I will also refer (following in the footsteps of Justice Weizmann) to the approach of the Honorable Judge Ilan Dafadi, Vice President, Civil Case (Tel Aviv) 36426-09-16 Roy Ben Yosef v. Aura Israel Entrepreneurship and Investments in a Tax Appeal (November 6, 2020) at paragraph 37, as follows:
"Moreover, granting kosher, according to the defendant's claim, may lead to a circumvention of the provision of section 5A of the Sale Law, which is intended to protect a buyer from delay in delivering the apartment he purchased, by way of an appropriate compensation ruling. Such a situation will allow the contractor to ambush the buyer who, for various reasons, did not pay a certain amount, no matter how small it may be on time, and when necessary, withdraw this claim in order to deprive him of the compensation to which he is entitled."
In other words, in accordance with the principle of good faith, it is not possible to raise a defense claim regarding delay in payment, against a claim concerning delay in delivery. Needless to say, in our case, no warning letter was sent, with all that derives from it, and it appears that this suppressed argument was raised only for the purpose of the proceeding before me. Needless to say, this claim was not claimed as an offset claim, and moreover, no counterclaim has been filed regarding the delay in delivery to date.
Interim Summary
- It therefore emerges from the compilation that the date of delivery, including the date of vacating the store, as well as the date of delivery of the keys to the store in question, is on August 27, 2019. Now we must address the issue of calculating compensation.
Estimating the rent for the store
- In the framework of Mr. Steindam's affidavit, there is no reference to the rental of the store in question, and in his cross-examination (p. 72, paras. 1-16) Mr. Steindem admits that it was not rented prior to the submission of his affidavit, when according to him, a lease agreement with the store was entered into with the Tzipora Skewers restaurant only at the end of 2023 (ibid., paras. 6-7). See also explicitly in paragraph 2 of the summaries of the plaintiff's counsel's reply, in which it is also explained that it was precisely during this period that the Corona pandemic spread and there was difficulty in renting the store). In any event, the Tzipora skewers agreement was not presented to me in the first place, given that Mr. Steindem's affidavit was signed and submitted to the file prior to the actual date of the store's rental. The plaintiff argues that the agreement entered into by Housing A.P.Z. with Cocoa Center in a tax appeal on July 29, 2019 in relation to the two adjacent stores that it owns (Appendix 19 to Mr. Steindem's affidavit, and paragraph 41 of the affidavit; hereinafter: the Cocoa Agreement) should also be applied to the rent in relation to the store in question, given the legislature's determination that the rent will be determined at "an amount equal to the rent of an apartment of similar size and location". These are multiplied by the amounts specified in subsections of section 5a(a) of the Law, in accordance with their applicability on the date of the conclusion of the agreement in question. As stated above, in the absence of an agreement with respect to the store in question, there is indeed no need for an agreement relating to this store, nor even an appraiser's opinion, but proof at the minimum level of proof of a store similar in size and location is sufficient.
- It should be emphasized: in accordance with the Sale of Apartments Law, there is no need to prove the damage caused, as explained in section 5a(a) of this law; This is in contrast to the provisions of section 10 of the Contracts Law (Remedies for Breach of Contract), 5731-1970, which deals with damage that the violator saw or should have seen in advance, at the time of entering into the contract, as a probable result of the breach. In this context, I will refer to case law with respect to the burden of proof imposed on the petitioner to receive rent, as expressed in Civil Appeal (Be'er Sheva) 14808-08-19 Kochav Hanegev - Building and Development Company (1990) in Tax Appeal v. Gavriel Shmalov (December 16, 2019, paragraphs 12-13 of the judgment of the Honorable Justice Geula Levin) as follows:
"This arrangement sought to reduce the power disparity between the parties, and to strengthen the status of the apartment buyer in a way that will ensure the buyer's entitlement to compensation, and will incentivize the contractor to avoid delays in delivering the apartment (Civil Appeal Authority 6605/15 Ilana Shemesh v. Space Construction and Development in a Tax Appeal [published in Nevo] [given on February 21, 2016]). The special compensation arrangement grants the right to compensation without proof of damage. The buyer is not required to prove that he actually spent money or was otherwise harmed by the delay in delivering the apartment. The compensation arrangement also benefits the buyer by placing the compensation in the first eight months on the equal amount of rent for an apartment of similar size and location, multiplied by 1.5, and from the ninth month onwards, the multiplier is 1.25. 13. It was found that the only figure that must be brought before the court in order to determine the compensation is "the rent of an apartment similar in size and location". This figure is part of the components of the claim, and the plaintiff is required to prove it in order to substantiate his claim. Although we are dealing with a compensation arrangement without proof of damage, which is intended to strengthen the status of the apartment buyer and deter contractors from delays in the delivery of apartments, this is still a component that must be proven according to the laws of evidence that are customary in civil law."
- As stated above, in order to calculate the monthly rent, in accordance with the provisions of the Apartment Sale Law, we must require data regarding the rent of the store in question or of similar stores in the area. In the circumstances of the case, the plaintiff attached the Cocoa Agreement to Mr. Steindam's affidavit, where, according to her, the average rent for the entire period is ILS 190, together with a tax appeal per square meter. According to the plaintiff in the affidavit, the following calculation should be made: Delay period: 34.2 months * Rent per square meter in the sum of ILS 190 together with a tax appeal (ILS 222.30)* The area of the store, at a rate of 262.2 square meters = ILS 1,993,417.452. As part of its summaries, the plaintiff petitions to charge the defendant with a delay period of 2 months, i.e., three additional months over and above those specified in the statement of claim, without omitting the grace period, contrary to, as aforesaid, what is required in the statement of claim. According to the plaintiff, it is acting in accordance with the cogent provisions of section 5A of the Sale of Apartments Law, as drafted at the time, according to which the delay from the contractual delivery date must be calculated, without taking into account the grace period. In this context, the plaintiff is required to refer to the case law of other municipal applications 8570/09 Samira Hagoli v. Rishon LeZion Municipality (March 15, 2011, paragraph 21 of the opinion of the Honorable Justice Fogelman), in which three cumulative conditions were set for awarding relief that exceeds what is sought in the lawsuit itself, as follows: A review of the case before me shows that the three conditions required in the case law were not fully met: Indeed, there is a need to clarify the questions in dispute between the parties, and these require the granting of relief. In addition, this is a remedy that derives directly from the requested remedy. The problem is that this remedy was not requested until the summary stage, when the defendant was required to calculate the plaintiff's calculation. And finally, all the evidence necessary for a decision in the proceeding before me was not clarified, including a meticulous method of calculating compensation. I will address this matter immediately. In this context, I will refer to the case law of other municipal applications 8570/09 Samira Hagoli v. Rishon LeZion Municipality (March 15, 2011, paragraph 21 of the opinion of the Honorable Justice Vogelman), according to which - "In this context, the case law pointed to three cumulative conditions, the fulfillment of which the court may award relief even though it was not explicitly requested: the first condition is that justice or the need to clarify the substantive questions in dispute necessitates the granting of the relief. The second is that this is a relief that derives directly from the relief that was requested. The third condition is that all the evidence necessary for a decision as to the remedy in question has been clarified, and in this context, the case law pointed to three cumulative conditions, if fulfilled, the court may award relief even if it was not explicitly requested: the first condition is that justice or the need to clarify the substantive questions in dispute necessitate the granting of the relief. The second is that this is a relief that derives directly from the relief that was requested. The third condition is that all the evidence necessary for a decision as to the remedy in question has been clarified, so that there is no need for further litigation..."
- In this context, I would like to note that on the relevant date, which is the official delivery date, on August 27, 2019, Section 5a(a) of the Sale of Apartments Law (Moving to Amendment 5782-2022 (Amendment No. 9) of July 7, 2022) stipulated that the right to compensation without proof of damage is double the amount of compensation by 1.5 for the first eight months, and multiplied by 1.25 for the period beginning nine months after the contractual delivery date. Accordingly, the calculation of the usage fee is: 8 * 222.30 ILS * 262.2 square meters * 1.5 = 699,444.72 ILS + 26.2 * 222.30 ILS * 262.2 square meters * 1.25 = 1,908,901.215 ILS, for a total of 2,608,345.935 ILS. The problem is that this sum exceeds the amount for which the fee was paid, as well as the limitations of the substantive authority of this panel. Here, too, I will honor and follow in the footsteps of Justice Weizmann in his rulings in the parallel proceeding (para. 47): "The plaintiff cannot sue in her summaries more than the defendant in the statement of claim, since "the precedent is that no adjudicators give the plaintiff more than a swearing-in, even if it became clear during the hearing of his claim that he is entitled to more" (Yoel Sussman, Civil Procedure, 162 (Seventh Edition, 1995)). Similarly, the plaintiff cannot claim monetary relief that exceeds the remedy for which she paid a fee (Civil Appeal Authority 1927/13 Elco Installations and Services (1973) in Tax Appeal v. Noy Electricity and Control Ltd., para. 5 (2013); Civil Appeal 1226/11 Uzi Israel-Pour et al. Yehuda Eliyahu, paragraphs 57-58 (2014)."
- Moreover, and as stated above, the amount stated contradicts the calculation detailed in paragraph 42 of Mr. Steindem's affidavit. In other words, there were a number of faults in the plaintiff's conduct in the matter: First, nothing was mentioned in relation to the calculation of the grace period: neither in the statement of claim nor in the plaintiff's affidavits; Second: the request to create this obligation is born out of where it was only at the conclusion stage; And thirdly, taking into account this calculation will lead me to the conclusion that the amount of the claim will exceed the limits of the substantive jurisdiction of this panel, as well as that no appropriate fee has been paid for the charge in accordance with this calculation. Therefore, I cannot at this stage address the plaintiff's arguments regarding the date of calculating the compensation, and I will base the calculation on a period of only 34.2 months.
Calculation of the store's area and the claim regarding the expansion of a prohibited façade
- As for the calculation of the area of the store, in this matter it was determined in the agreement that it stands at an area of 228 square meters net and 262.2 square meters gross (as detailed in the seventh since in the preamble to the agreement). In this context, the defendant argues for the first time in its summaries (paragraph 44(c) of the defendant's summaries) that the purpose of the use was different, with Mr. Steindem himself admitting that the store was intended for commercial use only in relation to an area of 150 square meters and nothing more. This argument is directed both to the demand for compensation and its calculation, and to the comparison of the store in question with the parallel stores of Dior A.P.Z. which was claimed in the expansion of a prohibited façade regarding the area designated for commerce. It should be noted that the plaintiff herself disagrees with the District Court's determination in the parallel proceeding, according to which the rent in respect of the shops of Dior A.P.Z. should be calculated only in relation to the area designated for commerce, i.e., in relation to an area of 150 square meters, and not in relation to the entire gross area there, which stands at an addition of 272 square meters, and in the business districts a total of 422 square meters.
- In this context, the case law states that:
"It is a well-known rule in civil law that it is the pleadings that fence the dispute, and that the court will rule on the basis of the plea statements alone, and on the basis of the testimonies given in the framework of the claims... and not on the basis of some surprising thing in the testimony of one of the parties, and especially if it was not confirmed by his opponent" (Civil Appeal 397/68, Weiss v. George, IsrSC 23(1) 402, 407 (1969)).