Preview
Filing # 73177579 E-Filed 06/06/2018 02:51:51 PM
IN THE CIRCUIT COURT OF THE TWENTI ETH JUDICIAL
CIRCUIT IN AND FOR
CHARLOTTE COUNTY. FLORIDA CiViL ACTION
HARRY BIEBERSTEIN,
laintff,
v, Case No. 17-917CA
GABRIEL KIRCHBERGER, CAROL
DEVILLE, SOUTHERN SHORE
ENTERPRISES, LLC, a Florida limited
liability company, and MOONSTONE
HOLDINGS, LLC. a Nevads limited
liability company,
Defendants
vn cts
NOTICE. Be Ee eT Pat IV) TO ROSENSTEIN AFFIDAVIT IN SUPPORT OF
3 MOTION TO DISMISS
COMES NOW CAROL DEVILLE, Defendant. by and throug
h her undersigned attorney and
Provides Noticeof Filing Exhibit H (Part IV) to the Affida
vit of JONATHAN ROSENSTEIN in support
of Defendant DEVILLE'S Motion to Dismiss.
HEREBY CERTIFY that a true and correct copy of the forego
ing has been furnished court
©-portal service to MARKA. SLACK, ESQ. msi:fack@wwmrala
w.com
im 90465 Strada Stell Court, Suite
400, Naples, FL 34109 and to ROBERTW. SEGUR, ESQ. Legal@seguriaw
net 1460 §. McCall
Road, Suite 2E. Englewood, FL. 34223 this 6” day of June, 2018
AL, Lib Uf (
DAVID K. OAKS, ESQ.
ef
407 East Marion Avenue, Suite 101
Punta Gorda, Fl. 33950
(941) 639-7627
Florida Bar No. 0307817
Attorney for Defendant DEVILLE
morte
17t
Bieberstein
v. Kirchberger ct af
Before The Honourable Madam Justice Thorbura
Trial Proceeding
MR. ROSENSTEIN: Correct.
THE COURT: And according to Mr, Manning,
the wording in the acknowledgement is
“situate anywhere in the world" or whatever
at ag
MR. ROSENSTHIN: Right. And we disagree.
But I just don't think that thatts important
an the sense that he's seeking a relief
here. Whatever relief he obtains here
io doesn't help him or hurt him @lsewhere,
i except to the extent he thinks it helps or
2 hurts him somewhere else.
13 THE COURT: We'll accept that he's going to
1g have to argue that the -- that it's
a
is enforceable -- that the acknowledgement
16 allows him.
i
we 1B think what he's going te try te do is get
19 a jeg off somewhere else, and say, well,
20 ieok, there's a finding that this thing is
eee
M72
Bieberstein v, Kirchberger ct al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
nforcesable anywhere.
MR. ROSENSTRIN: Right. And that ~- and to
3 the extent that he wants the leverage of
finding of this CGUET slisewhere, that ag
aomething I am going to take issue ~~ an
additional piece -~ because that's not
related te his enforcement here, which was,
again, what I thought the list we were going
to go through wae,
16 But, you kno
i THE COURT: All right.
2 MR. ROSENSTEIN: i don't Know what mote to
13 gay about that.
14 THE COURT : zx don't Lhink there is any more
is ta say. Okay. That's fi e
16 And, zt mean, frankly, It, mot sure that
17 there is anything that needs koa be proven,
18 it's the document says what the document
18 Says. imean, unless there ig some sort of
20 eral concessicn or something else. i'm not
i73
Bieber
v. Kirchbe
ste rger
in et al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
yeally sure that's a big issue in any event.
80 Was there anything elise that you Say, Mr.
Manning, that goes beyond the scope of those
3 issues that Mr. Rosenstein has raised?
MR. MANNING: No. I don't agree that these
are confined te the 33 issues. ri don't agree
that they -- these are in accordance with
the concessions that you have listed in i6a
through to H.
10 THE Ct ERT: This is your opportunity to give
i me your submissions, not just to say I don't
os
2 agree with anything.
13
if But the point that i am Saying to you, sir,
Is is that Mr. Resenstein == I think -- has
16 been fair in saying, this court
foe is deciding
7 about judgments that are enforceable in
18 Ontario, and so that issue really has
9 nething te de with the enforcement of any
20 Judgement in Ontario, and insofar as you
san
14
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
Trial Proceeding
would like there being a statement «- which
for the purpose of any other court is obiter
~« that is an alive issue, Whether or not
the court anywhere else would care what
anybody in this court said is a whole other
matter anyway. But assuming that they did,
that is something that he's not conceding,
and in any event isn't really relevant te
what you're seeking in Ontario.
10
Ww 80 I think what we need to be concerned
12 about is: xe there issues that would
2 impece you from getting any relief that this
4 sourk could possibly offer you, and he says
15 thet there are only those 33 issues insofar
16 as the acknowledgements are concerned.
Ve ME. MANNING: Ho. He says on the one hand
18 there is only the 3 issues, Sut there's the
19 other issue raised i'm net agreeing.
20 THE COURT: Well, that's not ansther issue
land
wd
sn
on U5
Bieberstein v, Kirchberger et al
Before The Honourable Madam Justice Thorburn.
‘Trial Proceeding
raised, sir, because it has nothing to do
with this jurisdiction, That's what he's
3 trying to say.
WR. MANNING: All right. Well -+
THE COURT: It's entirely obiter if anybody
did opine on that issue.
MAR. MANNING: Well, then hig ~- my point
number 3 in the chart dealing with the
assumption of personal liability doesn’ .e.
10 agree with thar.
u THE COURT: Sorry, i (inaudibie.)
g “UR. MANNING: And yet you found that he
i conceded that in paragraph 18 of your
14 endorsement.
-
15 THE COURT: Sorry, it's at point 3?
number
16 MR. MANNING: Point number 3.
i THE COURT: Wasn't that the (inaudible)
18 about big bank Singular and bank pearl?
19 MR. ROSENSTEIN: Yes, and I had already
20 THE COURT: Okay.
renin
176
Bivberstein v, Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
bane
MR, ROSENSTEIN: ~~ gonceded that point --~
MR. MANNING: if I gould w
oR. ROSENSTEIN: ~~ in point number 1.
THE COURT: Sut that's the same issue, Mr.
Manning.
MR. MANNING: Well, I den*t read it as such.
TRE COURT: Your pleading talks about the
Hypo Bank. Your statement here talks about
banks with an "S", banks plural. He's ai
10 saying he doesn't agree with the statement
i that banks -- plural. it's about the Hype
Bank.
13 MR. MANNING: All right.
14 THE COURT: That's the only issue.
is BR. MANNING: No, it isn't. With the
16 greatest of respect to you and my friend, if
vv you read paragraph 3 it talks about more
1s than the respective banks, it talks about.
19 more than the assignment.
20 THE COURT: I “
eres
wr
Bieberstein v. Kirchberger et a]
Before The Honourable Madam Justice Thorburn
Trial Proceeding
MR. MANNING: it talks about --
THE COURT: Okay.
m
MR. MANNING: w= Che notarized debt
acknowledgement take the form of unilateral
covenants.
80 is he agreeing with that, or is te not?
THE COURT: Are you taking issue with
anything other than banks Singular and
1g plural?
i MR. ROSENSTEIN: Your Honour, T would love
2 te agrea with you. But I think that there's
G a point in which I made the concessions I've
14 Gade, ['ve explained te this court and my
is Zriend. i believe there are only 3 issues
16 which stand in between his client end a
17 dudgment of this court in the matter that
18 he's asked for,
19
20 Going through these with a fine-toothed comb
ern
178
Bicberstein v, Kirchberwer et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
and figuring out whith word makes sense and
which doesn't --
THE COURT: Tounderstand,
MR. ROSENS'?: ~~ it doesn't make sense to
me.
THE COURT: And ft agree with You that at
deean't make sense. Tt think what Mr.
Manning is Suggesting that there are a whole
pile of issues other than the 3 that you've
10 articulated. And I think the short answer
i to thet 2 3s if you raise anything other than
12 these 3 issues then you're going to be
13 estopped because you've already agread ~~
4 MR. ROSENSTEIN: i‘ve agreed, ive
15 acknowledged that.
16 THE COURT: So if he does, then you stand up
i and a.--
18 MR. ROSENSTEIN: That's all.
9 THE COURT: he said six ways to Sunday
20 before the trial even atearted he wasn't
ul
179
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
going to be taking issue, se he ia now
estopped from taising them.
MR. MANNING: It makes it extremely
iv difficult to put a case in. Iodust a~
THE COURT: How can you possibly arque with
af Mc, Rosenstein -- and T an going to ask
him to angwer this question -- agrees that
he would be estepped from raising anything
other than those 3 iesues in terms of Mr,
10 Bieberstein's entitlement to those
acknowledcements -- the moneys under those
12 acknowledgements,
3 MR. MANNING: The diffi ¥ ies, Your
14 Honour, in the fack that he's framed these
is 33
@8 broad issues, and I'm desling with
16 facts that have to be proven at trial.
i? That's the difficulty,
ig THE COURT: Well, the facts that pertain to
i9 those 3 issues. You've brought « claim,
20 there are 3 issues there, I think they are 3
=
~
omen
180
Bieberstein
v, Kirchberger et al
Before The Honourable Madam Justice Thorturn
Trial Proceeding
fairly discreet issues, and I guess te
z m Rot
qeing to spend the next -~ you know, the
retiwin being three days going through
everything with a fine-toothed comp, So f
think we've gone through thar.
But Mr. Rosenstein, 1 want to be sure, Siz,
that you agree with that. Qe you undertake,
air, that these are the only 3 issues, and
10 that you agree you
ther would be estopped
1 from raising anything ether than “hase 3
if assues in terms of Mr. Bisberstein's
13 entitlement pursuant to the
14 acknowledgements?
Ld
is MR. ROSENSTEIN: Mrir. Sleberstein, as 1
16 understand it -< and I’m juat repeating it
i
because we had this calloguy.
18 Mr. Hleberstein, as It understand it, is
i9 seeking the order that's set out in
20 paragraph 30 of Justice #ilton-Siegel's
ny
ed
erent
18L
Bieberstein
v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
decision in that first sentence where it
says "the Plaintiff seeks an order.”
fs
TRE COURT: i'm sorry, paragraph 15?
MR. ROSENSTEIN: 50, oO.
THE COURT: Okay.
MR. ROSENSTEIN: And since i believe the
amount of liability assumed in the
acknowledgement is the actual outstanding
balance, at? 8 What
th at, IT think that the
wei 10 Plaintiff is seeking. I think het 8 seeking
ii an order - and T'm just going to tead it so
2 at's clear, and then I'll give you my
13 undertaking.
14
15 I believe that what the Plaintiff is seeking
16 in the acknowledgement portion of this
action is an order ef this court that he's
~ 18 entitled to enforce against the assets of
9 Kirchberger located in Ontario in the manner
and te the extent es if obtained a judgement
ee
182
Biebersteiny, Kirchb
Before The Honour ergeet ral
able Madam Justice
Thorbu rn
Triat
ng
SG4inst Sirchher ger for the Ppayme Ht of maney
in the amount of the lisbility assumed an
the ackn owledgemen
t which T under, Stand to be
the soup. Standing balance of the underlying
loans,
And if that's what the Pl aintife is seeking,
ther i you have my undertaking and my client yg
undertaking that ¢hte € only issues that stand
10
between the order Sought by the Plaint 4Ef
i
@nd 4 Judgement ge anting that order are the
2
3 issues: Nurber one, whether or ast
G
the ea
428ignment from the Hypo Bank 2n the one
4 SaSa or th we Berlin Hypo Bank in the other
45
Case, is legally effected ve in respect of Mr.
16
Bleberstein;
in; number two, if the banks who
17 purported to make those agsi giuments actually
18 held the acknowledgements prior to their
19 Purported assignment; and number three, the
actual balance of the loans thet are
id
a
Tad
Biebersteiny. Kirchberger et a!
Befo
The Hono
re urabl ie Madam Justice Thorburn
Trial Proceeding
guarantee by virtue of the aas3ignmente.
That's my undertaking.
MR. MANNING: Your Honour asked my friend a
very simple question: Are you going to
contest anything other than the 3 issues?
And you didn't get a ateaight answer. You
aicn't gat a yes, you get a no. You got a
reference back into the Statement of Claim
which has to be locked at with kespect to
oe 10 what Justice Wilten-Siegel did and what he
i ordered. He hasn't answered the gbestion.
He's made it conditional.
iF TRE COURT: Okay.
i4 MR. MANNING: if that's what Mr. Bieberstein
15 is claiming, then, yes, you have my
16
ae undertaking. if that's not what he's
i? Claiming, and what if halfway during the
1g trial something happens ~~ it elways happens
19 at triala, thar You want to amend the
20 pleading.
=mech
184
Bieberstein v. Kirchberger et af
Before The Honourable Madam Justice Thorbum
Trial Proceeding
THE COURT: Oh, well Lf youtre --
MR MANNING: Dees that mean ++
THE COURT: Well, bat if you're going te
change the rules of the game hal fway theough
the game --
ME. MANNING: Re,
PRE COURT: -- well you can hardly blame him
from saying, well, maybe ria change my
position.
16 That this --
i ER. MANNING: Well, maybe it comes up --
12 THE COURT: ~~ dependent on you coming in5
3 with the claim you we all thought you were
i4 Gaming in with Surely.
is MR. MANNING: And a defense we all thought
i6 he was making to the claim and 80 on,
it
THE COURT: That's right.
18 MR. MANNING: Sut things happen at trial.
19 Either he's going Kew
to give his undertaking,
26 or he isn't,
rennet
185
Bieberstein
¥, Kirchherger et al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
HE COURT? Actually, no, sir. They're not
going to happen at trial because you're
vestxicted to the four corners of your
Pleading -- as we all know «= and s0 you are
going to bring in arguments that are within
nt
the four earners of your pleading, and if
they're not you're not going to raise them.
and he's going to be confined to the iasues
that I'm going to let him raise, which is
io going to he restricted to those three.
il So that's how ~~ that's why we're going
12 through this exercise, because i=t am not
i3 going to be heering arguments of, oh, well,
14 annoy, the whole pleading has changed and
~
now we're into something else because we're
16 mot.
iy MR. MANNING: No. Except ITt ean't knew it.
18 THE COURT: No, that's why you filed a
19 Pleading sir.
20 WR. MANNING: That*s right.
omnes
186
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
Trial Proceeding
THE COURT: Ang you are not going te -- I'm
Making this very, very clear: We do nek go
beyond the four corners of ouy pleadings.
That's why we file Pleading, and that's why
3 they are provided well in advance. You had
Many Opportunity to amend your pleadings.
We are not going through thet now. in
particular, we had this morning te make
gure. And T specifically asked you to make
ig Sure there was nothing more. +f will
80 net
il be hearing anything outside the scope of
12 these pleadings -- just sa we're clear.
R MR. MANNING: T understand that. Tive been
i4 practicing law for 46 years, and believe me,
15 qt understand that with great respect, Your
16 Honour, I’m Just Supposing an example of
Vy what hapoens at trial with respect co
18 factual circumstances and people getting op
19 and asking for leave te amend.
20 Tam net saying f ax going to de that, It am
rennin i
187
Bieber v. Kirchb
sterget
einet al
on Before The Honourable Madam Justice Thorburn
‘Trial Proceeding,
not forecasting it, but I am Saying that Mr,
Kirchberger and his lawyer have te give an
undertaking, and I haven't heard a clear
‘i
unconditional yes.
TRE COURT: You will get one «+
MR. MANNING: Thank you.
TRE COURT: ~~ before we proceed
MR. MANNING: Thank you.
THE ee rr
o OURT : Bue also want to make it very
10 clear that while I do understand that
11 sometimes things happen that one could never
2 predict, if in fact there is seme kind af
13 request for amending because there was
ig something nobody could ever have
HE anticipated, that your friend is going to be
16 qiven the opportunity to revisit some of the
i7 concessions that he has made, if in. fact. you
if do that.
19 So ft just want te be very clear.
vm
20 MER. MANNING: +I
understand.
one nee sits
cas
Bieberstein v. Kirchberger ct al
Before The Honourable Madam Justice Thorburn
Trial Proceeding
THE COURT: It ts a highly unusual
si uation, as you know.
MR. MANN 2] NG? Thais whole case has been an
unisua ] situation
TRE COURT: I'm beginning to understand
that.
But Mr. Rosenstein, I am guing to aak you,
Siz, your friend is entitled te an
10 uhequivocal answer on that, and I dontt
i want, you Know -~ on the pleading that he
12 has (lled, are you in agreement that the 3
W isgues that you take with Mr. Bleberstein's
4 entitlement as per the pleading that is
is framed and as has been ci fumscribed in that
16 one peregraph in Justice Wilton-Siegel's
7 order, and just that we're clear,
ik paragraph -
19 MR. MANNING: ~« 49 and $9, trr believe.
20 THE COURT: ~~ 43 and -- yes, 43 and $0 --
terrein a
189
Bieberstein v. Kirchberger ct al
Before ‘The Honourable Madam Justice Therburn
‘Tnal Proceeding
WR. ROSENSTETN: Well, Tt want ta submit --
TRE COURT: ~~ that these are the only 3
jasues?
MR. ROSENSTEIN: Your Bonour, =a want to
eclecumseribe it even further, and that was
why I read the first sentence of that
- paragraph.
THE URE: Sorry, which paragraph? ag?
MR. ROSENSTEIN: Paragraph $0 that was ~
10 THE COURT: That's what he said,
i MR. ROSENSTEIN: Right.
2 THE COURT: As circumseribed --
5 MR ROSENS'TEIN: So --
a
4 THE COURT: ~~ by paragraph -- he’s just
“
15 said that.
16 MR. ROSENSTEIN: By the first sentence in
7 paragraph 50 --
18 THE COURT: Right.
19 MR. ROSENSTEIN: Which is that that line --
20 that one line that i read, Yor x Honour.
199
Bicherstein v. Kirchberger et al
Before The Honourable Madam Justice Thorbum
‘Trial Proceeding
If --
THE COURT: “am of the opinion that in
agreement to this effect -~"
MR. ROSENSTEIN: No. “the Piaintifts
therefore seeks" or words to that effect.
THE. COURT: Right, "seeks an order of the
gourk ae
ME. ROSENSTEIN: Right.
SRE COURT: You that he's entitied to
Ww enforce Che aaset.
i MR. ROSENSTEIN: Right.
12 THE COURT: Yes.
13 MR. ROSENSTEIN: and so the reason that
l4 made the caveat was the pleading as it
15 @ppears lists 1 A, B, through ¢. Se as leng
id
16 as the acknowledgement claim cons # of the
iy first paragraph, paragraph 50 --
18 THE COURT: Bight.
19 MR. ROSENSTEIN: ~~ then I am unequivocally
4;al giving my undertaking.
19h
in
Bieberstein v. Kirchberger et al
Before The Honourable Madam Justice Thorburn
ym Trial Proceeding
eee THE COURT: Okay. Right, ckay.
MR, ROSENSTEIN: That. waa what f thought T
was doing.
THE COURT: Okay.
MR. ROSENSTEIN: But Lf ztx wasn't clear, tim
doing it again,
MR. ROSENSTEIN: No, that's fine. ALL
right.
Did you want a moment to leak at that, Mr.
10 Manning?
i MR. MANNING: to look at what, Your Honour?
12 THE coi He's just talked about paragraph
13 So, Bix. What he’s saying is that yes, he
14 agrees unequivocally that the only 3 issues
pat
1s that he can raise are the 3 issues that ne
16 Yaised before me in dealing with my
oe
v endorsement, as long as we understand that
on is it's the eading as Circumscribed in that
19 first sentence of paragraph 56.
20
192
Ricberstein v, Kirchberger ct al
Before The Honourable Madam Justice Thorburn
‘Trial Proceeding
I think that's what you just
Preview
Filing # 73177579 E-Filed 06/06/2018 02:51:51 PM IN THE CIRCUIT COURT OF THE TWENTI ETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY. FLORIDA CiViL ACTION HARRY BIEBERSTEIN, laintff, v, Case No. 17-917CA GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORE ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC. a Nevads limited liability company, Defendants vn cts NOTICE. Be Ee eT Pat IV) TO ROSENSTEIN AFFIDAVIT IN SUPPORT OF 3 MOTION TO DISMISS COMES NOW CAROL DEVILLE, Defendant. by and throug h her undersigned attorney and Provides Noticeof Filing Exhibit H (Part IV) to the Affida vit of JONATHAN ROSENSTEIN in support of Defendant DEVILLE'S Motion to Dismiss. HEREBY CERTIFY that a true and correct copy of the forego ing has been furnished court ©-portal service to MARKA. SLACK, ESQ. msi:fack@wwmrala w.com im 90465 Strada Stell Court, Suite 400, Naples, FL 34109 and to ROBERTW. SEGUR, ESQ. Legal@seguriaw net 1460 §. McCall Road, Suite 2E. Englewood, FL. 34223 this 6” day of June, 2018 AL, Lib Uf ( DAVID K. OAKS, ESQ. ef 407 East Marion Avenue, Suite 101 Punta Gorda, Fl. 33950 (941) 639-7627 Florida Bar No. 0307817 Attorney for Defendant DEVILLE morte 17t Bieberstein v. Kirchberger ct af Before The Honourable Madam Justice Thorbura Trial Proceeding MR. ROSENSTEIN: Correct. THE COURT: And according to Mr, Manning, the wording in the acknowledgement is “situate anywhere in the world" or whatever at ag MR. ROSENSTHIN: Right. And we disagree. But I just don't think that thatts important an the sense that he's seeking a relief here. Whatever relief he obtains here io doesn't help him or hurt him @lsewhere, i except to the extent he thinks it helps or 2 hurts him somewhere else. 13 THE COURT: We'll accept that he's going to 1g have to argue that the -- that it's a is enforceable -- that the acknowledgement 16 allows him. i we 1B think what he's going te try te do is get 19 a jeg off somewhere else, and say, well, 20 ieok, there's a finding that this thing is eee M72 Bieberstein v, Kirchberger ct al Before The Honourable Madam Justice Thorburn Trial Proceeding nforcesable anywhere. MR. ROSENSTRIN: Right. And that ~- and to 3 the extent that he wants the leverage of finding of this CGUET slisewhere, that ag aomething I am going to take issue ~~ an additional piece -~ because that's not related te his enforcement here, which was, again, what I thought the list we were going to go through wae, 16 But, you kno i THE COURT: All right. 2 MR. ROSENSTEIN: i don't Know what mote to 13 gay about that. 14 THE COURT : zx don't Lhink there is any more is ta say. Okay. That's fi e 16 And, zt mean, frankly, It, mot sure that 17 there is anything that needs koa be proven, 18 it's the document says what the document 18 Says. imean, unless there ig some sort of 20 eral concessicn or something else. i'm not i73 Bieber v. Kirchbe ste rger in et al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding yeally sure that's a big issue in any event. 80 Was there anything elise that you Say, Mr. Manning, that goes beyond the scope of those 3 issues that Mr. Rosenstein has raised? MR. MANNING: No. I don't agree that these are confined te the 33 issues. ri don't agree that they -- these are in accordance with the concessions that you have listed in i6a through to H. 10 THE Ct ERT: This is your opportunity to give i me your submissions, not just to say I don't os 2 agree with anything. 13 if But the point that i am Saying to you, sir, Is is that Mr. Resenstein == I think -- has 16 been fair in saying, this court foe is deciding 7 about judgments that are enforceable in 18 Ontario, and so that issue really has 9 nething te de with the enforcement of any 20 Judgement in Ontario, and insofar as you san 14 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum Trial Proceeding would like there being a statement «- which for the purpose of any other court is obiter ~« that is an alive issue, Whether or not the court anywhere else would care what anybody in this court said is a whole other matter anyway. But assuming that they did, that is something that he's not conceding, and in any event isn't really relevant te what you're seeking in Ontario. 10 Ww 80 I think what we need to be concerned 12 about is: xe there issues that would 2 impece you from getting any relief that this 4 sourk could possibly offer you, and he says 15 thet there are only those 33 issues insofar 16 as the acknowledgements are concerned. Ve ME. MANNING: Ho. He says on the one hand 18 there is only the 3 issues, Sut there's the 19 other issue raised i'm net agreeing. 20 THE COURT: Well, that's not ansther issue land wd sn on U5 Bieberstein v, Kirchberger et al Before The Honourable Madam Justice Thorburn. ‘Trial Proceeding raised, sir, because it has nothing to do with this jurisdiction, That's what he's 3 trying to say. WR. MANNING: All right. Well -+ THE COURT: It's entirely obiter if anybody did opine on that issue. MAR. MANNING: Well, then hig ~- my point number 3 in the chart dealing with the assumption of personal liability doesn’ .e. 10 agree with thar. u THE COURT: Sorry, i (inaudibie.) g “UR. MANNING: And yet you found that he i conceded that in paragraph 18 of your 14 endorsement. - 15 THE COURT: Sorry, it's at point 3? number 16 MR. MANNING: Point number 3. i THE COURT: Wasn't that the (inaudible) 18 about big bank Singular and bank pearl? 19 MR. ROSENSTEIN: Yes, and I had already 20 THE COURT: Okay. renin 176 Bivberstein v, Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding bane MR, ROSENSTEIN: ~~ gonceded that point --~ MR. MANNING: if I gould w oR. ROSENSTEIN: ~~ in point number 1. THE COURT: Sut that's the same issue, Mr. Manning. MR. MANNING: Well, I den*t read it as such. TRE COURT: Your pleading talks about the Hypo Bank. Your statement here talks about banks with an "S", banks plural. He's ai 10 saying he doesn't agree with the statement i that banks -- plural. it's about the Hype Bank. 13 MR. MANNING: All right. 14 THE COURT: That's the only issue. is BR. MANNING: No, it isn't. With the 16 greatest of respect to you and my friend, if vv you read paragraph 3 it talks about more 1s than the respective banks, it talks about. 19 more than the assignment. 20 THE COURT: I “ eres wr Bieberstein v. Kirchberger et a] Before The Honourable Madam Justice Thorburn Trial Proceeding MR. MANNING: it talks about -- THE COURT: Okay. m MR. MANNING: w= Che notarized debt acknowledgement take the form of unilateral covenants. 80 is he agreeing with that, or is te not? THE COURT: Are you taking issue with anything other than banks Singular and 1g plural? i MR. ROSENSTEIN: Your Honour, T would love 2 te agrea with you. But I think that there's G a point in which I made the concessions I've 14 Gade, ['ve explained te this court and my is Zriend. i believe there are only 3 issues 16 which stand in between his client end a 17 dudgment of this court in the matter that 18 he's asked for, 19 20 Going through these with a fine-toothed comb ern 178 Bicberstein v, Kirchberwer et al Before The Honourable Madam Justice Thorburn Trial Proceeding and figuring out whith word makes sense and which doesn't -- THE COURT: Tounderstand, MR. ROSENS'?: ~~ it doesn't make sense to me. THE COURT: And ft agree with You that at deean't make sense. Tt think what Mr. Manning is Suggesting that there are a whole pile of issues other than the 3 that you've 10 articulated. And I think the short answer i to thet 2 3s if you raise anything other than 12 these 3 issues then you're going to be 13 estopped because you've already agread ~~ 4 MR. ROSENSTEIN: i‘ve agreed, ive 15 acknowledged that. 16 THE COURT: So if he does, then you stand up i and a.-- 18 MR. ROSENSTEIN: That's all. 9 THE COURT: he said six ways to Sunday 20 before the trial even atearted he wasn't ul 179 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding going to be taking issue, se he ia now estopped from taising them. MR. MANNING: It makes it extremely iv difficult to put a case in. Iodust a~ THE COURT: How can you possibly arque with af Mc, Rosenstein -- and T an going to ask him to angwer this question -- agrees that he would be estepped from raising anything other than those 3 iesues in terms of Mr, 10 Bieberstein's entitlement to those acknowledcements -- the moneys under those 12 acknowledgements, 3 MR. MANNING: The diffi ¥ ies, Your 14 Honour, in the fack that he's framed these is 33 @8 broad issues, and I'm desling with 16 facts that have to be proven at trial. i? That's the difficulty, ig THE COURT: Well, the facts that pertain to i9 those 3 issues. You've brought « claim, 20 there are 3 issues there, I think they are 3 = ~ omen 180 Bieberstein v, Kirchberger et al Before The Honourable Madam Justice Thorturn Trial Proceeding fairly discreet issues, and I guess te z m Rot qeing to spend the next -~ you know, the retiwin being three days going through everything with a fine-toothed comp, So f think we've gone through thar. But Mr. Rosenstein, 1 want to be sure, Siz, that you agree with that. Qe you undertake, air, that these are the only 3 issues, and 10 that you agree you ther would be estopped 1 from raising anything ether than “hase 3 if assues in terms of Mr. Bisberstein's 13 entitlement pursuant to the 14 acknowledgements? Ld is MR. ROSENSTEIN: Mrir. Sleberstein, as 1 16 understand it -< and I’m juat repeating it i because we had this calloguy. 18 Mr. Hleberstein, as It understand it, is i9 seeking the order that's set out in 20 paragraph 30 of Justice #ilton-Siegel's ny ed erent 18L Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn Trial Proceeding decision in that first sentence where it says "the Plaintiff seeks an order.” fs TRE COURT: i'm sorry, paragraph 15? MR. ROSENSTEIN: 50, oO. THE COURT: Okay. MR. ROSENSTEIN: And since i believe the amount of liability assumed in the acknowledgement is the actual outstanding balance, at? 8 What th at, IT think that the wei 10 Plaintiff is seeking. I think het 8 seeking ii an order - and T'm just going to tead it so 2 at's clear, and then I'll give you my 13 undertaking. 14 15 I believe that what the Plaintiff is seeking 16 in the acknowledgement portion of this action is an order ef this court that he's ~ 18 entitled to enforce against the assets of 9 Kirchberger located in Ontario in the manner and te the extent es if obtained a judgement ee 182 Biebersteiny, Kirchb Before The Honour ergeet ral able Madam Justice Thorbu rn Triat ng SG4inst Sirchher ger for the Ppayme Ht of maney in the amount of the lisbility assumed an the ackn owledgemen t which T under, Stand to be the soup. Standing balance of the underlying loans, And if that's what the Pl aintife is seeking, ther i you have my undertaking and my client yg undertaking that ¢hte € only issues that stand 10 between the order Sought by the Plaint 4Ef i @nd 4 Judgement ge anting that order are the 2 3 issues: Nurber one, whether or ast G the ea 428ignment from the Hypo Bank 2n the one 4 SaSa or th we Berlin Hypo Bank in the other 45 Case, is legally effected ve in respect of Mr. 16 Bleberstein; in; number two, if the banks who 17 purported to make those agsi giuments actually 18 held the acknowledgements prior to their 19 Purported assignment; and number three, the actual balance of the loans thet are id a Tad Biebersteiny. Kirchberger et a! Befo The Hono re urabl ie Madam Justice Thorburn Trial Proceeding guarantee by virtue of the aas3ignmente. That's my undertaking. MR. MANNING: Your Honour asked my friend a very simple question: Are you going to contest anything other than the 3 issues? And you didn't get a ateaight answer. You aicn't gat a yes, you get a no. You got a reference back into the Statement of Claim which has to be locked at with kespect to oe 10 what Justice Wilten-Siegel did and what he i ordered. He hasn't answered the gbestion. He's made it conditional. iF TRE COURT: Okay. i4 MR. MANNING: if that's what Mr. Bieberstein 15 is claiming, then, yes, you have my 16 ae undertaking. if that's not what he's i? Claiming, and what if halfway during the 1g trial something happens ~~ it elways happens 19 at triala, thar You want to amend the 20 pleading. =mech 184 Bieberstein v. Kirchberger et af Before The Honourable Madam Justice Thorbum Trial Proceeding THE COURT: Oh, well Lf youtre -- MR MANNING: Dees that mean ++ THE COURT: Well, bat if you're going te change the rules of the game hal fway theough the game -- ME. MANNING: Re, PRE COURT: -- well you can hardly blame him from saying, well, maybe ria change my position. 16 That this -- i ER. MANNING: Well, maybe it comes up -- 12 THE COURT: ~~ dependent on you coming in5 3 with the claim you we all thought you were i4 Gaming in with Surely. is MR. MANNING: And a defense we all thought i6 he was making to the claim and 80 on, it THE COURT: That's right. 18 MR. MANNING: Sut things happen at trial. 19 Either he's going Kew to give his undertaking, 26 or he isn't, rennet 185 Bieberstein ¥, Kirchherger et al Before The Honourable Madam Justice Thorburn Trial Proceeding HE COURT? Actually, no, sir. They're not going to happen at trial because you're vestxicted to the four corners of your Pleading -- as we all know «= and s0 you are going to bring in arguments that are within nt the four earners of your pleading, and if they're not you're not going to raise them. and he's going to be confined to the iasues that I'm going to let him raise, which is io going to he restricted to those three. il So that's how ~~ that's why we're going 12 through this exercise, because i=t am not i3 going to be heering arguments of, oh, well, 14 annoy, the whole pleading has changed and ~ now we're into something else because we're 16 mot. iy MR. MANNING: No. Except ITt ean't knew it. 18 THE COURT: No, that's why you filed a 19 Pleading sir. 20 WR. MANNING: That*s right. omnes 186 Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum Trial Proceeding THE COURT: Ang you are not going te -- I'm Making this very, very clear: We do nek go beyond the four corners of ouy pleadings. That's why we file Pleading, and that's why 3 they are provided well in advance. You had Many Opportunity to amend your pleadings. We are not going through thet now. in particular, we had this morning te make gure. And T specifically asked you to make ig Sure there was nothing more. +f will 80 net il be hearing anything outside the scope of 12 these pleadings -- just sa we're clear. R MR. MANNING: T understand that. Tive been i4 practicing law for 46 years, and believe me, 15 qt understand that with great respect, Your 16 Honour, I’m Just Supposing an example of Vy what hapoens at trial with respect co 18 factual circumstances and people getting op 19 and asking for leave te amend. 20 Tam net saying f ax going to de that, It am rennin i 187 Bieber v. Kirchb sterget einet al on Before The Honourable Madam Justice Thorburn ‘Trial Proceeding, not forecasting it, but I am Saying that Mr, Kirchberger and his lawyer have te give an undertaking, and I haven't heard a clear ‘i unconditional yes. TRE COURT: You will get one «+ MR. MANNING: Thank you. TRE COURT: ~~ before we proceed MR. MANNING: Thank you. THE ee rr o OURT : Bue also want to make it very 10 clear that while I do understand that 11 sometimes things happen that one could never 2 predict, if in fact there is seme kind af 13 request for amending because there was ig something nobody could ever have HE anticipated, that your friend is going to be 16 qiven the opportunity to revisit some of the i7 concessions that he has made, if in. fact. you if do that. 19 So ft just want te be very clear. vm 20 MER. MANNING: +I understand. one nee sits cas Bieberstein v. Kirchberger ct al Before The Honourable Madam Justice Thorburn Trial Proceeding THE COURT: It ts a highly unusual si uation, as you know. MR. MANN 2] NG? Thais whole case has been an unisua ] situation TRE COURT: I'm beginning to understand that. But Mr. Rosenstein, I am guing to aak you, Siz, your friend is entitled te an 10 uhequivocal answer on that, and I dontt i want, you Know -~ on the pleading that he 12 has (lled, are you in agreement that the 3 W isgues that you take with Mr. Bleberstein's 4 entitlement as per the pleading that is is framed and as has been ci fumscribed in that 16 one peregraph in Justice Wilton-Siegel's 7 order, and just that we're clear, ik paragraph - 19 MR. MANNING: ~« 49 and $9, trr believe. 20 THE COURT: ~~ 43 and -- yes, 43 and $0 -- terrein a 189 Bieberstein v. Kirchberger ct al Before ‘The Honourable Madam Justice Therburn ‘Tnal Proceeding WR. ROSENSTETN: Well, Tt want ta submit -- TRE COURT: ~~ that these are the only 3 jasues? MR. ROSENSTEIN: Your Bonour, =a want to eclecumseribe it even further, and that was why I read the first sentence of that - paragraph. THE URE: Sorry, which paragraph? ag? MR. ROSENSTEIN: Paragraph $0 that was ~ 10 THE COURT: That's what he said, i MR. ROSENSTEIN: Right. 2 THE COURT: As circumseribed -- 5 MR ROSENS'TEIN: So -- a 4 THE COURT: ~~ by paragraph -- he’s just “ 15 said that. 16 MR. ROSENSTEIN: By the first sentence in 7 paragraph 50 -- 18 THE COURT: Right. 19 MR. ROSENSTEIN: Which is that that line -- 20 that one line that i read, Yor x Honour. 199 Bicherstein v. Kirchberger et al Before The Honourable Madam Justice Thorbum ‘Trial Proceeding If -- THE COURT: “am of the opinion that in agreement to this effect -~" MR. ROSENSTEIN: No. “the Piaintifts therefore seeks" or words to that effect. THE. COURT: Right, "seeks an order of the gourk ae ME. ROSENSTEIN: Right. SRE COURT: You that he's entitied to Ww enforce Che aaset. i MR. ROSENSTEIN: Right. 12 THE COURT: Yes. 13 MR. ROSENSTEIN: and so the reason that l4 made the caveat was the pleading as it 15 @ppears lists 1 A, B, through ¢. Se as leng id 16 as the acknowledgement claim cons # of the iy first paragraph, paragraph 50 -- 18 THE COURT: Bight. 19 MR. ROSENSTEIN: ~~ then I am unequivocally 4;al giving my undertaking. 19h in Bieberstein v. Kirchberger et al Before The Honourable Madam Justice Thorburn ym Trial Proceeding eee THE COURT: Okay. Right, ckay. MR, ROSENSTEIN: That. waa what f thought T was doing. THE COURT: Okay. MR. ROSENSTEIN: But Lf ztx wasn't clear, tim doing it again, MR. ROSENSTEIN: No, that's fine. ALL right. Did you want a moment to leak at that, Mr. 10 Manning? i MR. MANNING: to look at what, Your Honour? 12 THE coi He's just talked about paragraph 13 So, Bix. What he’s saying is that yes, he 14 agrees unequivocally that the only 3 issues pat 1s that he can raise are the 3 issues that ne 16 Yaised before me in dealing with my oe v endorsement, as long as we understand that on is it's the eading as Circumscribed in that 19 first sentence of paragraph 56. 20 192 Ricberstein v, Kirchberger ct al Before The Honourable Madam Justice Thorburn ‘Trial Proceeding I think that's what you just