Kirchberger et al and Bieberstein, pending in the
24 Superior Court, court file numbers CV-10-8534-00CL and
25 CV-10-8595-00CL.
‘TELEPHONE FACSIMILE
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 5
1 Will counsel please identify themselves
2| for the record, starting with your name, firm and who
3 you represent.
4 MS. JAMES: My name's Asha James, I'm
counsel for the plaintiff, Harry Bieberstein, and I'm
from Falconers LLP.
MR. ROSENSTEIN: Jonathan Rosenstein,
I act for the person being examined, at Rosenstein
Law.
10 COURT REPORTER: Thank you, Counsel.
11 You may now proceed.
12 GABRIEL KIRCHBERGER, affirmed,
13 EXAMINATION BY MS. JAMES :
14 1 Q Good afternoon, Mr. Kirchberger. So you're
15 aware that we're here today in respect of a judgment
16 dated September 23rd, 2016?
17 A Yes.
18 2 Q And you understand that by way of that
19 judgment you've been ordered to pay Mr. Bieberstein
20 the following amounts?
21 MR. ROSENSTEIN: We're not going to
22 do that. The judgment says what it says. You're not
23 going to ask him to confirm that. You're not here to
24 do that.
25 MS. JAMES: Okay.
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 6
1) BY MS. JAMES :
2) 3. Q Can I get your full name, please?
3 A Gabriel Kirchberger.
Q Date of birth?
of June, "49,
Telephone number?
MR. ROSENSTEIN: Sorry, you were
planning calling for some reason?
MS. JAMES: Fine.
10 BY MS. JAMES :
11 6 Q Can we get your residential address?
12 A My residential address is ---
13 MR. ROSENSTEIN: Wherever you live is
14 what she's asking for.
15 THE DEPONENT: I moved to Belize.
16 Belize.
17 BY MS. JAMES :
7
18 Q You don't have a residential address here in
19 Ontario?
20 A No. I have a driver's license but not a
21 residence in the province.
22 8 Q And when did you cease living in Ontario?
23 MR. ROSENSTEIN: oh, is your question
24 when he stopped having a residence in Ontario, is that
25 the question?
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urt Reporters
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 7
MS. JAMES : Yes.
THE DEPONENT: When I stop?
MR. ROSENSTEIN: When did you stop
living in Ontario?
THE DEPONENT: Two months ago.
BY MS. JAMES :
9 Q And prior to no longer residing in Ontario,
what was the residence -- where did you live in
Ontario?
10 325 West Street.
11 10. 3252
12 West Street.
13 11 What city is that in?
14 Brantford. Brantford.
15 12 Did you own that property?
16 No. Rented.
17 13 Who did you rent from?
18 From my company.
19 14 Sorry?
20 From G. & K.
21 15 G & K.?
22 Yes. Property Management.
23 16 And how long did you rent the property for?
24 Two years.
25 17 Is there a lease agreement?
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 8
1 No.
18. Did you pay rent?
Yes.
19. Q And you paid rent to the G. & K. Property
Management?
M'hmm.
20. And how much did you pay in rent?
Eight hundred.
21 A month?
10 Yes.
11 22. What was the size of the property? Was it a
12 home? An apartment?
13 A Apartment.
14 23. Q So 325 West Street, Brantford, Ontario, what
15 was the apartment number?
16 A 101.
17 24. Q And at any time did you own the property
18 located at 325 West Street, Brantford ---
19 No.
20 25. --- Ontario? Sorry?
21 No
22 26. Q So other than the name of Gabriel
23 Kirchberger, do you use any other names?
24 A No
25 27. Q Are you currently married?
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR# 7192-1 Page 9
1 A No.
2] 28. Q And that includes not living in any common-
law relationship, correct?
A No.
29 Are you currently employed?
Yes.
30 By who?
G.K. York.
31 Q And what do you do with G.K. York?
10 A Property manager, till end of the year and
11 afterwards I'm done.
12 32. Q Sorry, I didn't hear that.
13 A Till end of the year, afterwards I'm done.
14 MR. ROSENSTEIN: Even though we're
15 sitting here across the table, this gentleman is
16 typing everything down and is also tape recorder, so
17 you have to speak clearly ---
18 THE DEPONENT: Okay.
19 MR. ROSENSTEIN: --- so he can tape
20 it all.
21 THE DEPONENT: Okay.
22 BY MS. JAMES :
23 33. Q And how long have you worked for G.K. York?
24 A Fifteen years.
25 34. Q Can I get the address of -- the company
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 10
1] address for G.K. York?
2 A 325 West Street, Brantford, Ontario.
3 35. Is there a suite or apartment number?
A100 and -- A100.
36. Q So is 325 West Street, Brantford, a
residential and commercial property?
A Yes. It's actually commercial property.
37. Q So it's a commercial property that you had a
residential unit in?
10 A No, I just had my address there. When I
11 stayed in Brantford I sleep in a hotel. Couple weeks
12 here and there.
13 38. Q So when you stay in Brantford do you stay at
14 different hotels or is it one hotel all the time?
15 Different ones. Whatever is the cheapest.
16 39. And your position as property manager with
17 G.K York is that a full time or a part time position?
18 Full time.
19 40 Do you draw a salary from G.K York?
20 Yes.
21 41 How much?
22 I think 60 to 70 thousand a year.
23 42 Sorry, how much?
24 Between 60 and 70 thousand a year.
25 43 On top of that do you receive any commission
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 11
1] or bonuses?
2 A No.
3 44, Q Is your salary of 60,000 to $70,000 a year,
is it taxable income?
A Yes.
45. Q And is it taxed at source by the employer?
A I don't know.
MR. ROSENSTEIN: I don't know.
BY MS. JAMES :
10 46. Q Okay.
11 I think it's before tax. It's close to
12 that.
13 47 Okay
14 Close
15 48 So ---
16 After tax is like $50,000.
17 49 So when you get paid by the employer, by
18 G.K York a--
19 A month, every month.
20 50 Sorry -- and so they take taxes from you ---
21 Yes.
22 51 --- before they provide you with it?
23 Yes. Yes.
24 52 And how often do you get paid?
25 I believe every two weeks.
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 12
1) 53. Q Every two weeks. And when was the last time
2 you got paid?
3 A First, I think on the lst. First of
December.
54. Q So then if you're getting paid every two
weeks, your next pay will be December 15th?
A Yes. First of January it's over.
55. Q And then you should be paid again on the
29th of December?
10 A Yeah.
11 56. Q And are you retiring from the company or
12 were you terminated?
13 A Retiring.
14 S7 Q And are you receiving any retirement bonus
15 or severance?
16 A No.
17 58 Q So other than your income then at G.K. York,
18 do you receive income from any other employers?
19 A No.
20 MR. ROSENSTEIN: Sorry, is it ones in
21 Ontario?
22 BY MS. JAMES :
23 59. Q In Ontario, yes.
24 A No. Pension, that's it. General pension,
25 Canadian pension.
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 13
1) 60. Q You receive a Canadian pension?
2 A Yeah.
3 61 From whom?
From the government, no.
62 So CPP?
I don't know. Five hundred dollars
something.
MS. JAMES : So can I get an
undertaking to determine who he gets his Canadian
10 pension from.
11 THE DEPONENT: It's old age pension.
12 MR. ROSENSTEIN: We'll find out. So
13 you want to know ---
14 MS. JAMES : If he receives Canadian -
15 - CPP.
16 MR. ROSENSTEIN: Well, we're going to
17 find out exactly what it is that he's referring to
18 when he talks about Canadian pension.
19 MS. JAMES : Yeah.
20 MR. ROSENSTEIN: And we'll tell you
21 who pays it.
22 MS. JAMES: Thanks. And then can I
23 find out how often it's paid?
24 MR. ROSENSTEIN: We'll give you the
25 particulars.
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 14
1 (Whereupon UNDERTAKING NO. 1 To provide particulars
2 of Canadian pension referred to and how often it is
paid.)
BY MS. JAMES :
63. Q And do you receive that -- those funds by
cheque or are they deposited directly into a bank
account?
A I think directly in a bank account, yeah.
64. Q Which bank account are they deposited into?
10 A I don't know.
11 MS. JAMES: So can I get an
12 undertaking to determine or to advise which bank
13 account those pension funds are deposited into?
14 MR. ROSENSTEIN: Yes.
15 (Whereupon UNDERTAKING NO. 2: To advise which bank
16 account pension funds are deposited into.)
17 BY MS. JAMES :
18 65 Q Do you own shares in any corporations?
19 Yes.
20 66 How many corporations do you own shares in?
21 One.
22 67 And which corporation is that?
23 Northern Gate.
24 68 Northern Gate?
25 Limited.
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 15
1} 69. Q And how many shares do you own in that
2 corporation?
3 A Twenty-five.
70. Q And what does Northern Gate Limited do?
Like what kind of company is that?
A Real estate holding.
71. Q And do you have a share purchase agreement
with Northern Gate Limited? Or a share certificate?
MR. ROSENSTEIN: Counsel, those are
10 two different questions.
11 MS. JAMES: Okay.
12 BY MS. JAMES :
13 72. Q So do you have any share purchase agreement
14 with Northern Gate Limited?
15 MR. ROSENSTEIN: Share purchase
16 agreement?
17 MS JAMES: Share, share purchase
18 agreement.
19 MR. ROSENSTEIN: He owns the shares.
20 We have a purchase agreement. You're required to
21 under written development.
22 BY MS. JAMES :
23 73. Q And do you have a share certificate with
24 respect to Northern Gate Limited showing how many
25 shares you own in the corporation?
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 16
1 A I think so.
74. Q So can I get an undertaking to produce the
share certificate?
MR. ROSENSTEIN: We'll give an
undertaking to see if he has it. If he has it we'll
produce it.
(Whereupon UNDERTAKING NO. 3 To produce share
certificate with respect to Northern Gate Limited, if
available.)
10 BY MS. JAMES :
11 75. Q Did you ever own shares in a company 487223
12 Ontario Limited?
13 A No. I am personally, no.
14 76. Q Pardon?
15 A Personally, not.
16 MR. ROSENSTEIN: When she asks you
17 she's always asking whether you, Gabriel Kirchberger,
18 owned or didn't own or whatever. We only talk about
19 you.
20 THE DEPONENT: Okay. Thank you.
21 BY MS. JAMES :
22 771. Q Have you ever been a director of 487223
23 Ontario Limited?
24 A Yes.
25 78. Q In what period?
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Exhibit 16
Examination of GABRIEL KIRCHBERGER December
11, 2017 PCR # 7192-1 Page 17
MR. ROSENSTEIN: Sorry, how is this
relevant?
MS. JAMES : Pardon me?
MR. ROSENSTEIN: How is this
relevant?
MS. JAMES : Because during his -- in
the civil proceedings in respect of this hearing there
was testimony that was given about him owning shares
in these corporations and different values of shares,
10 and I'd like to know if he no longer owns them, when
11 he divested those shares. It's all relevant to the --
12
13 MR. ROSENSTEIN: Yeah, I didn't
14 object until you asked about his being a director. I
15 asked how that's relevant.
16 MS. JAMES : Well, I think it's
17 relevant because my next question's going to be
18
Preview
Filing # 109091550 E-Filed 06/18/2020 06:29:55 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. CASE NO. 17-CA-917 GABRIEL KIRCHBERGER, et al., Defendants. / NOTICE OF FILING HEARING EXHIBITS Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and pursuant to the applicable Florida Rules of Civil Procedure hereby gives notice of filing the attached Exhibits 16 through 25 introduced into evidence at the June 17, 2020 hearing in this cause. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on June 18, 2020 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants Andreas Kirchberger and Golden Key Properties, LLC; and Kristina Hager Snyderman, 60813939_1 1 Esquire, Barnes Walker, Goethe, Perron & Shea, PLLC, 3119 Manatee Avenue West, Bradenton, Florida 34205, at ksnyderman@barneswalker.com and mfuller@barneswalker.com, Counsel for Movants, Robles and Monrroys. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@a rlaw.com Primary: drew.chesanek@arlaw.com Secondary: deborah.woodson@arlaw.com Telephone: (941) 316-7600 Counsel for Plaintiff By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No. 0029355 Drew F. Chesanek Florida Bar No. 0115933 60813939_1 COURT FILE NO. CV-10-8534-00CL P-ofessional CV-10-8595-00CL Court Reporters Inc. ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST BETWEEN: HARRY BIEBERSTEIN, CORPORATE NORTH YORK PLAINTIFF, 802-4950 Yonge Street i North York, Ontario AND M2N 6K1 GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and 1171852 TORONTO ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK 401-1 University Avenue Toronto, Ontario MANAGEMENT SERVICE, M5! 2P1 DEFENDANTS , MISSISSAUGA 401-50 Burnhamthorpe Rd W Mississauga, Ontario LSB 3C2 MARKHAM 101-8500 Leslie Street Markham, Ontario 13T 7M8 HAMILTON 1 Hunter Street E EXAMINATION IN AID OF EXECUTION OF Ground Floor GABRIEL KIRCHBERGER Hamilton, Ontario L8N 3W1 MONDAY, DECEMBER 11, 2017 1:09 P.M. ‘TELEPHONE 416.512.2662 FACSIMILE 416.512.2664 WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11,2017 PCR# 7192-1 Page 2 APPEARANCES ON BEHALF OF THE PLAINTIFF, HARRY BIEBERSTEIN: ASHA JAMES, MS. FALCONERS LLP 10 ALCORN AVENUE, SUITE 204 TORONTO, ONTARIO M4V 3A9 TELEPHONE: 416.964.0495 FACSMILE: 416.929.8179 EMAIL: ASHAJ@FALCONERS .CA ON BEHALF OF THE DEFENDANTS, GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK MANAGEMENT SERVICE: JONATHAN ROSENSTEIN, MR. ROSENSTEIN LAW PROFESSIONAL CORPORATION 5255 YONGE STREET, SUITE 1300 TORONTO, ONTARIO M2N 6P4 TELEPHONE: 416.639.2123 FACSMILE: 647.827.0424 EMAIL: JROSENSTEIN@ROSENSTEINLAW.CA TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc, WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 INDEX OF UNDERTAKINGS U/T NO. DESCRIPTION PAGE NO: 1 To provide particulars of Canadian pension 14 referred to and how often it is paid To advise which bank account pension funds are 14 deposited into To produce share certificate with respect to 16 Northern Gate Limited, if available To advise name of family trust referred to by 18 Deponent To ask Trustee if Deponent was ever a 20 beneficiary under the family trust. Also, if he ceased to be a beneficiary, advise date he stopped being one To advise status of York Provincial Group 21 To advise whether or not Deponent held any 24 shares in 117852 Ontario Limited, if so, provide full particulars To advise whether Deponent divested of any 24 shares in 117852 Ontario Limited and what value received To advise date Meadows Court Properties 26 Limited dissolved 10 To advise if Deponent ever had shares in 29 978824 Ontario Limited and, if he had shares, when they were divested 11 To advise number of shares held in Brook Mills 29 Limited, and provide full particulars 12 To search records for sales of residential 33 Profession TELEPHONE PACS al 416.512.2662 416.512.2664 ‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 properties in Ontario between January 12, 2010 and present. If has records, to advise who the properties were sold to 13 To search records for sales of any assets in 45 Ontario between January 12, 2010 and present. If so, provide date, description, value and purchaser 14 To produce income tax return for 2016 46 15 To produce notice of assessment for 2016 Al 16 To advise status of Deponent’s employment with 51 Brook Mills Limited 17 To advise if Deponent is paid a salary by 52 Brook Mills Limited and, if so, advise amount of salary 18 To ask G. & K. Properties Limited if Deponent 53 still employed by them. And, if so, to advise his income 19 To advise total amount of rental income 56 Deponent received from 207 150 Colborne Street from January 1, 2017 until date property sold 20 To provide of all sources of income for 59 Deponent, with amounts of income, paid in 2017 NOTE: The above-recorded indices are provided for ease of reference only and are not to be relied upon in any manner whatsoever by the parties hereto or any third party. Profession TELEPHONE PACS al 416.512.2662 416.512.2664 ‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 INDEX OF UNDER ADVISEMENTS U/A NO. DESCRIPTION PAGE NO: 1 To produce income tax return for 2015 46 2 To produce notice of assessment for 2015 47 To advise if Deponent regularly paid by any 60 other employer and whether funds received by way of direct deposit or cheque NOTE: The above-recorded indices are provided for ease of reference only and are not to be relied upon in any manner whatsoever by the parties hereto or any third party. Profession TELEPHONE PACS al 416.512.2662 416.512.2664 ‘s Tne. WWAW,.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 3 INDEX Page EXAMINATION IN AID OF EXECUTION OF 4 GABRIEL KIRCHBERGER EXAMINATION BY MS. JAMES ‘TELEPHONE FACSIMILE P, fessional 416.512.2662 416.512.2664 Court Reporters WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 4 1) EXAMINATION IN AID OF EXECUTION OF GABRIEL KIRCHBERGER 2 MONDAY, DECEMBER 11, 2017 3 1:09 P.M. COMMISSIONER OF OATHS: Please stand and raise your right hand. And just state your full name. THE DEPONENT: Gabriel Kirchberger. COMMISSIONER OF OATHS: And do you 10 solemnly affirm that the evidence you're about to give 11 will be the truth, the whole truth and nothing but the 12 truth? 13 THE DEPONENT: Yes. 14 COMMISSIONER OF OATHS: Thank you. 15 COURT REPORTER: My name is Mel 16 Hodge. I am the court reporter who will be taking 17 today's testimony. I am with the firm of Professional 18 Court Reporters. 19 Today is the 11th day of December, 20 2017. The time now is approximately 1:09 p.m. 21 We are at 4950 Yonge Street to take the 22 examination of Gabriel Kirchberger in the matter of 23 Kirchberger et al and Bieberstein, pending in the 24 Superior Court, court file numbers CV-10-8534-00CL and 25 CV-10-8595-00CL. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 5 1 Will counsel please identify themselves 2| for the record, starting with your name, firm and who 3 you represent. 4 MS. JAMES: My name's Asha James, I'm counsel for the plaintiff, Harry Bieberstein, and I'm from Falconers LLP. MR. ROSENSTEIN: Jonathan Rosenstein, I act for the person being examined, at Rosenstein Law. 10 COURT REPORTER: Thank you, Counsel. 11 You may now proceed. 12 GABRIEL KIRCHBERGER, affirmed, 13 EXAMINATION BY MS. JAMES : 14 1 Q Good afternoon, Mr. Kirchberger. So you're 15 aware that we're here today in respect of a judgment 16 dated September 23rd, 2016? 17 A Yes. 18 2 Q And you understand that by way of that 19 judgment you've been ordered to pay Mr. Bieberstein 20 the following amounts? 21 MR. ROSENSTEIN: We're not going to 22 do that. The judgment says what it says. You're not 23 going to ask him to confirm that. You're not here to 24 do that. 25 MS. JAMES: Okay. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 6 1) BY MS. JAMES : 2) 3. Q Can I get your full name, please? 3 A Gabriel Kirchberger. Q Date of birth? of June, "49, Telephone number? MR. ROSENSTEIN: Sorry, you were planning calling for some reason? MS. JAMES: Fine. 10 BY MS. JAMES : 11 6 Q Can we get your residential address? 12 A My residential address is --- 13 MR. ROSENSTEIN: Wherever you live is 14 what she's asking for. 15 THE DEPONENT: I moved to Belize. 16 Belize. 17 BY MS. JAMES : 7 18 Q You don't have a residential address here in 19 Ontario? 20 A No. I have a driver's license but not a 21 residence in the province. 22 8 Q And when did you cease living in Ontario? 23 MR. ROSENSTEIN: oh, is your question 24 when he stopped having a residence in Ontario, is that 25 the question? TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 urt Reporters Inc. WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 7 MS. JAMES : Yes. THE DEPONENT: When I stop? MR. ROSENSTEIN: When did you stop living in Ontario? THE DEPONENT: Two months ago. BY MS. JAMES : 9 Q And prior to no longer residing in Ontario, what was the residence -- where did you live in Ontario? 10 325 West Street. 11 10. 3252 12 West Street. 13 11 What city is that in? 14 Brantford. Brantford. 15 12 Did you own that property? 16 No. Rented. 17 13 Who did you rent from? 18 From my company. 19 14 Sorry? 20 From G. & K. 21 15 G & K.? 22 Yes. Property Management. 23 16 And how long did you rent the property for? 24 Two years. 25 17 Is there a lease agreement? ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 8 1 No. 18. Did you pay rent? Yes. 19. Q And you paid rent to the G. & K. Property Management? M'hmm. 20. And how much did you pay in rent? Eight hundred. 21 A month? 10 Yes. 11 22. What was the size of the property? Was it a 12 home? An apartment? 13 A Apartment. 14 23. Q So 325 West Street, Brantford, Ontario, what 15 was the apartment number? 16 A 101. 17 24. Q And at any time did you own the property 18 located at 325 West Street, Brantford --- 19 No. 20 25. --- Ontario? Sorry? 21 No 22 26. Q So other than the name of Gabriel 23 Kirchberger, do you use any other names? 24 A No 25 27. Q Are you currently married? ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR# 7192-1 Page 9 1 A No. 2] 28. Q And that includes not living in any common- law relationship, correct? A No. 29 Are you currently employed? Yes. 30 By who? G.K. York. 31 Q And what do you do with G.K. York? 10 A Property manager, till end of the year and 11 afterwards I'm done. 12 32. Q Sorry, I didn't hear that. 13 A Till end of the year, afterwards I'm done. 14 MR. ROSENSTEIN: Even though we're 15 sitting here across the table, this gentleman is 16 typing everything down and is also tape recorder, so 17 you have to speak clearly --- 18 THE DEPONENT: Okay. 19 MR. ROSENSTEIN: --- so he can tape 20 it all. 21 THE DEPONENT: Okay. 22 BY MS. JAMES : 23 33. Q And how long have you worked for G.K. York? 24 A Fifteen years. 25 34. Q Can I get the address of -- the company ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 10 1] address for G.K. York? 2 A 325 West Street, Brantford, Ontario. 3 35. Is there a suite or apartment number? A100 and -- A100. 36. Q So is 325 West Street, Brantford, a residential and commercial property? A Yes. It's actually commercial property. 37. Q So it's a commercial property that you had a residential unit in? 10 A No, I just had my address there. When I 11 stayed in Brantford I sleep in a hotel. Couple weeks 12 here and there. 13 38. Q So when you stay in Brantford do you stay at 14 different hotels or is it one hotel all the time? 15 Different ones. Whatever is the cheapest. 16 39. And your position as property manager with 17 G.K York is that a full time or a part time position? 18 Full time. 19 40 Do you draw a salary from G.K York? 20 Yes. 21 41 How much? 22 I think 60 to 70 thousand a year. 23 42 Sorry, how much? 24 Between 60 and 70 thousand a year. 25 43 On top of that do you receive any commission ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 11 1] or bonuses? 2 A No. 3 44, Q Is your salary of 60,000 to $70,000 a year, is it taxable income? A Yes. 45. Q And is it taxed at source by the employer? A I don't know. MR. ROSENSTEIN: I don't know. BY MS. JAMES : 10 46. Q Okay. 11 I think it's before tax. It's close to 12 that. 13 47 Okay 14 Close 15 48 So --- 16 After tax is like $50,000. 17 49 So when you get paid by the employer, by 18 G.K York a-- 19 A month, every month. 20 50 Sorry -- and so they take taxes from you --- 21 Yes. 22 51 --- before they provide you with it? 23 Yes. Yes. 24 52 And how often do you get paid? 25 I believe every two weeks. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 12 1) 53. Q Every two weeks. And when was the last time 2 you got paid? 3 A First, I think on the lst. First of December. 54. Q So then if you're getting paid every two weeks, your next pay will be December 15th? A Yes. First of January it's over. 55. Q And then you should be paid again on the 29th of December? 10 A Yeah. 11 56. Q And are you retiring from the company or 12 were you terminated? 13 A Retiring. 14 S7 Q And are you receiving any retirement bonus 15 or severance? 16 A No. 17 58 Q So other than your income then at G.K. York, 18 do you receive income from any other employers? 19 A No. 20 MR. ROSENSTEIN: Sorry, is it ones in 21 Ontario? 22 BY MS. JAMES : 23 59. Q In Ontario, yes. 24 A No. Pension, that's it. General pension, 25 Canadian pension. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 13 1) 60. Q You receive a Canadian pension? 2 A Yeah. 3 61 From whom? From the government, no. 62 So CPP? I don't know. Five hundred dollars something. MS. JAMES : So can I get an undertaking to determine who he gets his Canadian 10 pension from. 11 THE DEPONENT: It's old age pension. 12 MR. ROSENSTEIN: We'll find out. So 13 you want to know --- 14 MS. JAMES : If he receives Canadian - 15 - CPP. 16 MR. ROSENSTEIN: Well, we're going to 17 find out exactly what it is that he's referring to 18 when he talks about Canadian pension. 19 MS. JAMES : Yeah. 20 MR. ROSENSTEIN: And we'll tell you 21 who pays it. 22 MS. JAMES: Thanks. And then can I 23 find out how often it's paid? 24 MR. ROSENSTEIN: We'll give you the 25 particulars. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 14 1 (Whereupon UNDERTAKING NO. 1 To provide particulars 2 of Canadian pension referred to and how often it is paid.) BY MS. JAMES : 63. Q And do you receive that -- those funds by cheque or are they deposited directly into a bank account? A I think directly in a bank account, yeah. 64. Q Which bank account are they deposited into? 10 A I don't know. 11 MS. JAMES: So can I get an 12 undertaking to determine or to advise which bank 13 account those pension funds are deposited into? 14 MR. ROSENSTEIN: Yes. 15 (Whereupon UNDERTAKING NO. 2: To advise which bank 16 account pension funds are deposited into.) 17 BY MS. JAMES : 18 65 Q Do you own shares in any corporations? 19 Yes. 20 66 How many corporations do you own shares in? 21 One. 22 67 And which corporation is that? 23 Northern Gate. 24 68 Northern Gate? 25 Limited. ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 15 1} 69. Q And how many shares do you own in that 2 corporation? 3 A Twenty-five. 70. Q And what does Northern Gate Limited do? Like what kind of company is that? A Real estate holding. 71. Q And do you have a share purchase agreement with Northern Gate Limited? Or a share certificate? MR. ROSENSTEIN: Counsel, those are 10 two different questions. 11 MS. JAMES: Okay. 12 BY MS. JAMES : 13 72. Q So do you have any share purchase agreement 14 with Northern Gate Limited? 15 MR. ROSENSTEIN: Share purchase 16 agreement? 17 MS JAMES: Share, share purchase 18 agreement. 19 MR. ROSENSTEIN: He owns the shares. 20 We have a purchase agreement. You're required to 21 under written development. 22 BY MS. JAMES : 23 73. Q And do you have a share certificate with 24 respect to Northern Gate Limited showing how many 25 shares you own in the corporation? ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 16 1 A I think so. 74. Q So can I get an undertaking to produce the share certificate? MR. ROSENSTEIN: We'll give an undertaking to see if he has it. If he has it we'll produce it. (Whereupon UNDERTAKING NO. 3 To produce share certificate with respect to Northern Gate Limited, if available.) 10 BY MS. JAMES : 11 75. Q Did you ever own shares in a company 487223 12 Ontario Limited? 13 A No. I am personally, no. 14 76. Q Pardon? 15 A Personally, not. 16 MR. ROSENSTEIN: When she asks you 17 she's always asking whether you, Gabriel Kirchberger, 18 owned or didn't own or whatever. We only talk about 19 you. 20 THE DEPONENT: Okay. Thank you. 21 BY MS. JAMES : 22 771. Q Have you ever been a director of 487223 23 Ontario Limited? 24 A Yes. 25 78. Q In what period? ‘TELEPHONE FACSIMILE Professional 416.512.2662 416.512.2664 Court Reporters Inc. 'WWW.COURTREPORTERS.CA PCR@COURTREPORTERS.CA Exhibit 16 Examination of GABRIEL KIRCHBERGER December 11, 2017 PCR # 7192-1 Page 17 MR. ROSENSTEIN: Sorry, how is this relevant? MS. JAMES : Pardon me? MR. ROSENSTEIN: How is this relevant? MS. JAMES : Because during his -- in the civil proceedings in respect of this hearing there was testimony that was given about him owning shares in these corporations and different values of shares, 10 and I'd like to know if he no longer owns them, when 11 he divested those shares. It's all relevant to the -- 12 13 MR. ROSENSTEIN: Yeah, I didn't 14 object until you asked about his being a director. I 15 asked how that's relevant. 16 MS. JAMES : Well, I think it's 17 relevant because my next question's going to be 18