Bieberstein v. Brantford statement of claim

Court FileNo. Q g- J t -Q 9 t

ONTARIOSUPERIOR COURT OF JUSTICE

B E T WE E N :

HARRY BIEBERSTEIN

Plaintiff ,

THE CORPORATION OF THE CITY OF BRANTFORD

Defendant.

STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff . The claim

made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must

prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the

plaintiff s lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with

proof of service, in this court office, WITHIN TWENTY DAYS after this statement of claim is served

on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, the

period for serving and filing your statement of defence is forty days. If you are served outside Canada

and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend

in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within

which to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU

IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND

THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE

AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

DATE: October 19, 2011 Issued by:

Local Registrar

Address of Court Office:Brantford Courthouse70 Wellington St.Brantford ON N3T 2L9

TO: THE CORPORATION OF THE CITY OF BRANTFORD100 Wellington Square,P.O. Box 818,Brantford, Ontario, CanadaN3T 5R7

C L A I M

1) The Plaintiff HARRY BIEBERSTEIN, seeks against THE CORPORATION OF THE CITY OF

BRANTFORD (hereinafter called the CITY OF BRANTFORD):

a) A Declaration that the Plaintiff is the beneficial and legal owner of any right, title or

interest in Market Square, Brantford, Ontario or in any other real or personal property or

interest that the CITY OF BRANTFORD has acquired or will hereafter acquire from

GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS

INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on

business as G.K. YORK MANAGEMENT SERVICE;

b) A Declaration that the entering into ventures which conferred benefits and assets on the

CITY OF BRANTFORD on one hand and on GABRIEL KIRCHBERGER, SUSANNE

VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and/or

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1171852 ONTARIO LIMITED carrying on business as G.K. YORK MANAGEMENT

SERVICE on the other hand amount to the persons carrying on a business in common

with a view to profit and constitute a partnership at law;

c) A Declaration that the entering into ventures which conferred benefits and assets on the

CITY OF BRANTFORD on one hand and on GABRIEL KIRCHBERGER, SUSANNE

VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and/or


SERVICE, on the other hand, in the ownership, leasing and business operations of

Market Square, Brantford, Ontario with a view to profit constitute a partnership at law;

d) A Declaration that the CITY OF BRANTFORD has actual notice of the interest of the

Plaintiff in all of the real and personal property of GABRIEL KIRCHBERGER,

SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO

LIMITED and 1171852 ONTARIO LIMITED carrying on business as G.K. YORK

MANAGEMENT SERVICE;

e) An Order for an accounting and/or tracing of funds and/or property received by from,

transferred to, or exchanged with any of GABRIEL KIRCHBERGER, SUSANNE

VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and


SERVICE;

Pre-judgment interest in accordance with the Courts of Justice Act;

g) Post-judgment interest in accordance with the Courts of Justice Act;

h) Costs of this action;

i) Such further and other relief as to this Honourable Court may seem just.

2) The Plaintiff Harry Bieberstein resides in the City of Toronto, in the Province of Ontario.

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3) The Plaintiff Harry Bieberstein is a business person carrying on business in Canada, Germany

and elsewhere.

4) The Plaintiff Harry Bieberstein is the beneficial owner of all the real and personal property of

GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC.,

487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on business as G.K.

YORK MANAGEMENT SERVICE.

5) The Defendant the CITY OF BRANTFORD is a Municipal corporation.

6) The defendant the CITY OF BRANTFORD is involved in public private partnerships with

GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC.,

487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on business as G.K.

YORK MANAGEMENT SERVICE and is, at law, in partnership as they are carrying on

business in common with a view to profit, and the partnership includes the ownership and/or

operation of Market Square, Brantford, Ontario.

7) The Plaintiff Harry Bieberstein relies on the facts detailed in his Statement of Claim in Court

file CV-10-8534-00CL a copy of which is attached as Schedule "A" and his Statement of Claim

in Court file CV-10-8535-00CL a copy of which is attached as Schedule "B" .

8) The Plaintiff Harry Bieberstein pleads and relies on the Partnership Act R.S.O. 1990, as

amended.

DATED: Wednesday, October 19, 2011

MORRIS MANNING, Q.C.PROFESSIONAL CORPORATION605-65 Queen Street WestP.O. Box 79Toronto ON MSH 2M5

Morris Manning, Q.C.(LSUC¹10863R)

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Telephone: 416-304-0841Facsimile: 416-929-8411

Lawyer for the plaintiff .

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Schedule "A" Statement of Claim in Court file CV-10-8534-00CL

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Court File No. 4~~~ P t l - GOCL


B E T WE E N :c,OUR7

V~ HARRY BIEBERSTEIN

V Plainti ff ,5 l

A< aim„so~ ' — and-

GABRIEL K IRCHBERGER, SUSANNE V IKTORIA SCHM IDT, NOMEN FITNESS INC., 487223ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on business as G.K. YORK

MANAGEMENT SERVICE

Defendants.

STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff . The claimmade against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you mustprepare a statement of defence in Form 18A prescribed by the Rules of Civi l Procedure, serve it on theplainti ff 's lawyer or, where the plaintiff does not have a lawyer, serve it on the plainti ff, and file it, withproof of service, in this court office, WITHIN TWENTY DAYS after this statement of claim is servedon you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, theperiod for serving and filing your statement of defence is forty days. If you are served outside Canadaand the United States of America, the period is sixty days.

Instead of serving and fi l ing a statement of defence, you may serve and f ile a notice of intent to defendin Form 18B prescribed by the Rules of Civi l Procedure. This wil l entitle you to ten more days withinwhich to serve and f ile your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOUIN YOUR ABSENCE AND W ITHOUT FURTHER NOTICE TO YOU . IF YOU WISH TO DEFENDTHIS PROCEEDING BUT ARE UNA BLE TO PAY LEGA L FEES, LEGAL AID MAY BEAVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

DATE: January 12, Z010 Issued by:

L al RegistrarJoanne Nlcoara

330 University Avenue7th FloorToronto, ON, M5G 1R7

TO: GABRIEL K IRCHBERGER1 19 McGill Road, R R ¹ 1Mount Pleasant, ON NOE 1K O

AND TO: SUSANNE VIKTORIA SCHMIDT

Nomen Fitness Inc.

164 Colborne Street West

Brantford Ontario N3T 3K 5

AND TO: NOMEN FITNESS INC.,


B rantford Ontario N3T 3K 5

AND TO: 487Z23 ONTARIO LIMITED

3Z5 West St. Suite A100Brantford, Ontario N3R 3V6

AND TO: 1171852 ONTARIO LIMITED carrying on business as

G.K. YORK MANAGEMENT SERVICE

325 West St. Suite A100Brantford, Ontario N3R 3V 6

C L A I M

THE CLAIM

1) The plaintiff HARRY BIEBERSTEIN, the assignee of an indebtedness owed by the defendant

GABRIEL KIRCHBERGER to the BERLIN-HANNOVERSCHE HYPOTHEKENBANK,

herein called the BERLIN HYPO BA NK, and the assignee of all actionable wrongs committed

by the defendants GABRIEL K IRCHBERGER, SUSANNE VI KTORIA SCHMI DT, NOME N

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FITNESS INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on

business as G.K. YORK MANAGEMENT SERVICE against the BERLIN HYPO BANK,

seeks:

a) as against the defendant GABRIEL KIRCHBERGER:

i) An Order realizing the collateral security given by the defendants to the BERLIN

HYPO BANK;

ii ) A n Order recognizing and enforcing a foreign judgment issued in Germany in a

civi l and commercial matter;

ii i ) A n Order requiring the payment of an amount in Canadian currency suff icient to

purchase the amount of the obligation in the foreign currency at a bank in

Ontario listed in Schedule 1 to the Bank Act (Canada) at the close of business on

the first day on which the bank quotes a Canadian dollar rate for purchase of the

foreign currency before the day payment of the obligation is received by the

creditor (Section 121(1) Courts of Justice Act). The foreign obligation as of

December 31, 2009 is 7,314,892.25 EUROS plus interest after. that date at the rate

of 14% per annum being a per diem interest cost of 2,805.71 EUROS;

b) as against all of the defendants, including the defendant GABRIEL K IRCHBERGER:

i) Damages in the sum of $10,000,000.00 for conversion and fraud;

ii ) A n Order that the defendants have been unjustly enriched at the expense of the

BERLIN HYPO BANK in the amount of $10,000,000.00;

iii ) An Order for an accounting of funds;

iv) An Order for the tracing of funds;

v) A n Order appointing a receiver manager of all the real and personal property of the

defendants;

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vi ) A Declaration that there exists in favour of the plaintiff a constructive trust and

that the defendants hold as trustees for the benefit of the plaintiff al l their real

and personal property;

vii ) Aggravated damages in the amount of $1,000,000.00;

viii ) Punitive damages in the amount of $1,000,000.00;

ix) Pre-judgment interest in accordance with the Courts of Justice Act;

x) Post-judgment interest in accordance with the Courts of Justice Act;

xi ) Costs of this action;

xii ) Such further and other relief as to this Honourable Court may seem just.

THE PARTIES AND OVERVIEW

2) The BERLIN HYPO BANK is a Banking Corporation that specializes in loans for the

acquisition and improvement of real property in Germany and elsewhere.

3) The plaintiff Harry Bieberstein:

a) Resides in the City of Toronto, in the Province of Ontario;

b) I s a business person carrying on business in Canada, Germany and elsewhere.

4) The plaintiff Harry Bieberstein is the assignee of:

a ) the civil and commercial debt owed by the defendants to the BERLIN HYPO BA NK ;

b) a l l chose in action with respect to the actionable wrongs committed by the defendants

a gainst the BERLIN HYPO BA N K .

5) The plaintiff Harry Bieberstein claims on the "Notarized Debt Acknowledgment" of the

defendant GABRIEL KIRCHBERGER, which according to German Law:

a) constitutes a continuing collateral security on all of the debtor's real and personal

property which is on demand enforceable under the same rules as a judgment by a

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German Court; and

b) is of the same legal effect as a Judgment of a Court and can be executed without further

legal requirements.

6) The amount owing by the defendant GABRIEL KIRCHBERGER on account of the funds

borrowed from the BERLIN HYPO BANK as of December 31, 2009 is 7,314,892.25 EUROS

plus interest after that date at the rate of 14% per annum being a per diem interest cost of

2,805.71 EUROS.

7) The defendant GABRIEL K IRCHBERGER:

a) a t the time of his dealings with the BERLIN HYPO BANK pretended to be a German

citizen born June 14, 1949, and bearing German passport bearing identif ication number

2399506150D« 4906144<0709093« « « <8 who was living in Germany and carrying

on the business of real estate development in Germany and as such he persuaded the

BERLIN HYPO BANK to lend the equivalent of many millions of dollars to a real

estate development company IMKA IMMOBILIEN BESIT-U. VERW. GES. MBH.

h erein called IM K A ;

b) is a Canadian citizen who resides in the City of Mount Pleasant, in the Province of

Ontario;

c) was at all material times the principal shareholder and directing mind of:

i ) the defendant 1171852 ONTARIO L IM ITED carrying on business as G.K .

YORK MANAGEMENT SERVICE;

ii ) the defendant NOMEN FITNESS INC.; and

iii ) the defendant 487223 ONTARIO LIMITED;

d) used his co-defendants to hold and conceal his assets so as to frustrate the Bank's ability

to collect on the debt.

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8) The defendant SUSANNE VIKTORIA SCHMIDT was born in Germany and now resides in the

Province of Ontario where she manages the business of NOMEN FITNESS INC.

9) The defendant NOMEN FITNESS INC.:

a) is a corporation incorporated pursuant to the laws of the Province of Ontario;

b) carries on business in the Province of Ontario; and

c) has its principal off ice in the City of Brantford, in the Province of Ontario,

10) The defendant 487223 ONTARIO LIMITED:



c) has its principal off ice in the City of Brantford, in the Province of Ontario.

11 ) The defendant 1171852 ONTARIO LIMITED carries on business as G.K. YORK

MANAGEMENT SERVICE and:

a) i s a corporation incorporated pursuant to the laws of the Province of Ontario;

b) ca rries on business in the Province of Ontario; and


12) The BERLIN HYPO BA NK, as pleaded herein, lent various corporate entities related to the

defendant GABRIEL KIRCHBERGER large sums of money.

13) The defendant GABRIEL KIRCHBERGER:

a) a t the time of his borrowing from the BERLIN HYPO BANK pretended to be a German

citizen l iving in Germany and carrying on the business of real estate development in

Germany and as such he persuaded the BERLIN HYPO BANK to lend the equivalent of

many mi l l ions of dollars to various corporate entities related to the defendant GABRIEL

KIRCHBERGER including a real estate development company IMKA IMMOBILIEN

B ESIT-U. VERW. GES. MBH. herein called IM K A ;

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b) was one of the principals of the various corporate entities to which the BERLIN HYPO

BANK lent money; and

c) a t the time of entering into the loan agreements the defendant GABRIEL

KIRCHBERGER concealed from the BERLIN HYPO BANK the fact that he had

immigrated to Canada in 1986.

14) The BERLIN HYPO BANK entered into seven loan transactions for which the defendant

GABRIEL KIRCHBERGER is liable and:

a) as of December 31, 2009 the outstanding indebtedness is 7,314,89Z.25 EUROS and

exists as a valid and enforceable debt in Germany;

b) a f ter December 31, 2009 interest is owing at the rate of 14% per annum; and

c) a f ter December 31, 2009 the per diem interest cost is 2,805.71 EUROS.

15) The defendant GABRIEL K IRCHBERGER in consideration of the loans being made to

companies in which he was the principal shareholder:

a) signed the loans as principal debtor; and

b) gave as collateral security a "Notarized Debt Acknowledgment" pledging all of his real

and personal property as collateral security for the repayment of the loan.

16) German law permits the BERLIN HYPO BANK and its assignee the plaintiff HARRY

BIEBERSTEIN, as holder of the "Notarized Debt Acknowledgment" of GA BRIEL

KIRCHBERGER, to seize all of GABRIEL K IRCHBERGER's real and personal property on

demand without further legal process.

17) The defendant GABRIEL KIRCHBERGER by virtue of the default of his personal corporations

GbR Gabriel Kirchberger und Martin Kirchberger, GbR Gabriel Kirchberger und Jurgen

Gerasch and IMK A GmbH, is indebted to the plaintiff on account of seven loan transactions

which as of October 31, Z009 total 7,251,977.46 Euros and have a per diem rate of interest of

Page 7

1,031.39 Euros.

18) The indebtedness arises as a result of the following loan transactions:

The First Loan

a) T he defendant GABRIEL K IRCHBERGER guaranteed a loan from the BERLIN HYPO

BANK to IM K A GmbH on December 29, 1992, which guarantee was collaterally

secured by a "Notarized Debt Acknowledgement" of the defendant GABRIEL

KIRCHBERGER;

i) T he loan was in the principal sum of 2,450,000 Duetchesmarks;

ii ) A s of October 31, 2009 the defendants are indebted to the plaintiff in the sum of

1,920,804.38 Euros;

iii ) By correspondence dated January 6, 2010 the BERLIN HYPO BANK demanded

payment under the guarantee;

The Second Loan

b) T he defendant GABRIEL K IRCHBERGER guaranteed a loan from the BERLIN HYPO

BANK to IM K A GmbH on December 29, 1992, which guarantee was collateral ly

secured by a "Notarized Debt Acknowledgement" of the defendant GABRIEL

KIRCHBERGER;

i) The loan was in the principal sum of 2,700,000.00 Deutschemarks;

ii ) As of October 31, 2009 the loan balance was 1,626,028,98 Euros; and



The Third Loan

c) T he defendant GABRIEL K IRCHBERGER guaranteed a loan from the BERLIN HYPO

BANK to 1MKA GmbH on October 5, 1995, which guarantee was collaterally secured

Page 8

by a "Notarized Debt Acknowledgement" of the defendant GABRIEL

KIRCHBERGER;

i) The loan was in the principal sum of 350,000.00 Deutschemarks;

ii ) As of October 31, 2009 the loan balance was 194,614.91 Euros; and

iii ) By correspondence dated January 6, 201Q the BERLIN HYPO BANK demanded


The Fourth Loan

d) The defendant GABRIEL KIRCHBERGER on December 12, 1996 guaranteed a loan

from the BERLIN HYPO BANK to his personal corporation GbR Gabriel Kirchberger

und Martin K irchberger, which guarantee was collaterally secured by a "Notarized Debt

Acknowledgement" of the defendant GABRIEL K IRCHBERGER;

i) The loan was in the principal sum of 1,3Q0,000.00 Deutschemarks;


569,933.13 Euros; and

iii ) By correspondence dated January 6, Z010 the BERLIN HYPO BANK demanded


The Fifth Loan

e) The defendant GABRIEL KIRCHBERGER on August 18, 1997 guaranteed a loan from

the BERLIN HYPO BANK to his personal corporation GbR Gabriel Kirchberger und

Martin K irchberger, which guarantee was collaterally secured by a "Notarized Debt

Acknowledgement" of the defendant GABRIEL KIRCHBERGER;

i) The loan was in the principal sum of Z3,854,854,00 Deutschemarks;


2,322,898.17 Euros; and

Page 9



The Sixth Loan

f) The defendant GABRIEL K IRCHBERGER on M arch 19, 1998 guaranteed a loan from

the BERLIN HYPO BANK to his personal corporation GbR Gabriel K irchberger und

Martin K irchberger, which guarantee was collaterally secured by a "Notarized Debt

Acknowledgement" of the defendant GABRIEL K IRCHBERGER;

i) The loan was in the principal sum of 1,Z50,000.00 Deutschemarks;

ii ) A s of October 31, Z009 the defendants are indebted to the plaintiff in the sum of

294,511.84 Euros; and


payment under the guarantee; and

The Seventh Loan

g) The defendant GABRIEL KIRCHBERGER on July 14, 1998 guaranteed a loan from the

BERLIN HYPO BANK to his personal corporation GbR Gabriel Kirchberger und

Martin Kirchberger, which guarantee was collaterally secured by a "Notarized Debt

Acknowledgment" of the defendant GABRIEL K IRCHBERGER;

i) The loan was in the principal sum of 565,500 Deutschemarks;


269,195.05 Euros; and


payment under the guarantee.

19) On March 4, 2003 the defendant GABRIEL K IRCHBERGER was subjected to examination

under oath pursuant to German insolvency l aw s. In those proceedings, the defendant

Page 10

GABRIEL KIRCHBERGER:

a) admitted ownership of 90% of the defendant G.K. YORK M A NA GEM ENT SERVICE;

b) a dmitted ownership of 90% of the defendant 1171852 ONTARIO LIMITED;

c) f alsely asserted that those entities had no equity or value;

d) f alsely asserted that he had no other assets; and

e) w i l fully concealed and fraudulently concealed his true financial standing by asserting

that he had no assets and that those companies had no equity or value.


a) Defrauded the BERLIN HYPO BANK by:

consenting to judgment in Germany by signing the "Notarized Debt

Acknowledgement" and thereafter removing his assets from Germany, including

funds borrowed from the BERLIN HYPO BANK and using those funds to

acquire assets in Canada in the names of his co-defendants and others not

currently known to the plainti ff ;

ii ) l ying on his German insolvency proceedings by falsely denying that he had

assets in Canada;

ii i ) creating a dual identity for himself under the name Gabriel K irchberger with the

i ntention of defeating the claims of the BERLIN HYPO BA NK ;

iv ) w i l ful ly and fraudulently concealing his true financial standing by hiding his

assets by:

(1) pretending to be insolvent in Germany while acquiring assets in Canada;

and

(2) m oving his assets beyond the jurisdiction of the German Courts;

b) concealed his fraud by unlawfully obtaining Canadian citizenship by lying and stating

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that he resided in Canada when in fact he was l iving in Germany and perpetrating his

f raud on the BERLIN HYPO BAN K ;

c) creating his dual identity by lying on his Canadian citizenship application by falsely

asserting that he was in Canada for a three year period when in fact he was not in

Canada for a suff icient length of time because of the time he spent in residence in

Germany; and

d) used his illegally obtained Canadian citizenship to defeat the BERLIN HYPO BANK by

moving his assets including funds borrowed from the BERLIN HYPO BANK to Canada

and by investing those funds in the names of his co-defendants.

21) In the spring of 2009 the BERLIN HYPO BANK discovered that:

a) the defendant GABRIEL K IRCHBERGER had lied in the Germany insolvency

proceedings and that he in fact had hidden assets in Canada; under his Canadian persona

b) the defendants GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT,


SERVICE and 487223 ONTARIO LIMITED had used funds misappropriated from the

BERLIN HYPO BANK to acquire real and personal property in the Province of

Ontario;

c) The defendant GABRIEL KIRCHBERGER perpetrated his fraud by creating a dual

identity for himself; both of those identities being under the name Gabriel K irchberger,

one in Canada and the other in Germany; and

d) The defendant GABRIEL KIRCHBERGER by deceit pretended that the Canadian

"Gabriel K irchberger" operating in Brantford, Ontario was unrelated to the German

"Gabriel K irchberger" operating in Berlin, Germany.

22) The defendant GABRIEL K IRCHBERGER in an effort to conceal that he was the same Gabriel

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Kirchberger pretended to be a wealthy business person who owned 11,000 rental units in

Germany.

23) In so doing, the defendant GABRIEL KIRCHBERGER:

a) Defaulted on his agreement with the BERLIN HYPO BANK;

b) Wrongfully hid his assets from the BERLIN HYPO BANK by;

i) Pretending to be insolvent in Germany while acquiring assets in Canada; and

ii ) M oving his assets beyond the jurisdiction of the German Courts.

24) The defendants GABRIEL KIRCHBERGER, 117185Z ONTARIO LIMITED carrying on

business as G.K. YORK MANAGEMENT SERVICE and 487223 ONTARIO LIMITED have

been unjustly enriched in the sum of $10,000,000.00 by using funds belonging to the BERLIN

HYPO BANK to acquire real and personal property in the Province of Ontario.

25) The plaintiff is the beneficial owner of al l real and personal property owned by the defendants.

Z6) By correspondence dated January 6, 2010 the BERLIN HYPO BANK called the collateral

security by serving notice on the defendant GABRIEL K IRCHBERGER.

27) The conduct of the defendants is suff iciently reprehensible to merit an award of exemplary

damages in the sum of $1,000,000.00 and punitive damages in the sum of $1,000,000.00.

28) The plaintif f requires that to the extent permissible the issues of fact are to be tried and the

damages assessed by a jury.

DATED: Monday, January Ã , Z010i 'h Pcs)

MORRIS MANNING, Q.C.PROFESSIONAL CORPORATION605-65 Queen Street WestP.O. Box 79T oronto ON M 5H ZM 5

Morris Manning, Q.C.(LSUC410863R)

Page 13

Frederick J. Shuh(LSUC¹16148H)


Lawyers for the plaintiff.

Page 14

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Schedule "B" Statement of Claim in Court file CV-10-8535-00CL

Page 7

Court File No. C 9- IC'


B E T W E E N :

cOURp HARRY BIEBERSTEINQ

P lainti ff ,

" r~c — and-re/e,RKO%

GABRIEL KIRCHBERGER, SUSANNE V IKTORIA SCHM IDT, NOMEN FITNESS INC., 487ZZ3ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on business as GK. YORK

MANAGEMENT SERVICE

Defendants.

STATEMENT OF CLAIM

TO THE DEFENDANTS:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff . The claimmade against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you mustprepare a statement of defence in Form 18A prescribed by the Rules of Civi l Procedure, serve it on theplainti ff 's lawyer or, where the plaintiff does not have a lawyer, serve it on the plainti ff , and file it, withproof of service, in this court off ice, WITHIN TW ENTY DAYS after this statement of claim is servedon you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, theperiod for serving and f i l ing your statement of defence is forty days. I f you are served outside Canadaand the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defendin Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days withinwhich to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGM ENT MAY BE GIVEN A GA INST YOUIN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFENDTHIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BEAVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

DATE: Tuesday, January 12, 2010 Issued by:

oca gistrar J oanne Nicoara

RoQlstrar Supenor Court ut Justu:6Address of Court Office:330 University Avenue7th FloorToronto, ON, M5G 1R7

TO: GABRIEL KIRCHBERGER119 McGill Road, R R 41Mount Pleasant, Ontario NOE 1K O

AND TO: SUSANNE VIKTORIA SCHMIDT

Nomen Fitness Inc.


Brantford, Ontario N3T 3K 5

AND TO: N OMEN FITNESS INC.,


B rantford, Ontario N3T 3K 5

AND TO: 487223 ONTARIO LIMITED

325 West St. Suite A100Brantford, Ontario N3R 3V 6

AND TO: 1171852 ONTARIO LIMITED carrying on business as

G.K. YORK MANAGEMENT SERVICE

325 West St. Suite A100Brantford, Ontario N3R 3V6

C L A I M

THE CLAIM

1) T he plaintiff HARRY BIEBERSTEIN, the assignee of an indebtedness owed by the defendant

GABRIEL K IRCHBERGER to the HYPO REAL ESTATE BANK AG, herein called the HYPO

P ag e 2 o f 1 0

BA NK , and the assignee of all actionable wrongs committed by the defendants GABRIEL

KIRCHBERGER, SUSANNE V IKTORIA SCHM IDT, NOM EN FITNESS INC., 487223

ONTARIO LIMITED and 1171852 ONTARIO LIMITED carrying on business as G.K. YORK

MANAGEMENT SERVICE, against the HYPO BANK seeks:

a) A s against the defendant GABRIEL K IRCHBERGER:

i) An Order realizing the collateral security given by the defendants to the HYPO

BANK;

ii ) A n Order recognizing and enforcing a foreign judgment issued in Germany in a

civi l and commercial matter; and

iii ) A n Order requiring the payment of an amount in Canadian currency suff icient to

purchase the amount of the obligation in the foreign currency at a bank in

Ontario listed in Schedule 1 to the Bank Act (Canada) at the close of business on

the first day on which the bank quotes a Canadian dollar rate for purchase of the

foreign currency before the day payment of the obligation is received by the

creditor (Section 121(1) Courts of Justice Act). The foreign obligation as of

December 31, 2009 is 3,134,066.54 EUROS plus interest after that date at the

rate of 14% per annum being a per diem interest cost of 1,202.10 EUROS;

b) As against all of the defendants, including the defendant GABRIEL KIRCHBERGER:

i) Damages in the sum of $10,000,000.00 for conversion and fraud;

ii ) A n Order that the defendants have been unjustly enriched at the expense of the

HYPO BANK in the amount of $10,000,000.00;

iii ) An Order for an accounting of funds;

iv ) A n Order for the tracing of funds;

v) A n Order appointing a receiver manager of the real and personal property of the

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defendants;

vi ) A Declaration that there exists in favour of the plaintiff a constructive trust and

that the defendants hold as trustees for the benefit of the plaintiff all their real

and personal property;

vii ) Aggravated damages in the amount of $1,000,000.00;

viii ) Punitive damages in the amount of $1,000,000.00;

ix ) Pre-judgment interest in accordance with the Courts of Justice Act;

x) Post-judgment interest in accordance with the Courts of Justice Act;

xi ) Costs of this action; and

xii ) Such further and other relief as to this Honourable Court may seem just.

THE PARTIES AND OVERVIEW

2) The HYPO BANK is a Banking Corporation that specializes in loans for the acquisition and

improvement of real property in Germany and elsewhere.

3) The plaintiff Harry Bieberstein:

a) Resides in the City of Toronto, in the Province of Ontario;

b) Is a business person carrying on business in Canada, Germany and elsewhere.

4) The plaintiff Harry Bieberstein is the assignee of:

a) the civi l and commercial debt owed by the defendants to the HYPO BA NK ; and

b) a l l chosein action with respect to the actionable wrongs committed by the defendants

a gainst the HYPO BA N K ,

5) T he plaintiff Harry Bieberstein claims on the "Notarized Debt Acknowledgment" of the

defendant GABRIEL KIRCHBERGER, which according to German Law:

a) constitutes a continuing collateral security on all of the debtor's real and personal

property which is on demand enforceable under the same rules as a judgment by a

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German Court; and

b) is of the same legal effect as a judgment of a Court and can be executed without further

legal requirements.

6) The amount owing by the defendant GABRIEL KIRCHBERGER on account of the funds

borrowed from the HYPO BANK as of December 31, 2009 is 3,134,066.54 EUROS plus

interest after that date at the rate of 14% per annum being a per diem interest cost of 1,202.10

EUROS.


a) at the time of his dealings with the HYPO BANK pretended to be a German citizen born

June 14, 1949, and bearing German passport bearing identification number

2399506150D« 4906144<0709093« « « <8 who was living in Germany and carrying

on the business of real estate development in Germany and as such he persuaded the

HYPO BANK to lend the equivalent of many mil l ions of dollars to himself and to

corporations in which he had substantial interests;

b) is a Canadian citizen who resides in the City of Mount Pleasant, in the Province of

Ontario;

c) w as at all material times the principal shareholder and directing mind of:

i) the defendant 1171852 ONTARIO LIMITED carrying on business as GK.

YORK MANAGEMENT SERVICE;

ii ) the defendant NOMEN FITNESS INC.; and

iii ) the defendant 487223 ONTARIO LIMITED;

d) used his co-defendants to hold and conceal his assets so as to frustrate the Bank's ability

to collect on the debt.

8) T he defendant SUSANNE V IKTORIA SCHM IDT was born in Germany and now resides in the

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Province of Ontario where she manages the business of NOMEN FITNESS INC.

9) The defendant NOMEN FITNESS INC.:



c) has its principal office in the City of Brantford, in the Province of Ontario.

10) The defendant 487223 ONTARIO LIMITED:




11 ) The defendant 1171852 ONTARIO LIMITED carries on business as GK. YORK

MANAGEMENT SERVICE and:


b) ca rries on business in the Province of Ontario; and

c) has its principal office in the City of Brantford, in the Province of Ontario.

1Z ) The defendant Gabriel Kirchberger:

a) at the time of his borrowing from the HYPO BANK pretended to be a German citizen

living in Germany and carrying on the business of real estate development in Germany

and as such he persuaded the HYPO BANK to lend the equivalent of many millions of

dollars to a real estate development company IMKA IMMOBILIEN BESIT-U. VERW.

GES. MBH. herein called IMKA;

b) was one of the principals of IMKA; and

c) a t the time of entering into the loan agreement the defendant GABRIEL

KIRCHBERGER concealed from the HYPO BANK the fact that he had immigrated to

Canada in 1986.

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13) The HYPO BANK lent IMKA the principal sum of 3,221,138.85 EUROS on January 25, 2000

a) as of December 31, 2009 the outstanding indebtedness is 3,134,066.54 EUROS and

exists as a valid and enforceable debt in Germany;

b) a fter December 31, 2009 interest is owing at the rate of 14% per annum; and

c) a fter December 31, 2009 the per diem interest cost is 1,202.10 EVROS.

1 4) The defendant GABRIEL K IRCHBERGER in consideration of the loan being made to IM K A :

a) signed the loan as principal debtor; and

b) gave as collateral security a "Notarized Debt Acknowledgment" pledging all of his real

and personal property as collateral security for the repayment of the loan.

15) German law permits the HYPO BANK and its assignee the plaintiff HARRY BIEBERSTEIN,

as holder of the "Notarized Debt Acknowledgment" of GABRIEL K IRCHBERGER, to seize all

of GABRIEL KIRCHBERGER's real and personal property on demand without further legal

process.

16) The defendant GABRIEL K IRCHBERGER by virtue of his default and the default of the

borrowing corporations is indebted to the plaintif f on account of the loan transactions which

indebtedness as of December 31, 2009 totals 3,134,066.54 Euros and has a per diem rate of

interest of 1,202.10 Euros.

17) On March 4, 2003 the defendant GABRIEL K IRCHBERGER was subjected to examination

under oath pursuant to German insolvency laws. In those proceedings the defendant GABRIEL

KIRCHBERGER:

a) admitted ownership of 90% of the defendant GK. YORK M A N A GEM ENT SERVICE;

b ) admitted ownership of 90% of the defendant 1171852 ONTARIO L IM IT ED ;

c) f alsely asserted that those entities had no equity or value;

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d) f alsely asserted that he had no other assets; and

e) w i l ful ly concealed and fraudulently concealed his true financial standing by asserting

that he had no assets and that those companies had no equity or value.


a) De frauded the HYPO BANK by:

i) consenting to judgment in Germany by signing the "Notarized Debt

Acknowledgement" and thereafter removing his assets from Germany, including

funds borrowed from the HYPO BANK and using those funds to acquire assets

in Canada in the names of his co-defendants and others not currently known to

t he plaintiff ;

ii ) l ying on his German insolvency proceedings by falsely denying that he had

assets in Canada;

ii i ) creating a dual identity for himself under the name Gabriel K irchberger with the

intention of defeating the claims of HYPO BANK;

iv) w i lfully and fraudulently concealing his true financial standing by hiding his

assets by:

(1) pretending to be insolvent in Germany while acquiring assets in Canada;

and

(2) m oving his assets beyond the jurisdiction of the German Courts;

b) concealed his fraud by unlawfully obtaining Canadian citizenship by lying and stating

that he resided in Canada when in fact he was l iving in Germany and perpetrating his

f raud on the HYPO BA NK ;

c) creating his dual identity by lying on his Canadian citizenship application by falsely

asserting that he was in Canada for a three year period when in fact he was not in

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Canada for a sufficient length of time because of the time he spent in residence in

Germany; and

d) used his i llegally obtained Canadian citizenship to defeat the HYPO BANK by moving

his assets including funds borrowed from the HYPO BANK to Canada and by investing

those funds in the names of his co-defendants.

19) In the spring of 2009 the HYPO BANK discovered that:

a) the defendant GABRIEL KIRCHBERGER had lied in the Germany insolvency

proceedings and that he in fact had assets in Canada;

b) the defendants GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT,

1171852 ONTARIO LIMITED carrying on business as GK. YORK MANAGEMENT

SERVICE and 487223 ONTARIO LIMITED had used funds misappropriated from the

HYPO BANK to acquire real and personal property in the Province of Ontario;

c) The defendant GABRIEL KIRCHBERGER perpetrated his fraud by creating a dual

identity for himself; both of those identities being under the name Gabriel K irchberger,

one in Canada and the other in Germany;

d) The defendant GABRIEL K IRCHBERGER by deceit pretended that the Canadian

"Gabriel K irchberger" operating in Brantford, Ontario was unrelated to the German

"Gabriel K irchberger" operating in Berl in, Germany.

20) The defendant GABRIEL K IRCHBERGER in an effort to conceal that he was the same Gabriel

Kirchberger pretended to be a wealthy business person who owned 11,000 rental units in

Germany.

21) In so doing, the defendant GABRIEL KIRCHBERGER:

a ) D efaulted on his agreement with the HYPO BA NK ;

b) W rongfully hid his assets from the HYPO BANK by :

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i) Pretending to be insolvent in Germany while acquiring assets in Canada; and

ii ) M oving his assets beyond the jurisdiction of the German Courts.

22) The defendants GABRIEL KIRCHBERGER, 1171852 ONTARIO LIMITED carrying on

business as GK. YORK MANAGEMENT SERVICE and 487223 ONTARIO LIMITED have

been unjustly enriched in the sum of $10,000,000.00 by using funds belonging to the HYPO

BANK to acquire real and personal property in the Province of Ontario.

23) The plaintif f is the beneficial owner of all real and personal property owned by the defendants.

24) B y correspondence dated January 6, 2010 the HYPO BANK called the collateral security by

serving notice on the defendant GABRIEL KIRCHBERGER.

25) The conduct of the defendants is sufficiently reprehensible to merit an award of exemplary

damages in the sum of $1,000,000.00 and punitive damages in the sum of $1,000,000.00.

26) The plaintiff requires that to the extent permissible the issues of fact are to be tried and the

damages assessed by a jury.

DATED: Monday, January N, 2010I t.g~&)

MORRIS MANNING, Q.C.PROFESSIONAL CORPORATION605-65 Queen Street WestP.O. Box 79T oronto ON M 5H 2M 5

Morris Manning, Q.C.(LSUC410863R)

Frederick J. Shuh(LSUC416148H)


Lawyers for the plaintif f .

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Bieberstein v. Brantford statement of claim

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