Second, whether the waiver of claims prevents the plaintiffs from raising such claims;
and third, whether the defendants' conduct indeed justifies imposing the delay in completing the project and obtaining the occupancy certificate.
As stated, the parties disagree on each of these questions, and I will discuss them in the aforementioned order.
E(3)(1) Whether the defendants should be regarded as a "single business economic entity" in their relationship with the plaintiffs?
- As already noted, all the defendants are connected to the Barzili family: the escort is a member of the family; The lending company is a company owned by the lender and its two brothers, Boaz and Gilad; and the contractor is a subsidiary of a company owned by Gilad (paragraph 5 above).
- As part of his opinion, the expert was asked to examine whether there is a separation between the defendants themselves and between them and the other parties involved in the venture in various aspects, including in terms of activity, assets, management, economic independence, and more (decision of July 3, 2024). The expert thoroughly examined all the documents that were transferred to him, and the conduct of the defendants and the parties related to them, detailed his findings, and ultimately reached the conclusion that there was no such separation, and that "in fact, this is not a separate financial loan agreement and a construction agreement, but rather a combined agreement for the establishment of an interest-bearing credit project, under the same entity. Party A (the defendants) carries out the construction work and obligates party B for the consideration determined plus interest..." The expert further concluded that "the existence of common interests cannot be ignored, since the profits of the venture as a whole are the profits of shareholders in [the lending company], under whose control [the lender] and [the contractor] are under their control" (paragraphs 221 and 224 of the opinion).
- As is well known, "when the court decides to appoint an expert on its behalf in order to bring before the court relevant professional data for deciding the dispute before it, it will adopt the expert's findings in the absence of a significant and conspicuous reason not to do so" (Civil Appeal 2099/08 Ashkelon Municipality v. 1977 Investments and Holdings in a Tax Appeal (October 28, 2010); see also: Civil Appeal 293/88 Yitzhak Neiman Company for Rent in a Tax Appeal v. Rabi, paragraph 4 (31 December 1988)). The reasons for this rule are almost self-evident, and are rooted in "the importance of the testimony of a neutral appointed expert, as a tool that enables the court to obtain a clear and objective opinion on its own behalf, on matters requiring expertise" (Civil Appeal 9833/09 Cohen v. State of Israel (August 25, 2013)).
- In the case here, I do not believe that the defendants showed that there is a "significant and conspicuous reason" not to adopt the expert's conclusions regarding the lack of separation between the defendants themselves and between them and other parties involved in the venture.
FirstThis is a neutral expert, who has no interest in the success of one side or the other.