Preview
Filing # 73173090 E-Filed 06/06/2018 02:20:13 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA owenbel VilACTION
HARRY BIEBERSTEIN,
Plaintiff,
¥. Case No. 17-917CA
GABRIEL KIRCHBERGER, CAROL
DEVILLE, SOUTHERN SHORE
ENTERPRISES, LLC, a Florida limited
liability company, and MOONSTONE
HOLDINGS, LLC. a Nevada limited
liability company,
Defendants.
es ws
NOTIC 2 EXHIBIT H (Part I} TO ROSE! ti VIT IN SUPPORT OF
DEFDEVILLE'S
END MOTION
ANT TO DISMISS
COMES NOW CAROL DEVILLE, Defendant, by arid through her undersigned attomey and
provides Notice of Filing Exhibit H (Part 1) to the Affidavit of JONATHAN ROSENSTEIN in support
of Defendant DEVILLE’S Motion to Dismiss.
|! HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished court
©-portal service to MARK A. SLACK, ESQ. mslack@wwmralaw.com 9045 Strada Stell Court, Suite
400, Naples. FL 34109 and to ROBERT W. SEGUR, ESQ. Leggi@sequriaw
net 1450 S. McCall
Road, Suite 2E. Englewood, Fi 34223 this 6" day of June, 2078
“~
fh} fff,
thd A {
sa
Dat 1c OAKS, ESS.
407 East Marion Avenue, Suite 704
Punta Gorda, FL 33950
(941) 639-7627
KSe: eT
Florida Bar No. 0301817
Attomey for Defendant DEVILLE
es rect tents
Court File Ne. csosea
ONTARIO
Superior Court of Justice
BETWEEN:
HARRY BIEBERSTEIN
-and -
GABRIEL KIRCHBERGER, SUSANNE SCHIDT, NOMEN
FITNESS INC., 487223 ONTARIO LIMITED, 1171852
ONTARIO LIMITED
PROCEEDINGS
Before THE HONOURABLE MADAMJUSTICE
THORBURN at the Court House, 330 University Ave,
Toronto, Ontario, on February 10, 2014
APPEARANCES:
M. Manning Counsel for the Plaintiff
F. Shuh
J. Rosenstein Counsel for the Defendant
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Court File No. CV-1L9-00008534
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ONTARIO
SUPERICR COURT OF JUSTICE
COMMERCIAL LIST
BETWE SR:
HARRY BIEBERSTEIN
Plaintitt
+ and ~
GABRIEL KIRCRBERGER, SUSANNE SCHMIDT, NOMBN FITNESS INC.,
487223 ONTARIO LIMITED, 1171852 ONTARIC LIMITED
Defendant
PROCEEDING §
-
BEFORE THE HONOURABLE MADAM JUSTICE THORBURN on February
16, 2014 at TORONTO, Ontaria
AEPEARANCE +
M. Manning Counsel for the Plaintiff
EF, Shuh
3. Rosenstein Counsel for the Defendant.
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SUPERIOR COURT OF JUSTICE
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WITNESS Examination Cross- Re-
In-Chiet Examinatic ae Exam: tion
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EXHIBITS
EXHIBIT NUMBER PAGE NUMBER
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Biebertein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
i February 10th, 2014
2- UPON COMMENCING...
3
4 THE REGISTRAR: Court is in session. Please
$ be seated.
ws
6 THE. COURT: Good merning.
os MR. MANNING: Good morning, Your Honour.
MER, SHUH: Goad moxning, Your Honour.
MR ROSENSTEIN: Good morning, Your Honour.
10 TEE COURT: i wanted to ask you some things.
ul First of all, I think that we were dealing
oo
12 with two issues, one is whether the trial
Gb must be adjourned, ané the second is whether
i¢ the trial should be acjocurned.
is In terms of whether the trial must he
{6 adjourned I don’t think that it must be
Wy adjourned because 2t don't think my Order
- 1g fits within 63.01. But I'm still struggling
19 with is whether at should be adjourned in
accordance wit Rule 63.0271.
os
2
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
And I have some questions that I wanted to
have anewered. towent through the List of
orders, end there's an order Justice Mesbur
ordered that the motion fer summary judgment
you acheduled o an Oct
fee ober il, 2911. Which
motion for summary judgment was that?
MR. Me
ROSENSTE. aN: That was the one that was
before Custice Wilton-Siegel.
16 {THE COURT + So it-didn't ge ahead for
I another year? Is there?
i2 MR. ROSENSTEL £ It ultimately came back
3 before == first -- I want te say that it
14 actually came back in theory before
15 Justice Hoy, and then it came back before
16 Justice Brown, who adjourned it at that
\? point. Mr. Manning objected ts
18 Justice Brown hearing the matter nothing
19 turns on that except he simply adjourned x4 ‘
20 It ultimately became adjourned to the trial.
3
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
Trial Procesding
THE COURT: Was it this on October ith of?
MR. ROSENSTEIN: it was on or about October
a Lith.
THE COURT: okay.
MR. ROSENSTEIN: £=z can't remember if it was
the exact date. It was ultimately
adjourned. And then Justice Cumming, in an
endorsement
THE COURT: Right.
10 MR. ROSENSTEIN: om that you have ««
VM THE COURT: *
saw that, April 27th.
a
12 ROSENSTEIN: In other words, it was
13 Still pending. Tt hadn't been heard at that
14 point. And then he opined thet it ought te
1s be made at the outset of trial as opposed to
16 finding seme date between the Spring of
i? two-thousand ~=
18 THE COURT: Sc it's nebody's fault. Th just
19 teck over a year for thig motion te get on.
92 rt+ mean, certainly not the sarty's fault --
i
4
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
MEK. ROSENSTRIN: Ho. There's a fot of
history, but I doen't think --
THE COURT: Gkay.
MR. KOSENSTEIN: ~~ there's any fault, yes.
THE COURT: ALL right. ALL right.
and you had mentioned something, Mr.
Rosenstein, about the fact: that
Justice Wilten-Siegel decided that he was
going to put the eri
tra. on to rhe
the first
ia available date.
1 MR. ROSENSTEIN: Right.
R TEE COURT: On December 1éth.
3 MR. ROSENSTEIN: That's his endorsement of
4 January the 30th ex Bist of 2013.
THE COURT: Okay.
16 Why did he put it te the first available
iF date?
18 MR. ROSENSTE = Well, if you take a look at
1g the endorsement, there was a tab 5. i don’s
20 know aié it's made its way back into there.
g
Biebenstein
v, Kirchbenger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
THE COURT: Tab 5 of the --
MR. ROSENSTEIN: of that.
os
THE COURT: ~« big trial record?
+
MR. ROSENSTEIN: The big trial companion =
have handed up last time --
THE COURT: Yes.
MR. ROSENSTEIN: ~~ that got torn apart.
THE COURT: Oh, yes, okay. Right.
Endorsement of Wilson-Siegel dated January
10 30th. Yes.
i MR. ROSENSTEIN: Right.
2 THE COURT: Okey.
3 MR. ROSENSTEIN: Bo if you just turn back,
14 it's best understood in conjunction with the
18 previous one. Se if you Look at tab 4
16 you'll see on November 29, which is about
Vy ten days after -~
18 THE COURT: Right.
19 MR. ROSENSTEIN: ~~ we've heard of the
20 motion, sé came before him and he said,
oe
6
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
“Motion of the Plaintirt for adjournment of
the trial
THE COURT: Righc.
” -- an
MR ROSENSTEIN: the Cross~m ion of
the Defendants we heard on January 29.”
TEE COURT: Right.
MR OSENSTEIN: By January 20th, the
Plaintiffs hadn"t actuslly brought that
formal motion to adjourn, o they had asked
10 that the trial be adjourned.
it TEER COURT: Why would they be bringing a
iz motion to adjourn when it already hasa't
3 taken place for over a month? I'm missing
i4 gomething here.
15 MR. ROSENSTEIN: -
ALL z gan say is the
16 Flaintiffs had -~
V7 THE COURT: Wasn't it de facts adjourned?
18 ME. ROSENSTEIN: Well, it was adjourned
19 because the Plaintiffs had asked for ge
ifs te
20 he adjourned. T had asked that hey moved
7
Bicherstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
‘Trial Proceeding
formally so that ZLx could cross move for
terms of the adjournment. And
Justice Wilton-Siegel agreed that they
should bring a formal metion o£ adjournment
as opposed to simply saying, "We don't want
wn
to proceed.” And the judge saying, "Okay."
~~ THE COURT: Okay,
MR. ROSENSTEIN: And so that led van
THE COURT: Why did he agree to adjourn?
10 MR. ROSENSTEIN: I+ There was a dispute
ul between the perties as to exactly why he
2 agreed te adjourn, and ultimately =
is dispute ~ There was a dispute between the
4 Bench and the Bar.
oe
is THE COURT: No, bul my Understanding is that
16 wou, a@ithough the Defendant Jost that motien
i7 for partial summary judgement, were not
18 saying that, wey i+ am going and appeal,
ELMS»
19 go this thing can't be resolved --
20 MR. ROSENSTEIN: No.
pen
&
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
THE COURT; S-— dn the interim"?
ROSENSTEIN: No.
THE COURT: So why was it not heard?
MR . ROSENSTEIN: The Plaintiff£ asked that it
net
not proceed, dustice Wilton
9 THE COURT: Right.
20 MR. ROSENSTEIN: -~ the #8 pointes, and
etn
ie
iF
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Tharbumn
‘Trial Proceeding
D gets out where they come from and the
reasons for the decision of
Justice Wilton-Siegel and the Court of
Appeals.
THE COURT: Okay. And I guess I'll be
asking you, Mr. Manning, a4 a this the
complete list of issues that would be the
issues if every -~ everything were at issue
in this trial? I'm saying, assuming that
0 you Gon't skied at the Court of Appeal -~
il MR. MANNING: Yes.
THE COURT: Okay. {Inaudible} to my
Wa endorsement. Would this be the complete
4 dist of issues that would be ~- to be
on
a5 canvassed at trial?
i6 MR. MANNING: Well, not with respect te the
7 unjuet enrichment part, but certainly with
18 respect to the --
19 THE COURT: ++ to the acknowledgments?
20 MR. MANNING: -~ ackno: Ledge: nt By yes.
oe
Ln
18
Bieberstein
v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
THE COURT: Okay. Okay, thank you. ALL
right. So now this is the third adjournment
that's been scught by the Plaintiff, right?
Am I right? ‘Cause there's November 2012,
and we don't know what reagon it was that. it
was adjourned; December 20 3, because you
didn't need just five days, you needed more
time because all of these issues have to be
arqued <=
10 MR. ROSENSTERIN: That’s right.
i THE COURT: ~« on the acknowledgement?
MR. ROSENSTE? : On the acknowledgement
3 issue. Well, again --
14 THE COURT: Well, that's what I'm trying to
1s understand. Ife
rf a li of the tt this list
16 of 28 issues is the complete list of issues
7 en the acknowledgements -- that's wha +t you
18 just said, Mr. Manning. Am tqt rig het
he?
ig MR. MANNING: These are the facts that 1
20 indicated that in my view had already been
tami
19
Bieberstein v. Kirchberger et al
Before ‘The Honourable Madam Justice Thorbum
Trial Proceeding
on established.
THE COURT: Right. Buk ag q¢ understand it,
—
you people were before Justice Morawetz in
December.
MR. MANNING: Yes.
THE COURT: And the point that was made
before Justice Morawetz was five days is not
going to be enough because I have sent this
list of 28 issues to my friend and he hasn't
nee 10 said that those are off the table, go fT
i can no longer commit to being able to finish
12 this trial within five days. rI now need
3 much more time.
14 WR. MANNING: Yee.
15 THE COURT: So what T'm trying te understand
16 is isn't that inconsistent with coming here
17 and saying, weil, I had no idea we were ever
18 going to be dealing with these issues,
19 because T just thought that +
i was going to
20 win on my epplication. Cleariy the whole
~
~
ne
29
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
xeason that you asked fox more time, at
beast if I’m understanding <- I'm just try
vo go understand what went on.
MR. MANNING: =z understand, Your Honour.
THE COURT: So this I can understand the
justice of all of this.
MR. MANNING: Of course, And in fairness to
the plaintiff's position, the 28 matters
”
thet. r listed that's coming out ef the
10 decisions of Justice Wilton-Siegel and the
i Court of Appeal were not agreed to hy my
i friend as having been established.
a THE. COURT: Right.
i4 MR. MANNING: So the issue ef how long a
is tial, if you had to establish those, and
16 where that led you ~
7 THE COURT: Right.
18 ME. MANNING: ~- obviously, Li meant you
19 couldn't do a trial in five daya.
20 THE COURT: Right.
we
ai
Bieberstein v. Kirchberger ct al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
MR. MANNING: Tt wasn't until the motion
before you that my friend said, "Oh, hh
APR
concede these, but I won't concede those.”
wo TAE COURT: I understand.
Me es
MANN IN Gs So that at that -~ at the
revicus point in time it was up clear as to
exactly how much time was going to be needed
THE COURT: Right.
10 MR. MANNING: ~~ if we were going to take
i the first group of issues and facts -~
i2 THE COURT: Right.
W MR. MANNING: -~ and see where thet led with
14 E@Spect to the rest of the case,
1s THE COURT: My point is that at the point at
16 which you were before Justice Morawetz it
W waa envisaged that everything was on the
18 table, and nat's why you needed the
13 additional time.
26 MER. MANNING: Yes.
a
22
Bieberstein v, Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
THE COURT: So it seems to me that you're
now saying, "Well, it couldn’ +5 possibly go
ahead. it would be totally unjust to go
ahead in view of the fact that I've got this
appeal going to the Court of Apyeal of your
endorsement. And x think that those Lesgues
are all off the table. But it was clearly
envisaged in December before
Justice Morawets that many if not all ef
16 these issues were quite possibly going to he
ui on the table at the trial, hence the desire
2 for = a as much ti
13 MR MANNING: Yes.
a
14 THE COURT: Right? Okay.
1s
16 Okay. And I guess +I net that © did to
Wy understand frem both of you: What issues do
18 you Say would be canvassed? Because what
19 i‘m trying te see is whether with or without
20 Sf unequivocal answer on those issues that I
23
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
determined we can proceed with this trial
and be fair to everybody.
MR. aah.
ROSENSTE ans So I have some difficulty
only that I'm the Defendant, and --
THE COURT: I'm not necessarily asking you
to qo First.
MR. BOSENSTEIN: Right.
TRE COURT: I'm asking the collective here.
So.-=
vom 10 MR. ROSENSTEIN: So let me begin by just
i seying: My submission is that in order to
2 ebtein @ judgment on the acknowledgements -~
3 and by that I don't mean conceptually what
14 WOULd Some person have t6 show up with some
13 acknowledgements, iomean this Plaintiff to
16 get an order in respect of these
17 acknowledgements against this Mr.
18 Kirchberger.
19
20 At the very least, you have to prove the
24
Bieberstein v. Kirchberger et ai
Before The Honourable Madam Justice Thorburn
Trial Proceeding
ree things that I took issue with --
THE. COURT: Right.
MR. ROSENSTRIN ~ which, not surprisingly,
his ciient took issue with it.
THE COURT: Right, right.
MR. ROSENSTEIN: To be perfectly candid, r
haven't turned my mind as to whether there's
a fourth or a fifth. i know that the
Plaintiff has to prove all of the elements
©
10 ef the clai a¢ can say aa I stand here
fi there may not be more than those three.
12 TRE COURT: Well, shouldn’ & you be locking
13 at those list of 28 issues that your friend
i4 says is the comprehensive list of issues and
i5 let us know? I mean, Todon‘t know how
16 aitficult that would he, i mean, you've got
i? the 28 z Sues, you've had them for a while,
18 and
19 UR. ROSENSTEIN: I'm happy to de it. Again,
20 my difficuity with the list always was I
25
Biebersteinv. Kirchberger et al
Before The Honourable Madam Justice Thorbum
Trial Proceeding
didn't see them as being an effort to say
here's an element. of the claim, Ilva now
proven it with this issue. The issues were
never listed in that fashion, they were
listed in the Justice Wilton~Siegel said
acts, who acts as established without trying
Lo correspond that to a particular element
of the oc lai ams.
ol
10 So then it leaves me to say, well, when you
il say that acts has been established, what you
2 really mean is that the factual basis for
3 this claim has been established -- not
id necessarily an exercise £I wanted to co for
i$ my friend, i sort of would rather leave him
16 to do that and to explain ta you what issues
oo
7 are -~ remain open other than those three,
is and then perhaps sey
i L have some submissions
19 in respect with the acknowledgements.
20 THE COURT: But I think to be fairy te your
oo
26
Bieborstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
friend, i think he's done that. i§ think he
sald that I've got all 28 here. These .are:
the list. And he says that when he brought
this list and sent it over to you, yor
didn't agree with anything. So then he goes
aver to Justice Morawete and says, icok,
everything's et issue here; I'm going te
need lots more time. And now you're saying,
well, actually, many of#¢ th h 3086 I'm nob really
id taking issue with.
W MR. ROSENSTEIN: Well, +r sould just
i2 certainiy.
id THE COURT: So he has done his work, a6 whet
i4 about you?
i ME. ROSENSTEIN: Well, i*‘m happy to go
16 through that list of 28 and List which
iT gssues in the 26 I'm not taking issue with.
18 I think it's net as fair to say to the
19 Defendant, weil, you tell me in advance
which of the elements of the claim you think
Sn
27
Bieberstein
vy, Kirchberger ¢t al
Before The Honourable Maram Justice Thorburn
Trial Proceeding
a are now satisfied and which remain open for
trial.
THE COURT: Weil, Bos But he has listed ail
of the things that he says will be at issue
in this trial.
MR. ROSENSTEIN: Right. And I'm happy ~~
i the answer i9 simple. i‘m happy to go
through the 28 --
we
THE COURT: Okay.
10 MR. ROSENSTEIN: ~- and give a thumbs up or
i thumbs down te every single one of the 28.
2 THE COURT: Okay. All right, So -~
13 MR. ROSENSTSIN: And then quest to finish the
14 thought in answer te your question ~
wo
15 THE COURT: Bight.
16 MR. ROSENSTEIN: In respect of the -- what I
~
Wy call the equitable claims, which is
18 everything but the acknowledgement claims,
19 A, I don*t think any of those things have
=
20 been established, period. And more
28
Bichersiein
v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
=
specifically, Tdon't think thet anything in
the decision of the motion for summary
judgment Judge or the Court of Appeal had
anything to say abeut those claims.
TRE COURT: But you said to me on Friday, I
believe, that these issues are entirely me
severable ~~
MR. ROSENSTEIN: Right.
THE. COURT: -- from the issue of the
io acknowledgement
il MR. ROSENSTEIN: Yes.
THE COURT: And I'd like you to expand on
i that. I need to anderstand that. Tim not
4 sure I entirely understand. Because what
1s Mr. Manning has said is a finding on the
16 acknowledgement is a prerequisite. That.
7 doesn't necessarily mean it isn't severable.
18 MR. ROSENS' *: A necessary but. not
19 sufficient condition.
2b THE COURT: Yes,
pee
29
Bieberstein v, Kirchberger et al
Belore The Honourable Madam Justice Thorburn
Trial Proceeding
ME. ROSENSTEIN: You know, no, IT understand
him, and I guess 44 can -- I'm happy to go
through the pleading again. Bot as an
overarching level, she el ment -- the claims
that are the -~ the equitable claims are
threefold: There's a fraud claim, there's a
conversion claim, and there's an unjust
enrichment aS.
THE COURT: I understand.
10 MR. ROSENSTEIN: And so the elements of
1] those claims being what they are, the facts
12 require --
13 THE COURT: A derivative from the money that
14 was done pursuant to the assignment and
is acknowledgement, these very same eight
16 acknowledgements?
iF MR. ROSENSTEIN: Well --
we TRE COURT: "Cause you seem to he suggesting
15 it was something different, and that's what
wan te understand.
in
a
30
Bieherstein v. Kirchberger et al
Before The Hoaourable Madam Justice Thorburn
‘Trial Proceeding
MR. ROSENSTRIN: Right. So again, this is
where the Blainciff -- my friend -~ we'll
ieave the Plaintiffs -- my friend and I juar
fundamentally disagree conceptually.
5 There's no real dispute that there was a
Batt. Actual money was borrowed and changed
hands. Cash that had belenged to ~- [I'm
going to pick on the Berliner Bank, hecause
you know there's a lor of banks. $0 there's
16 no question that the Berliner Bank wrote a
i cheque or did a wire te a company called
12 Imea. There was a loan. Money that had
13 belonged to Imca now belonged to -- pardon
14 me. Money that belonged te Berliner Bank
18 now belong to Imea, and Imca was now a
16 debtor to the bank.
We
1s There's no question that that transa 200)
9 happened. Separate from that transaction,
20 though in a sense related, the Berliner Bank
.
3
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
Trial Proceeding
went to Gabriel
Preview
Filing # 73173090 E-Filed 06/06/2018 02:20:13 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA owenbel VilACTION HARRY BIEBERSTEIN, Plaintiff, ¥. Case No. 17-917CA GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORE ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC. a Nevada limited liability company, Defendants. es ws NOTIC 2 EXHIBIT H (Part I} TO ROSE! ti VIT IN SUPPORT OF DEFDEVILLE'S END MOTION ANT TO DISMISS COMES NOW CAROL DEVILLE, Defendant, by arid through her undersigned attomey and provides Notice of Filing Exhibit H (Part 1) to the Affidavit of JONATHAN ROSENSTEIN in support of Defendant DEVILLE’S Motion to Dismiss. |! HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished court ©-portal service to MARK A. SLACK, ESQ. mslack@wwmralaw.com 9045 Strada Stell Court, Suite 400, Naples. FL 34109 and to ROBERT W. SEGUR, ESQ. Leggi@sequriaw net 1450 S. McCall Road, Suite 2E. Englewood, Fi 34223 this 6" day of June, 2078 “~ fh} fff, thd A { sa Dat 1c OAKS, ESS. 407 East Marion Avenue, Suite 704 Punta Gorda, FL 33950 (941) 639-7627 KSe: eT Florida Bar No. 0301817 Attomey for Defendant DEVILLE es rect tents Court File Ne. csosea ONTARIO Superior Court of Justice BETWEEN: HARRY BIEBERSTEIN -and - GABRIEL KIRCHBERGER, SUSANNE SCHIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED, 1171852 ONTARIO LIMITED PROCEEDINGS Before THE HONOURABLE MADAMJUSTICE THORBURN at the Court House, 330 University Ave, Toronto, Ontario, on February 10, 2014 APPEARANCES: M. Manning Counsel for the Plaintiff F. Shuh J. Rosenstein Counsel for the Defendant PS Le hid ulCon coe ed i] Py by oe ae ] - om Court File No. CV-1L9-00008534 an, 008535 ao ONTARIO SUPERICR COURT OF JUSTICE COMMERCIAL LIST BETWE SR: HARRY BIEBERSTEIN Plaintitt + and ~ GABRIEL KIRCRBERGER, SUSANNE SCHMIDT, NOMBN FITNESS INC., 487223 ONTARIO LIMITED, 1171852 ONTARIC LIMITED Defendant PROCEEDING § - BEFORE THE HONOURABLE MADAM JUSTICE THORBURN on February 16, 2014 at TORONTO, Ontaria AEPEARANCE + M. Manning Counsel for the Plaintiff EF, Shuh 3. Rosenstein Counsel for the Defendant. a id Pn ul ba hed tad ey Py fe ro | aa a SUPERIOR COURT OF JUSTICE e TABLE OF CONT a NT gS o wet < NE 38 Ss ~- WITNESS Examination Cross- Re- In-Chiet Examinatic ae Exam: tion a is ‘ee ee ne Seed ne ni oa oy Ad iy a be ra Py fy bed EXHIBITS EXHIBIT NUMBER PAGE NUMBER ~ ~ i eos rm ptos | ery head lave pty ee a a Sa Sy gt ae. ee ied i find ee oe ce wy ce | he a ww 1 Biebertein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding i February 10th, 2014 2- UPON COMMENCING... 3 4 THE REGISTRAR: Court is in session. Please $ be seated. ws 6 THE. COURT: Good merning. os MR. MANNING: Good morning, Your Honour. MER, SHUH: Goad moxning, Your Honour. MR ROSENSTEIN: Good morning, Your Honour. 10 TEE COURT: i wanted to ask you some things. ul First of all, I think that we were dealing oo 12 with two issues, one is whether the trial Gb must be adjourned, ané the second is whether i¢ the trial should be acjocurned. is In terms of whether the trial must he {6 adjourned I don’t think that it must be Wy adjourned because 2t don't think my Order - 1g fits within 63.01. But I'm still struggling 19 with is whether at should be adjourned in accordance wit Rule 63.0271. os 2 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding And I have some questions that I wanted to have anewered. towent through the List of orders, end there's an order Justice Mesbur ordered that the motion fer summary judgment you acheduled o an Oct fee ober il, 2911. Which motion for summary judgment was that? MR. Me ROSENSTE. aN: That was the one that was before Custice Wilton-Siegel. 16 {THE COURT + So it-didn't ge ahead for I another year? Is there? i2 MR. ROSENSTEL £ It ultimately came back 3 before == first -- I want te say that it 14 actually came back in theory before 15 Justice Hoy, and then it came back before 16 Justice Brown, who adjourned it at that \? point. Mr. Manning objected ts 18 Justice Brown hearing the matter nothing 19 turns on that except he simply adjourned x4 ‘ 20 It ultimately became adjourned to the trial. 3 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum Trial Procesding THE COURT: Was it this on October ith of? MR. ROSENSTEIN: it was on or about October a Lith. THE COURT: okay. MR. ROSENSTEIN: £=z can't remember if it was the exact date. It was ultimately adjourned. And then Justice Cumming, in an endorsement THE COURT: Right. 10 MR. ROSENSTEIN: om that you have «« VM THE COURT: * saw that, April 27th. a 12 ROSENSTEIN: In other words, it was 13 Still pending. Tt hadn't been heard at that 14 point. And then he opined thet it ought te 1s be made at the outset of trial as opposed to 16 finding seme date between the Spring of i? two-thousand ~= 18 THE COURT: Sc it's nebody's fault. Th just 19 teck over a year for thig motion te get on. 92 rt+ mean, certainly not the sarty's fault -- i 4 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding MEK. ROSENSTRIN: Ho. There's a fot of history, but I doen't think -- THE COURT: Gkay. MR. KOSENSTEIN: ~~ there's any fault, yes. THE COURT: ALL right. ALL right. and you had mentioned something, Mr. Rosenstein, about the fact: that Justice Wilten-Siegel decided that he was going to put the eri tra. on to rhe the first ia available date. 1 MR. ROSENSTEIN: Right. R TEE COURT: On December 1éth. 3 MR. ROSENSTEIN: That's his endorsement of 4 January the 30th ex Bist of 2013. THE COURT: Okay. 16 Why did he put it te the first available iF date? 18 MR. ROSENSTE = Well, if you take a look at 1g the endorsement, there was a tab 5. i don’s 20 know aié it's made its way back into there. g Biebenstein v, Kirchbenger et al Before The Honourable Madam Justice Thorburn Trial Proceeding THE COURT: Tab 5 of the -- MR. ROSENSTEIN: of that. os THE COURT: ~« big trial record? + MR. ROSENSTEIN: The big trial companion = have handed up last time -- THE COURT: Yes. MR. ROSENSTEIN: ~~ that got torn apart. THE COURT: Oh, yes, okay. Right. Endorsement of Wilson-Siegel dated January 10 30th. Yes. i MR. ROSENSTEIN: Right. 2 THE COURT: Okey. 3 MR. ROSENSTEIN: Bo if you just turn back, 14 it's best understood in conjunction with the 18 previous one. Se if you Look at tab 4 16 you'll see on November 29, which is about Vy ten days after -~ 18 THE COURT: Right. 19 MR. ROSENSTEIN: ~~ we've heard of the 20 motion, sé came before him and he said, oe 6 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding “Motion of the Plaintirt for adjournment of the trial THE COURT: Righc. ” -- an MR ROSENSTEIN: the Cross~m ion of the Defendants we heard on January 29.” TEE COURT: Right. MR OSENSTEIN: By January 20th, the Plaintiffs hadn"t actuslly brought that formal motion to adjourn, o they had asked 10 that the trial be adjourned. it TEER COURT: Why would they be bringing a iz motion to adjourn when it already hasa't 3 taken place for over a month? I'm missing i4 gomething here. 15 MR. ROSENSTEIN: - ALL z gan say is the 16 Flaintiffs had -~ V7 THE COURT: Wasn't it de facts adjourned? 18 ME. ROSENSTEIN: Well, it was adjourned 19 because the Plaintiffs had asked for ge ifs te 20 he adjourned. T had asked that hey moved 7 Bicherstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum ‘Trial Proceeding formally so that ZLx could cross move for terms of the adjournment. And Justice Wilton-Siegel agreed that they should bring a formal metion o£ adjournment as opposed to simply saying, "We don't want wn to proceed.” And the judge saying, "Okay." ~~ THE COURT: Okay, MR. ROSENSTEIN: And so that led van THE COURT: Why did he agree to adjourn? 10 MR. ROSENSTEIN: I+ There was a dispute ul between the perties as to exactly why he 2 agreed te adjourn, and ultimately = is dispute ~ There was a dispute between the 4 Bench and the Bar. oe is THE COURT: No, bul my Understanding is that 16 wou, a@ithough the Defendant Jost that motien i7 for partial summary judgement, were not 18 saying that, wey i+ am going and appeal, ELMS» 19 go this thing can't be resolved -- 20 MR. ROSENSTEIN: No. pen & Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding THE COURT; S-— dn the interim"? ROSENSTEIN: No. THE COURT: So why was it not heard? MR . ROSENSTEIN: The Plaintiff£ asked that it net not proceed, dustice Wilton 9 THE COURT: Right. 20 MR. ROSENSTEIN: -~ the #8 pointes, and etn ie iF Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Tharbumn ‘Trial Proceeding D gets out where they come from and the reasons for the decision of Justice Wilton-Siegel and the Court of Appeals. THE COURT: Okay. And I guess I'll be asking you, Mr. Manning, a4 a this the complete list of issues that would be the issues if every -~ everything were at issue in this trial? I'm saying, assuming that 0 you Gon't skied at the Court of Appeal -~ il MR. MANNING: Yes. THE COURT: Okay. {Inaudible} to my Wa endorsement. Would this be the complete 4 dist of issues that would be ~- to be on a5 canvassed at trial? i6 MR. MANNING: Well, not with respect te the 7 unjuet enrichment part, but certainly with 18 respect to the -- 19 THE COURT: ++ to the acknowledgments? 20 MR. MANNING: -~ ackno: Ledge: nt By yes. oe Ln 18 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding THE COURT: Okay. Okay, thank you. ALL right. So now this is the third adjournment that's been scught by the Plaintiff, right? Am I right? ‘Cause there's November 2012, and we don't know what reagon it was that. it was adjourned; December 20 3, because you didn't need just five days, you needed more time because all of these issues have to be arqued <= 10 MR. ROSENSTERIN: That’s right. i THE COURT: ~« on the acknowledgement? MR. ROSENSTE? : On the acknowledgement 3 issue. Well, again -- 14 THE COURT: Well, that's what I'm trying to 1s understand. Ife rf a li of the tt this list 16 of 28 issues is the complete list of issues 7 en the acknowledgements -- that's wha +t you 18 just said, Mr. Manning. Am tqt rig het he? ig MR. MANNING: These are the facts that 1 20 indicated that in my view had already been tami 19 Bieberstein v. Kirchberger et al Before ‘The Honourable Madam Justice Thorbum Trial Proceeding on established. THE COURT: Right. Buk ag q¢ understand it, — you people were before Justice Morawetz in December. MR. MANNING: Yes. THE COURT: And the point that was made before Justice Morawetz was five days is not going to be enough because I have sent this list of 28 issues to my friend and he hasn't nee 10 said that those are off the table, go fT i can no longer commit to being able to finish 12 this trial within five days. rI now need 3 much more time. 14 WR. MANNING: Yee. 15 THE COURT: So what T'm trying te understand 16 is isn't that inconsistent with coming here 17 and saying, weil, I had no idea we were ever 18 going to be dealing with these issues, 19 because T just thought that + i was going to 20 win on my epplication. Cleariy the whole ~ ~ ne 29 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding xeason that you asked fox more time, at beast if I’m understanding <- I'm just try vo go understand what went on. MR. MANNING: =z understand, Your Honour. THE COURT: So this I can understand the justice of all of this. MR. MANNING: Of course, And in fairness to the plaintiff's position, the 28 matters ” thet. r listed that's coming out ef the 10 decisions of Justice Wilton-Siegel and the i Court of Appeal were not agreed to hy my i friend as having been established. a THE. COURT: Right. i4 MR. MANNING: So the issue ef how long a is tial, if you had to establish those, and 16 where that led you ~ 7 THE COURT: Right. 18 ME. MANNING: ~- obviously, Li meant you 19 couldn't do a trial in five daya. 20 THE COURT: Right. we ai Bieberstein v. Kirchberger ct al Before The Honourable Madam Justice Thorburn Trial Proceeding MR. MANNING: Tt wasn't until the motion before you that my friend said, "Oh, hh APR concede these, but I won't concede those.” wo TAE COURT: I understand. Me es MANN IN Gs So that at that -~ at the revicus point in time it was up clear as to exactly how much time was going to be needed THE COURT: Right. 10 MR. MANNING: ~~ if we were going to take i the first group of issues and facts -~ i2 THE COURT: Right. W MR. MANNING: -~ and see where thet led with 14 E@Spect to the rest of the case, 1s THE COURT: My point is that at the point at 16 which you were before Justice Morawetz it W waa envisaged that everything was on the 18 table, and nat's why you needed the 13 additional time. 26 MER. MANNING: Yes. a 22 Bieberstein v, Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding THE COURT: So it seems to me that you're now saying, "Well, it couldn’ +5 possibly go ahead. it would be totally unjust to go ahead in view of the fact that I've got this appeal going to the Court of Apyeal of your endorsement. And x think that those Lesgues are all off the table. But it was clearly envisaged in December before Justice Morawets that many if not all ef 16 these issues were quite possibly going to he ui on the table at the trial, hence the desire 2 for = a as much ti 13 MR MANNING: Yes. a 14 THE COURT: Right? Okay. 1s 16 Okay. And I guess +I net that © did to Wy understand frem both of you: What issues do 18 you Say would be canvassed? Because what 19 i‘m trying te see is whether with or without 20 Sf unequivocal answer on those issues that I 23 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding determined we can proceed with this trial and be fair to everybody. MR. aah. ROSENSTE ans So I have some difficulty only that I'm the Defendant, and -- THE COURT: I'm not necessarily asking you to qo First. MR. BOSENSTEIN: Right. TRE COURT: I'm asking the collective here. So.-= vom 10 MR. ROSENSTEIN: So let me begin by just i seying: My submission is that in order to 2 ebtein @ judgment on the acknowledgements -~ 3 and by that I don't mean conceptually what 14 WOULd Some person have t6 show up with some 13 acknowledgements, iomean this Plaintiff to 16 get an order in respect of these 17 acknowledgements against this Mr. 18 Kirchberger. 19 20 At the very least, you have to prove the 24 Bieberstein v. Kirchberger et ai Before The Honourable Madam Justice Thorburn Trial Proceeding ree things that I took issue with -- THE. COURT: Right. MR. ROSENSTRIN ~ which, not surprisingly, his ciient took issue with it. THE COURT: Right, right. MR. ROSENSTEIN: To be perfectly candid, r haven't turned my mind as to whether there's a fourth or a fifth. i know that the Plaintiff has to prove all of the elements © 10 ef the clai a¢ can say aa I stand here fi there may not be more than those three. 12 TRE COURT: Well, shouldn’ & you be locking 13 at those list of 28 issues that your friend i4 says is the comprehensive list of issues and i5 let us know? I mean, Todon‘t know how 16 aitficult that would he, i mean, you've got i? the 28 z Sues, you've had them for a while, 18 and 19 UR. ROSENSTEIN: I'm happy to de it. Again, 20 my difficuity with the list always was I 25 Biebersteinv. Kirchberger et al Before The Honourable Madam Justice Thorbum Trial Proceeding didn't see them as being an effort to say here's an element. of the claim, Ilva now proven it with this issue. The issues were never listed in that fashion, they were listed in the Justice Wilton~Siegel said acts, who acts as established without trying Lo correspond that to a particular element of the oc lai ams. ol 10 So then it leaves me to say, well, when you il say that acts has been established, what you 2 really mean is that the factual basis for 3 this claim has been established -- not id necessarily an exercise £I wanted to co for i$ my friend, i sort of would rather leave him 16 to do that and to explain ta you what issues oo 7 are -~ remain open other than those three, is and then perhaps sey i L have some submissions 19 in respect with the acknowledgements. 20 THE COURT: But I think to be fairy te your oo 26 Bieborstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding friend, i think he's done that. i§ think he sald that I've got all 28 here. These .are: the list. And he says that when he brought this list and sent it over to you, yor didn't agree with anything. So then he goes aver to Justice Morawete and says, icok, everything's et issue here; I'm going te need lots more time. And now you're saying, well, actually, many of#¢ th h 3086 I'm nob really id taking issue with. W MR. ROSENSTEIN: Well, +r sould just i2 certainiy. id THE COURT: So he has done his work, a6 whet i4 about you? i ME. ROSENSTEIN: Well, i*‘m happy to go 16 through that list of 28 and List which iT gssues in the 26 I'm not taking issue with. 18 I think it's net as fair to say to the 19 Defendant, weil, you tell me in advance which of the elements of the claim you think Sn 27 Bieberstein vy, Kirchberger ¢t al Before The Honourable Maram Justice Thorburn Trial Proceeding a are now satisfied and which remain open for trial. THE COURT: Weil, Bos But he has listed ail of the things that he says will be at issue in this trial. MR. ROSENSTEIN: Right. And I'm happy ~~ i the answer i9 simple. i‘m happy to go through the 28 -- we THE COURT: Okay. 10 MR. ROSENSTEIN: ~- and give a thumbs up or i thumbs down te every single one of the 28. 2 THE COURT: Okay. All right, So -~ 13 MR. ROSENSTSIN: And then quest to finish the 14 thought in answer te your question ~ wo 15 THE COURT: Bight. 16 MR. ROSENSTEIN: In respect of the -- what I ~ Wy call the equitable claims, which is 18 everything but the acknowledgement claims, 19 A, I don*t think any of those things have = 20 been established, period. And more 28 Bichersiein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding = specifically, Tdon't think thet anything in the decision of the motion for summary judgment Judge or the Court of Appeal had anything to say abeut those claims. TRE COURT: But you said to me on Friday, I believe, that these issues are entirely me severable ~~ MR. ROSENSTEIN: Right. THE. COURT: -- from the issue of the io acknowledgement il MR. ROSENSTEIN: Yes. THE COURT: And I'd like you to expand on i that. I need to anderstand that. Tim not 4 sure I entirely understand. Because what 1s Mr. Manning has said is a finding on the 16 acknowledgement is a prerequisite. That. 7 doesn't necessarily mean it isn't severable. 18 MR. ROSENS' *: A necessary but. not 19 sufficient condition. 2b THE COURT: Yes, pee 29 Bieberstein v, Kirchberger et al Belore The Honourable Madam Justice Thorburn Trial Proceeding ME. ROSENSTEIN: You know, no, IT understand him, and I guess 44 can -- I'm happy to go through the pleading again. Bot as an overarching level, she el ment -- the claims that are the -~ the equitable claims are threefold: There's a fraud claim, there's a conversion claim, and there's an unjust enrichment aS. THE COURT: I understand. 10 MR. ROSENSTEIN: And so the elements of 1] those claims being what they are, the facts 12 require -- 13 THE COURT: A derivative from the money that 14 was done pursuant to the assignment and is acknowledgement, these very same eight 16 acknowledgements? iF MR. ROSENSTEIN: Well -- we TRE COURT: "Cause you seem to he suggesting 15 it was something different, and that's what wan te understand. in a 30 Bieherstein v. Kirchberger et al Before The Hoaourable Madam Justice Thorburn ‘Trial Proceeding MR. ROSENSTRIN: Right. So again, this is where the Blainciff -- my friend -~ we'll ieave the Plaintiffs -- my friend and I juar fundamentally disagree conceptually. 5 There's no real dispute that there was a Batt. Actual money was borrowed and changed hands. Cash that had belenged to ~- [I'm going to pick on the Berliner Bank, hecause you know there's a lor of banks. $0 there's 16 no question that the Berliner Bank wrote a i cheque or did a wire te a company called 12 Imea. There was a loan. Money that had 13 belonged to Imca now belonged to -- pardon 14 me. Money that belonged te Berliner Bank 18 now belong to Imea, and Imca was now a 16 debtor to the bank. We 1s There's no question that that transa 200) 9 happened. Separate from that transaction, 20 though in a sense related, the Berliner Bank . 3 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum Trial Proceeding went to Gabriel