Notwithstanding the fact that no motion was filed by the plaintiff to bring contradictory evidence as stated above, I did not see fit to proceed with this procedural matter, taking into account that the defendants knew of the plaintiff's intention to bring contradictory evidence, and that the "contradictory evidence" presented by him at the end of the day was known to them, and they proceeded accordingly.
- Alternatively, the plaintiff's "contradictory" evidence can be treated as evidence which were submitted to prove the defendants' contributory negligence to the damage caused to him as a result of the representations made to him by them, and therefore they are not evidence to contradict the case law (Civil Appeal 895/80 Netanya Municipality et al. v. Hassan al-Malik et al. [Nevo] (19.4.1983).
- In light of the above, I reject the estoppel claims raised by the defendants.
- Statute of limitations/delays
The defendants claimed that the claim filed in 2021 was statute of limitations in accordance with section 5(1) of the Statute of Limitations, 5718-1958, since the facts constituting the cause of action were known to the plaintiff at the time of signing the sale agreement, i.e., in 2009.
However, since I have determined that the plaintiff did not know about the planning problem of the "apartment" at the time of its purchase, and that he first became aware of this when he received the report of the discovery of an offense in 2015 (see paragraph 14 above), then the claim of limitation falls on its own.
- Alternatively, the defendants argued that the claim should be dismissed due to delay, but this claim should also be dismissed.
"The case law established two necessary conditions for the formation of a delay in civil law: the first, that the delay in filing the claim expresses the plaintiff's waiver of his right; The second is that as a result of the delay, the defendant's condition deteriorated. At times, the case law referred to a third condition, which concerned that the delay was caused by the plaintiff's lack of good faith (see: Civil Appeal 7853/02 Davidi v. Mitzpe Abu Tov Company Ltd., IsrSC 58(5) 681, 693 (2004)). In any event, even if these conditions are met, the court still has discretion to decide the significance that should be given to the claim of delay in the specific case before it (see: Civil Appeal 6182/14 Investelum Holdings inTax Appeal v. Yefet Library Ltd., [published in Nevo] para. 13 (May 3, 2016)). In this context, the mutual interests of the litigants must be taken into account, inter alia. The substance of the claim and the relief sought in its framework are also considered (see: Civil Appeal 2576/03 Weinberg v. Custodian of Absentee Property, [published in Nevo], para. 19 (February 21, 2007)). In any event, the doctrine of delay is limited to exceptional and rare cases, and the heavy burden of proving it rests on the defendant (see: Civil Appeal 9839/17 Habitat inTax Appeal v. CAFOM, [published in Nevo] para. 33 (December 17, 2018))"