As further claimed, since defendant 1 agreed to pay monetary compensation in lieu of compensation in kind (an addition of meters) reflecting the value of the apartment, the amount of compensation should be linked to the apartment price index from the date of the expert's opinion until the date of actual payment.
- According to defendant 2, the claim should be dismissed. First, due to a violation of due process since the defendant was not able to add evidence and cross-examine the plaintiffs, the apartment owners in the condominium, to prove its claims regarding a discriminatory agreement that grants Poliker excessive and extreme considerations, the result of bad faith conduct by the entrepreneurial company and while concealing the agreement. Second, in view of the material violation of defendant 2's property rights, according to the expert, there is a violation of equality of consideration, which strengthens the defendant's claim of reasonable, justified and committed refusal. A private agreement was signed between the entrepreneurial company and Poliker, which was concealed from the defendant and delivered to her when the claim was filed. This is in violation of the obligation of transparency that applies to the developer company to provide all apartment owners in the condominium with any material information relating to the execution of the project and to inform them of any change in the consideration given to any of the apartment owners that is not negligible. An examination of the agreement revealed that it constitutes a material deviation from the consideration given to the other apartment owners in the condominium, which amounts to a severe violation of the equality of the consideration. This includes the provision of architectural services, the services of a lawyer, transportation services, rich specifications in the consideration apartments, including wooden parquet cladding, a sauna and a salt room, the granting of rights to unregistered roof areas, attaching an upper roof area that is common property, raising floors, entitlement to additional parking, a unique right to choose in the warehouse, and a tax benefit, which is given only to Poliker in accordance with the consideration mechanism set out in the agreement. At the same time, defendant 1 argued that instructions relating to "coercion or consideration" should not be given, that there had not yet been "full disclosure of documents" regarding the private agreement with Poliker, the source of the private lawyer's funding, the taxation data, the full penthouse specifications, and an actual certified and up-to-date measurement of all the apartments and areas in the condominium. As for Sheinman, when she received a large increase in space, an increase in the floor and a tax benefit, as a matter of surplus consideration, and that the reduction of a main area of 4 square meters of the consideration apartments was allegedly carried out only after the expert determined that she was receiving excess consideration, as if it were a "mistake", and not her.
As further argued, given the substantial economic differences in the considerations of the parties, it is correct to apply the 'value index' to examine the harm to the equality of considerations, and not the 'area index' that is the subject of the expert's opinion. In this context, the expert's opinion should not be adopted since it does not present the full factual basis that was the basis of the expert's conclusions and which is based on data that was not examined by him. As the expert admitted in his interrogation, it is not the actual index of the apartments and determined Poliker rights on the roof and basement floor that were not in accordance with the condominium registration order. In the sense of "a contractual assumption that contradicts the appointment decision", so the defendant put it.