According to the plaintiff's counsel, in this letter as well, the defendant does not claim that the store has already been delivered, but rather the discussion is in relation to the terms of delivery of the store (I will turn to the questions posed by the plaintiff's counsel at p. 49, paras. 8-14, and at p. 50, paras. 9-14). In response, Mr. Netanel responds that the plaintiff should have completed the payment of the consideration (ibid., paras. 19-20. See also: from p. 51, s. 26 to p. 52, s. 39. This is related to the issue of the date of delivery, but throughout his cross-examination, Mr. Netanel finds it difficult to point to a specific date that he defines as the date of delivery!). The problem is that the matter does not arise from what is stated in the letter of Appendix H, which is addressed in general to the A.P.C. Housing, as stated. It should be noted that in the margin of the letter (paragraph 3) the defendant refers to the issue of the consideration, claiming that it was lower than the market price, in view of the relationship between the parties, and that the defendant would not agree to give a discount in relation to the price stated for the store, but nothing was said about the non-payment of the consideration or part of it. In this regard, I will turn to Mr. Netanel's evasion of the questions of the cross-examination in relation to the lack of a warning regarding the payment of the consideration (p. 50, paras. 19-39).
- At this stage of his cross-examination, Mr. Netanel pulls out different dates for the delivery of the store, while noting that he is not on the dates. It should be said by now that not only is Mr. Netanel not present on the exact dates, but he does not even control the question of the approximate date of delivery of the store: whether at the time of the issuance of Form 4, which constitutes a certificate of occupancy, dated October 28, 2018, as stated in paragraph 28 of Mr. Netanel's affidavit; The mother 5 months earlier, as he claimed; the mother in May 2018 (p. 49, paras. 34-39); In June 2018, when the building was finished, according to him, etc. (see: p. 49, paras. 8-39, when Mr. Netanel emphasizes that he does not remember the dates. , para. 25); Or perhaps on the date defined by him as the date on which Mr. Appel received the keys (p. 53, paras. 5-6). This is especially true when Mr. Netanel claims that Mr. Appel received possession of all three stores together (i.e., two APC stores and the store in question), but he is not sure of this (p. 53, paras. 22-23). In other words, Mr. Netanel is unable to distinguish between the delivery dates of the three stores. The impression that arises so far from Mr. Netanel's testimony is that we are dealing with confused, incoherent, unorderly testimony and inconsistent with the few correspondence of Mr. Netanel himself.
- A review of Mr. Netanel's testimony shows that he fails to point to the date of delivery of the store and presents several versions on the matter, without any written support, orally or in any other way. Moreover, Mr. Netanel himself admits that it was indeed only on August 27, 2019 that he instructed one of the defendant's employees to vacate the store from the items stored there by the defendant. In other words, the store has not been vacated by this date. Therefore, I cannot accept Mr. Netanel's version on the matter.
Testimony of Adv. Braunstein
- I will now move on to the short version of Adv. Braunstein, the defendant's legal advisor, who also participated in the meeting, who testifies to herself in paragraph 4 of the affidavit that she did not know in real time the status of the project and all the details about it.
- First, I will refer to Adv. Braunstein's argument in paragraph 2 of the affidavit, which relates to an email message sent to her by Ms. Appel on June 25, 2019 (Appendix D to Ms. Appel's affidavit). In her statement, Ms. Appel writes that she is still waiting for the handover of possession of the stores, in accordance with the agreement. On June 27, 2019, Ms. Appel sent Adv. Braunstein a reminder in another email. A few minutes after the reminder, Attorney Braunstein informs her in reply that Mr. Netanel had traveled for a few days and that there was pressure in the office. She also undertakes in the same message to update Ms. Apple the following week. In this context, Adv. Braunstein writes at the end of paragraph 4 of the affidavit that the attempt to learn from this correspondence that she agreed that the possession was not made on the contractual date of delivery is unfounded. In the course of her cross-examination, Adv. Braunstein was unable to clarify what she meant by her statement, when she stated that Mr. Netanel had traveled, whether she meant that Mr. Netanel had traveled abroad or whether he had just left the office, while emphasizing that she did not testify to what she did not remember (p. 23, paras. 18-29).
- I will also focus on Adv. Braunstein's version in paragraph 5 of the affidavit, in which she reports on the meeting, in which Mr. Netanel clarified several times that possession of the store was given upon receipt of Form 4, when according to her, the plaintiff also agreed that possession had been given even earlier, but no official delivery was made, since he was not a tenant of the property. In this context, Adv. Braunstein added that over the years the interface was with Mr. Appel and Ms. Appel and not with Mr. Steindam. However, when she is asked in her cross-examination about the date of delivery itself, and about Mr. Netanel's reference to the alleged delivery on the day of the submission of Form 4, she fails to point out where in the transcript it appears that possession of the property was indeed given upon the submission of Form 4 (from p. 23, s. 30 to p. 25, s. 8).
- With regard to the wording "long ago" in the delivery protocol of the stores, Adv. Braunstein clarifies that she herself was not a party to the discussion on the matter, and that she functioned as a "clerk", as she defined it, when she was required to add this phrase to the delivery protocol (from p. 26, para. 36 to p. 27, para. 11). In the margins, I will note that (as will become clear later) Mr. Steindem deleted these words. More than necessary, it should be noted that in view of Mr. Netanel's testimony that the defendant did indeed store building and office materials in the store even after the alleged date and very close to the date of the signing of the delivery paragraph, I will not require this wording in the delivery protocol.
- As for Form 4, Adv. Braunstein clarifies that she was not involved in the project and that she does not know when Form 4 was received in respect of it (p. 27, paras. 28-32). However, she admits that Ms. Appel was in contact with her regarding the partitions between the stores (p. 28, paras. 4-9), while noting that she does not remember the correspondence on the matter, and that in view of the email correspondence in her possession, it would be difficult to locate the correspondence on the matter. In this context, Adv. Braunstein notes that she serves as the legal advisor to the plaintiff, a large real estate company, which is currently building about 1,000 housing units, and therefore she does not recall any conversation with Ms. Appel regarding the allegations regarding the delay in delivery (from p. 27, s. 34 to p. 28, s. 39).
- Braunstein is repeatedly asked in her cross-examination whether she can point to the date on which the defendant invited the plaintiff to come and receive the property before the date of the meeting on August 27, 2019 (see, for example, p. 31, paras. 36-37), and she avoids answering this, and finally responds that a notice was indeed given (p. 32, s. 13), but she cannot point to an official written notice.
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- Needless to say, Adv. Braunstein also fails to bring any evidence for her words, in a manner that contradicts the agreement of the parties in the agreement between them. As stated above, according to Adv. Braunstein herself, she was not familiar with the status of the project in real time, and in fact she relies in this matter on what she heard from Mr. Netanel. Needless to say, even in her cross-examination, Adv. Braunstein fails to shed light on the date of delivery of possession of the property, and her testimony does not in any way support the defendant's version.
Failure to summon Mr. Zvika Appel to testify - who bears the burden?
- As stated above, in contrast to the parallel proceeding, and despite the fact that Mr. Appel initially appeared on the list of witnesses on behalf of the plaintiff, in the end, the plaintiff did not produce any affidavit on his behalf and he was not even summoned to testify. During the course of the proceedings, it emerged that Mr. Appel had cancer, but, as stated, it appears that this matter did not prevent him from testifying in the parallel proceeding.
- In its summaries, the defendant argues (see: paragraphs 5-6 of the defendant's counsel's summaries) that the defendant's failure to summon Mr. Appel to testify is the defendant's obligation, in accordance with the rule, according to which the failure to summon a witness is the obligation of the party who should have summoned him (see: Civil Appeal 641/87 Ze'ev Kluger v. Israel Tractors and Equipment Company Ltd., IsrSC 44(1) 239; Civil Appeal 465/88, Bank for Finance and Trade in Tax Appeal v. Salima Matityahu et al., IsrSC 48(4), 651, 658; Civil Appeal 8382/06, Koresh Botach v. David Cohen (26 August 2012, at para. 28); Civil Appeal 373/54 Aaronst & Gordon executing the will of the deceased Rabbi Fishel Neumann vs. Chava Neumann PD 10 1121, 1142; Civil Appeal 548/78, Noa Sharon v. Yosef Levy, IsrSC 35(1) 736 [1980], at paragraph 3 of the judgment of the Honorable Justice Ben Atto).
- The defendant further seeks to claim (in paragraphs 11-14 of its summaries) that Mr. Appel agreed to the delay in delivery, agreed to the changes made to the building, and signed the application for a building permit even after the contractual delivery date, while his consent to amend the plan naturally also affects the delay in delivery, which according to the claimant was done on his own. The plaintiff disagreed with the defendant's position on the matter.
- For myself, I see things differently from the defendant's point of view, when in my opinion, it was the defendant who was required to summon Mr. Appel to testify on her behalf, and this, in view of her admission that indeed in accordance with the written agreement, she should have handed over possession of the property as agreed, but according to her, it was Mr. Appel himself who permitted the delay in the delivery of the property, was aware of the difficulties and all the delays in the matter, and was a partner in the various solutions. and even gave his consent (thus, according to the defendant) to delay the delivery of possession of the store. We are concerned, therefore, with the claim of admission and dismissal.
- This is especially true in light of Mr. Appel's own letter, dated August 13, 2019 (Exhibit A/1). This is a letter that Mr. Appel sent to Mr. Netanel, which refers to the protocol of the initial tour conducted with Mr. Nissim on behalf of the defendant, in the store, on July 18, 2019. According to Mr. Appel in his letter, the purpose of the tour was -
"Initial delivery protocol for the completion and execution of the delivery that we are supposed to ... to receive them according to the technical specifications between the parties."