COURT FILE NO.: CV-108535-00CL

DATE: 20120501

SUPERIOR COURT OF JUSTICE – ONTARIO

(COMMERCIAL LIST)

RE: HARRY BIEBERSTEIN, Plaintiff

AND:
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED AND 1171853 ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK MANAGEMENT SERVICES, Defendants

BEFORE: CUMMING J.

COUNSEL:
Morris Manning Q.C., and Frederick J. Shuh, for the Plaintiff
Jonathan L. Rosenstein, for the Defendants

HEARD: APRIL 27, 2012

ENDORSEMENT

[ 1 ] Counsel for the parties appeared before me for a case conference today.

Scheduling

[ 2 ] The trial is scheduled to commence on Monday, November 19, 2012 (five days).

[ 3 ] The defendants shall bring a summary judgment motion on Wednesday, November 14, 2012. This should be before the same judge who is scheduled to take the trial as the evidence on the motion is relevant to the issues at trial if the motion is unsuccessful.

Issue on the Defendants’ Summary Judgment Motion

[ 4 ] The issue on the summary judgment turns on whether the plaintiff’s actions are statute barred because of a statutory limitations of action. An issue will be as to what law applies and, if it is German law, what is the limitations of actions law.

Expert Reports

[ 5 ] Expert reports have been prepared by both sides on this issue.

[ 6 ] The plaintiff’s issue as to the actions being statute barred may turn, in part, on whether there was a fraudulent concealment by the defendant Kirchberger, i.e . that he had substantial assets such that he could honour his guarantees to the assignor bank and/or that those assets were fraudulently sourced by the monies borrowed by the borrowing company in Germany but this was not reasonably discoverable by the assignor banks for some time such that any statutory limitation of actions time requirement did not run against the plaintiff given the particular historical factual situation (with the result that the assignee debt obligations are not in law statute barred as not having been brought in time).

[ 7 ] Reportedly, the existing expert reports may not consider German law applicable given the factual scenario described in the immediately preceding paragraph, and the parties will provide supplementary expert opinion reports as to what German law would apply in such a scenario.

Possible Objection by the Defendants as to Hearsay Evidence on the Summary Judgment Motion

[ 8 ] Counsel for Mr. Kirschberger will advise counsel for the plaintiff in writing as to any affidavit evidence of Mr. Bieberstein submitted as part of the plaintiff’s response to the defendants’ summary judgment motion which Mr. Rosenstein considers to be hearsay and objectionable.

Documents

[ 9 ] Mr. Rosenstein will obtain any and all documents known to be in existence and in the control of his clients that may possibly be relevant to the issues in this case for the purpose of demonstrably preserving documents for the ongoing litigation. This will include the documents produced to date as well as the documents referred to by accountant Cecile in his examination.

[ 10 ] The documents for the period 1996 to 2004, both inclusive, will be produced by Mr. Rosenstein expeditiously to counsel for the plaintiff and they will be allowed to make such copies as they see fit which they may show to Mr. Bieberstein for the purpose of his preparing for a further cross-examination. Mr. Bieberstein will provide a signed undertaking that he will keep such documents in strict confidence and will not discuss any such documents with any person (other than his counsel) or copy them or show them to any person.

CUMMING J.

Date: May 1, 2012