If we examine how this rule has been applied in various cases that have been heard in the courts, we will find cases in which the claim of the service provider or the person performing the work has been completely rejected, such as, for example, other municipal requests (Haifa) 4666-10-18 T.M. Yosef 2001 in Tax Appeal v. G.A. Northern Engineers et al., [Nevo], 4 June 2019; There, the District Court ruled that the two parties had joined hands in order to burden the costs of performing work on another party, and thus it was found that both parties acted in bad faith in the relevant engagement, which was executed in contravention of the provisions of the law.
This is also the case in many other cases, in which the court has found it appropriate to obligate the authority to pay a partial payment, at one rate or another, taking into account the considerations outlined in the case law.
Not long ago, this Court (Vice-President, the Honorable Judge Zachariah) ruled in the claim of Hussein Abu Raya (the subcontractor on behalf of the plaintiff in the lawsuit before me) against the municipality that is the defendant here, that it must pay about 50% of the price of waterproofing work on the roofs of schools, which were carried out without a written agreement (Civil Case (Acre) 11037-10-20 Hussein Abu Raya v. Sakhnin Municipality, [Nevo], 14 April 2023).
In another matter, I found that the defendant should be obligated to pay the contractor who carried out work for the renovation of the soccer stadium and its urgent preparation for the game season, at the request of the mayor and without a written contract at all, to pay 60% of the proper consideration for the work performed (Civil Case 60266-10-20 Muhammad Abu Raya v. Irit Sakhnin, [Nevo], 19 June 2023)."
Discussion and Decision:
- In light of the above, on the one hand, real and tangible expression must be given to the non-compliance of the provisions of section 203 of the Municipalities Ordinance and the parties' failure to make a written agreement. On the other hand, in exceptional cases, it is possible to order full or partial payment, taking into account the concrete circumstances of the case, inter alia, the good faith of the parties and the degree of their guilt in the illegal engagement, as well as their conduct and the background to the engagement between them.
- As I noted above, the plaintiff was invited by the defendant as part of a "call for proposals" and carried out the work for the defendant, in accordance with her requirements and satisfaction.
- In this context, I do not accept the defendant's argument that there was any defect in the plaintiff's work. The defendant referred to the final account report prepared by the supervisory company on its behalf. A reading of the report does not indicate work that was not approved or a reduction in amounts due to defective work that was performed. Therefore, the defendant did not meet the burden of proving that there was any fault in the plaintiff's work.
- Moreover, the defendant did not prove her claim that there was no approved budget for the payment of the bill, and this argument was raised by her in general and in vain.
- On August 9, 2022, the council's plenum convened, which was attended by the head of the council, the council's CEO, and other council members. In the minutes that were recorded, reference was given to the project and the need to make the payment to the plaintiff, and the following were recorded in it:
This decision, which approves in principle the payment to the plaintiff, is a strong indication of the defendant's determination of the payment and the fact that the work was indeed required and performed to her satisfaction.
- In our circumstances, we have not been presented with evidence that the plaintiff acted in bad faith and with the intention of ignoring the provisions of section 203. It is precisely the defendant's repudiation of its obligations after the works were approved by the supervisory company and after the council's plenum in the presence of the head of the council, the CEO, and after consultation with the council's treasurer, and there was a family appeal that approved the payment in principle, may be considered a lack of good faith on its part.
- Moreover, I do not accept the defendant's argument that the project is not exempt from a tender and that its publication in the framework of a "call for proposals" is not sufficient to obligate it to pay the consideration. The defendant did not present evidence on the matter, and as a local authority, it is presumed that it is acting fairly and transparently. This duty is derived from its status as a trustee of the public.
The defendant publicized the project, set its requirements for the execution of the work, contacted the plaintiff and agreed to receive her services.
- Therefore, the defendant cannot rely on its omission, to close its eyes and rely only on the non-existence of a written agreement as a reason for its absence of an obligation to pay, after the works were carried out and completed, as stated in the report of the Inspector, and the plenum of the Council, in cooperation with all the relevant parties to section 203, unanimously approved payment in principle to the plaintiff.
- Nevertheless, it is not possible to ignore the conduct of the plaintiff and the contributory fault on her part, which is expressed in the fact that she chose to carry out the work without a written agreement as required by law, and this was not an exceptional circumstance of urgency in carrying out and completing the work beyond the usual times for the renovation of educational buildings (completion of work prior to the start of the school year).
- For the reasons detailed above, after considering the arguments of the parties and the evidence before me, and relying on the case law detailed above and the trends therein, I deem it appropriate to oblige the defendant to pay a partial payment of 60% of the sum of ILS 484,857.44 to a sum of ILS 290,914.4, together with linkage differentials and ILS interest as required by law from the date of approval of the approved account (October 15, 2019).
Conclusion:
- In summary, the defendant will pay the plaintiff the sum of ILS 290,914.4, together with linkage differentials and shekel interest in accordance with the law, from October 15, 2019 until the actual full payment.
- In addition, the defendant will bear the plaintiff's expenses in respect of the court fee in the sum of ILS 6,904.42, together with linkage differentials and shekel interest in accordance with the law, from June 4, 2023 until the actual full payment.
- In addition, taking into account the manner in which the parties chose to end the proceeding without the need for an evidentiary hearing and upon the submission of short written summaries, the defendant will pay the plaintiffs attorneys' fees in the sum of ILS 30,000. The amount will be paid within 30 days. In the event that the sum is not paid as aforesaid, the sum will bear linkage differentials and shekel interest in accordance with the law from the date of the judgment until the full payment is actually made.
- Since no evidentiary hearing was held, the plaintiff is hereby exempted from paying a second fee and the amount paid will be returned to her through an attorney.
The right to appeal to the Central District Court - Lod within 60 days. .