An argument raised by a party that was not raised in the first place in his pleadings constitutes a "change of façade" or an "extension of the façade" and should be rejected, especially when it is raised at an advanced stage of the proceeding (see: Civil Appeal 6799/02, Yulzari v. United Mizrahi Bank Ltd., IsrSC 58(2) 145 (2003); Civil Appeal Authority 9123/05, Adamov v. City State (October 25, 2007)). In this case, the argument was raised only at the stage of the defendant's counsel's summaries, it was not examined in the combs of the cross-examinations, and I cannot address it.
- Notwithstanding these things and in view of the determination of the court's expert, I decide that the area should be calculated as a net area, and all as detailed to Kaman.
Calculating Rent by Size
- Notwithstanding the aforesaid, a difficulty still remains, given that, as the plaintiff's counsel admits in their summaries, the store was not rented for a long period of time, and they wish to put their faith in the Cocoa Agreement in this regard. The problem is that in relation to the Cocoa Agreement, in this case, the District Court conducted several accounting manipulations in the parallel proceeding, such as: a reduction in the investment amount in the sum of ILS 1 million for a period of 5 years and a waiver of rent payment for a period of 5 months. As stated above, in contrast to the provisions of the Drug Contracts Law , we are not required to prove actual damage, and it is sufficient that the plaintiff produced data regarding rent in a store of similar size and location, and these were indeed invented: We are dealing with a cocoa agreement in a store in the same location, even though it is almost twice its size. Moreover, as stated above, as part of the Cocoa Agreement, Housing APC invested ILS 1 million in the two stores, along with a waiver of rent for the first five months (August-December 2019). This sum was deducted in the framework of the judgment in the parallel proceeding from the relative amount of the rent. And the question arises: Does the lack of rental of the store in this case stem from the fact that certain rents were demanded, which in the end the plaintiff was unable to receive?
Another question that we must ask in this context is in relation to the size of the store (when, as noted, we must relate to a store of similar size): Is it possible to project rent resulting from renting stores in a certain area onto another store that is about half the size of the first two stores? In this context, Mr. Steindem was asked in his cross-examination whether it is indeed possible to throw the two of them into the naïve, and he replies that it is indeed possible to learn from these stores about the store in question, and in his estimation, the rent per square meter in a small store is supposed to be higher than in a large store (p. 62, paras. 32-33). It was further claimed that Housing A.P.Z. invested in the two stores, as aforesaid, a sum of ILS 1 million and waived the rent for a period of 5 months (p. 68, paras. 19-32). In the circumstances of the case, and given the accounting manipulations carried out by the District Court in the parallel proceeding with respect to the Cocoa Agreement, as well as the fact that we are dealing with different sizes of stores (which differ in their areas), and since the store in question was not rented until recently, I find it difficult to project the rent of the two stores of Dior A.P.Z. on the value of the rent of the store in question.
- As stated above, the claim lacks an appraiser's opinion in relation to the customary rent in a store/apartment similar in size and location. In this context, counsel for the defendant refers to the ruling in Civil Case 36426-09-16, Ben Yosef et al. Aura Israel - Entrepreneurship and Investments in a Tax Appeal (November 6, 2020). According to the plaintiff's counsel, the cited case law deals with a claim that does not deal with the Sale of Apartments Law, but this argument is inadvertently founded (in this regard, see the quote in paragraph 39 of the judgment) and this is how it was ruled there (paragraph 40):
"The plaintiffs did not attach an appraiser's opinion from which it is possible to learn from the rent of an apartment similar in size and location. Plaintiffs 13-14 did attach to the statement of claim (and not to the affidavit) a rental agreement signed on August 30, 2015, according to which the couple of plaintiffs 13-14 rented out their five-room apartment in the sum of ILS 6,000 per month. This does not satisfy the proof required regarding the rent of a similar apartment in the area during the delay period, which is between December 31, 2014 and the date of delivery of their apartment on May 6, 2015. It is not known whether the amount of rent was affected by the date of its rental about 8 months after the contractual delivery date, in August, which may be due to the summer and the proximity to the beginning of the school year, enjoying particularly high rental prices or due to specific circumstances related, for example, to the apartment, the identity of the tenant or other unknown circumstances. One specific transaction is not enough to determine that this is indeed the rental value of a similar 5-room apartment in the area. This certainly does not indicate that apartments have a different number of rooms. The best way to prove the amount of rent for an apartment that is similar in size and location at the relevant times is by submitting an appraiser's opinion. The plaintiffs did not do so. In light of this, the compensation must be calculated in accordance with the provisions of the agreement."