(Page 117, lines 18-27, transcript of June 17, 2024, emphasis added - p. R).
- The testimony of Mr. Porat, who was brought as a witness on behalf of the defendants, was very convincing and reliable, and it strengthened the plaintiff's testimony that everything was done lawfully and pending the termination of the lease, while giving the defendants opportunities to comply with the agreement, and only when the end of the lease was over, the agreement with the new tenant was signed. His testimony also strongly strengthens the plaintiff's claim that the property was "abandoned", uninvested, and that due to its neglect winked at the other investors. His testimony praises the plaintiff's patience to wait until the end of the agreement, and to give the defendant opportunities and not realize the enormous potential of this property.
- Since I am convinced that the plaintiff lawfully cancelled the agreement, it is necessary to examine the issue of compensation for the damage caused to the plaintiff.
The Issue of Damage
- The plaintiff explained the damages she claimed caused in a table that was part of the company's attorney's affidavit (a table that also appears in the statement of claim and in the summaries).
- First damage - a sum of ILS 350,000 plus VAT paid by the plaintiff in accordance with clause 3.2.1 of the 2018 agreement. Clause 3.2.3 reads as follows: "It is agreed that only subject to the execution of the aforementioned payment in full and on time, the tenant is prevented from raising any claim of delay in the date of delivery of possession of the original leased property to me, the original lease agreement." Clause 3.2.3 clearly indicates that this sum was paid as part of the parties' calculation with regard to the mutual claims in the 2014 agreement, and therefore, in my opinion, there is no reason to demand its restitution even if the defendants subsequently violated the 2018 agreement. Therefore, this component is rejected.
- Second damage - the sum of ILS 600,000 agreed compensation for a fundamental breach of the 2018 Agreement in accordance with Article 17.3 of the 2018 Agreement. This clause applies because, as I determined above, the defendants have fundamentally breached the agreement and are therefore liable for the agreed compensation. From this sum, two bank guarantees forfeited by the plaintiff in the sum of ILS 106,200 and ILS 188,000 must be deducted. Therefore, the defendant must pay the plaintiff the sum of ILS 305,800.
- Third damage - ILS 128,000 (including VAT) brokerage fees that the plaintiff paid to the brokers who brokered in the second lease agreement. The defendants claim that the loss of brokerage fees is damage due to amputation and not damage to the infringement, and therefore there is no reason to award it. Justice with the defendants, as a rule, brokerage fees will be awarded as reliance compensation for conducting negotiations to sign the agreement in bad faith (Gabriela Shalev and Effi Zemach, Contract Law, Fourth Edition, 2019, Chapter 4, p. 128), which was not claimed in this case, and does not constitute compensation for the breach of the agreement itself, after the agreement was signed and the parties acted in accordance with it. Therefore, this component is rejected.
- Fourth damages - fees and expenses vis-à-vis the tenant in other court proceedings: one that preceded the 2018 agreement and one that followed it. As for expenses for sums as a result of other proceedings, there is no reason to award compensation for such damage that was decided in the framework of the previous proceeding, and therefore what was ruled there, whether an amount was awarded or not, constitutes an act of court, and therefore in an additional proceeding, it is not possible to sue it again. See the reasons for this principled determination in the judgment of the Honorable Justice Yaakov Shef, who ruled in paragraphs 35-37 of judgment in TelAviv 37736-08-20 Bar Tal v. Ben Gera (October 6, 2022). More than necessary, we note that the failure to award costs in the previous proceeding between the parties before Judge Arkobi was by agreement between the parties (paragraph 25 of the affidavit of the company's attorney). Therefore, this component is rejected.
- Fifth damages - ILS 842,400 for the "restaurant" areas and ILS 982,000 for the "hotel" areas, which are the rent for the year "Grace" that was given to the defendants as part of the 2018 agreement in which no rent was paid to the plaintiff for 12 months. According to what is stated in the table in the plaintiff's affidavit, the grace constituted the plaintiff's actual participation in the cost of the restaurant and hotel adaptation works and their improvement, when the defendants did not perform these works at all, and therefore the plaintiff suffered a real loss of pocket.
In this regard, the defendants claim that this is at most "cutting damage" and not "infringement damage". "Moreover, consideration was received for the same grace (rent over the years)" (section 181(5) of the defendants' summaries).