Civil Case (Krayot) 21624-01-22 Amit Communications and Holdings Ltd. v. David Zadok - part 9

In this context, I was even relieved in favor of the plaintiff that the size of the system was not sufficient for the purpose of calculation, as stated in the absence of data on the output of the system at the planned location, and the other components that were detailed.

31. The plaintiff did not prove the lifespan of the system - in this regard, no expert opinion was presented to examine the specific system that the plaintiff requested to install on the roofs of the defendant's chicken coop, so that it would estimate the expected lifespan of the system. In this context, it should be noted that even in the agreed compensation clause - clause 9.3 of the agreement, the definition of "expected profit" refers to the definition - the defined "period of use" - "until the end of the possible date for the production of the system", but the plaintiff did not present any data in this regard and sufficed with the claim that it was 25 years.
32. The discount rate - the plaintiff did not prove the correct discount rate for this type of system, as is also evident from the case law to which the plaintiff referred, since in the Halleli case as well, there was a dispute between the parties regarding the correct discount rate that should be determined in that case. In another case - Civil Case (Shalom K.S.) 17517-11-14 Moshe Keren v.  M.N.  Sun Solar in a Tax Appeal (Nevo 28.12.2016) Departments arose again regarding the capitalization rate, but there an opinion was submitted on behalf of the parties, unlike in our case.
33. Payment of 25 agorot - It has not been proven that the tariff is fixed and that the IEC is not allowed to change or reduce the consideration as the years pass. Admittedly, the defendant confirmed in his testimony in court that the consideration currently received from the electric company for the production of electricity is the same (similarly, there is no difference in the agreement with the plaintiff and the agreement signed with Ormesh, see pp.  90, paras.  28-29).  However, as noted, this figure is not enough to calculate the expected profits.  In addition, it is not sufficiently clear that there is indeed no possibility of a reduction in the consideration that will be received with the passage of years.
34. Costs of setting up and installing the system - The plaintiff also did not prove the cost and installation of the system that was expected to be installed on the defendant's roof, and in this matter as well, an expert opinion was required, and the claim that the cost of construction is ILS 464,000 is not enough.
35. Current expenses and additional components to be reduced - In the Hilleli case , the court also determined additional components that should be reduced in the calculation of net profit (in accordance with the opinion submitted there, when there was no dispute regarding the need to reduce these components, and the dispute was regarding their rate), including operating and maintenance expenses, depreciation, insurance and replacement of converters.
36. Components that were allegedly not in dispute - I will note that in the IEC's letter to the defendant dated June 18, 2020 (p. 70 of the plaintiff's affidavits), the IEC does indeed inform the defendant that it approved his request for the installation of a production facility, with the approved power being 100 kWh, the date of commitment for the connection 15.03.2021 - the type of facility "tariff regulation above 15 kWh", the tariff that will apply for the production will be 45 agorot, Similarly, in the agreement between the carrier and Ormesh, it was recorded that the tariff of 45 agorot per 1 kWh is guaranteed for 25 years and is not linked to the index.  Thus, even if I were to assume in favor of the plaintiff the same data set out in the agreement between the defendant and Ormesh, the agreement there also lacks material details for the purpose of calculating the future profit, and first and foremost the production output, i.e., the quantity produced by 1 KW, is indeed 1,700 KW per year as claimed by the defendant or any other component.  In any case, the same letter states that this is a "commitment in principle" subject to the installation successfully passing the IEC's inspection and that the other necessary conditions must be met within a period of 6 months.
37. Thus, certainly in the present case, in which the plaintiff did not install the system, and the breach of contract was done at a relatively preliminary stage after the contract was signed, the plaintiff should have proved the components of the expected profit by means of an expert opinion on its behalf.
38. To all of this, it should be added that with regard to the agreed compensation clause, the plaintiff can only complain about herself as the one who chose to formulate the agreed compensation clause in a manner that in fact coincides with the "subsistence compensation" and requires an expert opinion for the purpose of proving the components of the compensation.
39. Refraining from presenting evidence and opinions - the plaintiff also did not present any accounting data of an accountant on her behalf regarding the plaintiff's income from similar projects, in order to learn about the profit per square meter, or the expected output. The plaintiff also did not seek to obligate the defendant to present it with data on actual output and actual profit from the system that was ultimately installed from Ormesh, which could have been an indication of the expected profit.

Compensation by way of estimation

40. The plaintiff sought alternatively or in combination, to assess the compensation by way of an estimate, and in this regard she referred to Civil Appeal 153/04 Rabinovich v. Rosenbaum (published in Nevo).

This argument should be rejected.

41. In the Anisimov judgment, it was held that the plaintiff has a duty to prove the factual data from which the compensation can be deduced, and this matter should not be left to the judge's discretion (Civil Appeal 355/80 Natan Anisimov in Tax Appeal v. Tirat Bat Sheva Hotel Ltd., IsrSC 35(2) 800 (1981)).
42. In the Anisamov case, it was held that even if a certain component can be calculated by way of an estimate or estimate, the basic data must be proven, whereas in our case there was no impediment to proving basic data that were detailed to them, including the expected output, the length of the system years, the capitalization factor, depreciation and current expenses.
43. In the additional judgment to which the plaintiff referred the Hillel case (Civil Case (Nazareth) 61680-02-18 Yoel Hillel v. Avraham Golan (published in Nevo)), the plaintiff submitted an opinion there in order to establish the basic data necessary for calculating the compensation:

"The burden of proof of the existence of the damage and its extent is on the plaintiff, by virtue of the well-known rule according to which the person who extracts the evidence from his friend is on him.  On the burden of proof in a claim for compensation for loss of profits, the Supreme Court discussed other municipal requests 8588/06 David Daljan v.  Development Authority in a Tax Appeal [Nevo] (November 11, 2010):