"Gali: ... The only thing I want to do right now is officially get the possession. I'll tell you why. Because two days ago we went into the store for her own sake, there was a deer there, I think. After all, there's the office there. And they expelled us from there. Now there's a name, the safe room in the small shop, it is used by them as an office. It's populated, they sit in it. Everything. Now I, even if I want them to start making renovations there, you know how to start making the store, they can't" (p. 145 of the plaintiff's exhibits)
And in response, as stated, Mr. Netanel instructs his employee to vacate the stores immediately:
"Aryeh (Mr. Netanel - Z.W.): So let's make a protocol. (On the phone): Hi Kiko, what's going on? Do we still have an office on the ground floor? At the Science Park. So today give an order to this to vacate the office, to prepare the keys, to prepare the keys...
... Aryeh: .. If there is a set, make a set, if there isn't... You have. Okay, okay. Okay, she'll check. What she lacks, I will give her. But today the office is being evacuated. Okay? But totally. Thank you
Gali: So now they can go in and start" (p. 146 of the plaintiff's exhibits)
Hence, the stores would not have been evacuated of equipment and a person prior to signing the delivery protocol."
- Admittedly, as stated above, we have decided on the issue of the store's official delivery date, i.e., on August 27, 2019. However, the question arises, did the plaintiff receive the keys to the store in order to present the store to potential tenants at an earlier date? Justice Weizmann ruled in the parallel proceeding that in the case where the keys to the stores were delivered to A.P.Z. Housing already on the date of drafting the first delivery protocol of July 29, 2019 (see paragraph 18 of the judgment there, which refers to the transcript, apparently referring to p. 8, paras. 1-6 of the transcript. As for myself, and in relation to the store in front of me, I am impressed by the words of Mrs. Appel, on page 6, s. 27, of the transcript, that she was not able to enter the property). Moreover, in the case before me, the defendant's counsel failed to produce any evidence that the keys were delivered on that date. Moreover, as the transcript shows, the keys were delivered only on August 27, 2019, which is the date of delivery. I will note that the plaintiff's counsel did not question Ms. Appel in this matter (see the plaintiff's attorney's note at p. 45, para. 3), while Mr. Steindam notes that he personally did not receive any keys (ibid., paras. 19-36). It should be emphasized that this is also in line with the amendment to the delivery protocol of the store (as opposed to the protocol of the two stores of Dior A.P.Z.), in which the words "long ago" were deleted and the exact date of delivery was written, 27 August 2019 (p. 73, paras. 2-3 of Mr. Steindem's cross-examination). In the circumstances of the case, I can only determine that the official delivery date of the store in question is on August 27, 2019, and in the case before me, the keys were also delivered only on this date.
Delay in delivery due to lack of fire extinguishing permit
- In the framework of the defense's arguments, the defendant claims that in the absence of the approval of the fire and rescue authority, it was not possible to deliver the store on time. In this regard, I will refer to paragraphs 21-24 of Mr. Netanel's affidavit. Thus, it was claimed that the defendant applied to the National Fire and Rescue Authority already in 2017 to obtain a fire extinguishing permit, in order to obtain Form 4. Her request was rejected in a letter dated November 5, 2017, entitled "Inspection of Fire Safety Procedures - Construction Completion". The inspection itself was carried out on November 2, 2017, following a material change in the building, the essence of which was a plan for changes to the basement of Parking 3, the enlargement of the parking areas and the addition of storage, when many defects were found that required repair by the defendant. Among them, the document contains 11 demands, alongside a note that they were found to be improper. There is also a long list of required documents, some of which have invalid certificates. This document shows that the audit was in fact required, in view of the addition of an additional parking floor, namely the addition of the third basement floor. I will detail some of the requirements, which include the required work in relation to the fire extinguishing wheel, separating the service areas from the rest of the building, installing an access road to the fire truck, rescue windows, a firefighter's control panel, and more. Thus, it was found that the defendant simply did not meet the requirements of the National Fire and Rescue Authority as of the date of the examination. And here the question arises: How does the defendant seek to shift the responsibility in this matter to the plaintiff, especially when the connection between the defendant and the requirements of the Fire and Rescue Authority is unclear?! This is especially so, when a review of the list of defects that was attached shows that this is improper conduct on the part of the defendant herself. In this context, I will refer to the fact that a long list of deficiencies that the defendant should have remedied was attached, and it is not clear whether the accusing finger was pointed at the plaintiff, who insists on her right to receive her store on time. Moreover, given the defendant's use of the plaintiff's store for the purpose of storing her equipment, it is not clear how this claim regarding the lack of regulation of the fire authority's requirements constitutes a shield and a shield for the defendant.
- Even on the merits of the matter, Mr. Netanel finds it difficult to point to any single request by the defendant to the plaintiff, claiming that delays were caused in the absence of the approval of the authorities in the matter (p. 63 and p. 64, para. 22). The only argument that is made in this context is that due to the friendly relationship, Mr. Appel handled the matter himself, and in any case there was no need to inform him of the matter (ibid., paras. 25-26). I cannot accept this argument, both because no evidence was produced in the matter, Mr. Appel was not summoned to testify in the matter, and even if it had been proven that Mr. Appel assisted in handling these matters (and the matter, as stated, was not proven), this does not remove liability from the defendant itself.
Rejection of the defendant's claim regarding delay in delivery due to the need to add a third basement floor
- The defendant has a defense argument according to which she was required to add half a basement floor, after she was given a permit to build 3 basement floors instead of the two floors and half of the floor that was given to her in the first place. The addition of the third basement floor caused, among other reasons (such, according to the defendant), a delay in delivery). I cannot accept this argument for the following reasons:
- First, we will examine the building permits in the matter: the one permit (which was submitted as part of the parallel proceeding. See paragraph 37 of the judgment in the parallel proceeding) is dated 10 March 2016, and the second permit is a permit for changes dated 6 November 2017, which orders the enlargement of the basement, from half a floor to a full floor (Appendix G to Mr. Netanel's affidavit). This permit indicates that it is based, inter alia, on the 2005 Reich/Mac/2005 plan, which was approved as early as February 2008. In other words, the permit for the construction of 3 basement floors was already granted in February 2008, and the failure to construct the third floor, as claimed by Mr. Netanel, stemmed in business implications from the defendant's conduct. It is clear that there is no justification in the circumstances of the case for postponing the delivery. In this regard, I will turn to Mr. Netanel's convoluted answers in his cross-examination (from p. 77, para. 20 to p. 78, para. 19). I will also turn to the clever answers of Mr. Netanel, who testifies at first that he knows how to read building permits (p. 77, s. 24), while later on, when a question is presented to him that confronts him with the claim that in fact the building permit for the three basement floors was given years before work on the project began, because he does not know how to read plans (ibid., paras. 31 and p. 78, s. 15). I will also refer to the rulings of Justice Weizmann in the parallel proceeding, according to which it was possible to build 3 floors from the outset and there was no need to change the plans that demanded that the basements be enlarged, paragraph 37 of the judgment).
- More than necessary, I will note that the defendant's argument on the matter should not be accepted, for the following reasons: Even if we accept the defendant's argument regarding a change in plans (and as stated above, I cannot accept this argument, since the plans were approved many years before the actual completion of the basement floor), then these are plans whose sole purpose is to benefit the defendant. This has nothing to do with the plaintiff, and in any case there is no justification for the delay in delivering the store. Moreover, this is construction on the ground floor, and it is not clear how it is carried out after a high-rise building has already been built. Moreover, I did not find any real-time notice of a delay in delivery due to the addition of half a floor to the basement floor. In any event, I did not find in this argument justification for the delay in delivery.
Rejection of the defendant's claim regarding the delay in the plaintiff's payments as justifying a delay in delivery
- The defendant has a claim regarding the non-payment of the balance of the consideration, as a reason for the delay in delivery. In this context, Mr. Netanel refers in his cross-examination to Appendix 12 to his affidavit, e-mail correspondence between various parties in the bookkeeping of both parties, dated August 20-22, 2018 (Ms. Frida Eliasi on behalf of the defendant, and Ms. Vered Tibi on behalf of the plaintiff). See also at p. 103 of par., paras. 16-37). The correspondence shows that on that date (August 20, 2018), the plaintiff owed the defendant the sum of ILS 1,126,711.80. It seems that the plaintiff also does not disagree with this determination that at that time the defendant owed the aforementioned sum, but the plaintiff's argument is that, in accordance with the agreement, the defendant should have given 7 days' advance notice of the date of delivery, and only after the notice could the balance be transferred. Needless to say, no such notice was given, as stated above.
- In fact, apart from the aforementioned correspondence, which also does not appear as a complaint regarding delay in payment, but rather as a business dispute between the two bookkeepers of the parties, no warning was presented by the defendant regarding the non-payment of the balance. Moreover, even in the transcript, there is no demand regarding payments or delay in any of the payments. Netanel responds to this in his cross-examination and clarifies that in a conversation with Ms. Appel, the subject of the transcript, he never raised a demand regarding the late payments, but rather that everything was conducted with her father, Mr. Appel, and not with her. Mr. Netanel admits that the defendant did not issue any written notice to the plaintiff regarding the allegations of arrears in payments, in view of the personal relationship between him and Mr. Appel (p. 104, paras. 16-21, and p. 110, paras. 4-31). There is, therefore, no way out of determining that this claim is a suppressed claim.
- Moreover, the plaintiff advanced one of the payments to the defendant at the defendant's request, as is evident from the joint letter of the plaintiff and A.P.Z. Housing to the defendant dated February 28, 2019 (Appendix 15 to the Steindem affidavit) as follows:
"Further to your request regarding the payment.