The plaintiff's arguments
- According to the plaintiff, during the period of delay, the defendant used the area of the store for its own needs as a storage area for construction materials and tools, for the purpose of completing the construction of the defendant's parts (in accordance with the sharing agreement) in the project. The defendant rented all of its parts in the project to a third party - Elbit and carried out the finishing work on these parts in accordance with the agreements between it and Elbit, and therefore was required to find a place to store the building materials and tools, with the defendant choosing the store as storage area. Only at the end of August 2019 did the plaintiff build the separation walls between the stores on the ground floor, in accordance with the plans and specifications, and only then was a connection to electricity and water within the store's boundaries made. Even then, the store was not delivered in accordance with all the specification requirements.
- According to the plaintiff, her requests to the defendant to vacate the store and complete it were not answered at all, or were answered with answers that were not of the same kind. Thus, for example, in response to the plaintiff's arguments in the letter of attorney dated June 1, 2018 (Appendix 4 to the statement of claim) regarding the delay in delivery, the defendant referred in its letter of June 10, 2018 (Appendix 5 to the statement of claim) to a letter from Housing A.P.C. dated May 28, 2018 (Appendix 6 to the statement of claim) which dealt with a similar matter of completing the delivery of the two additional stores to P.T. Housing, and to the defendant's reply to A.P.C. Housing dated June 3, 2018 (Appendix 7 to the statement of claim). When it is not clear what is the connection between the claims of the A.P.C. Housing and the claims of the plaintiff in this case. Thus, the defendant refers to the aforementioned reply to A.P.Z. Housing, in which the defendant argued that from the date of the sale of the store in question (alongside the two additional stores owned by A.P.Z. Housing), the physical division between the three stores (the two stores that were supposed to be delivered to A.P.Z. Housing, and the store in question) should be carried out between the plaintiff and A.P.Z. Housing. According to the plaintiff, this is a claim that has no substance, as it was never agreed with the plaintiff that there would be no division between her store and the other stores. It was also claimed that the store was delivered with considerable delay.
- For the sake of completeness, it should be clarified that one of the plaintiff's shareholders (who indirectly, through A.P.Z. Housing, holds a small part of its shares) is Mr. Zvi Appel (hereinafter: Appel or Zvika), alongside Mr. Lior Steindem (hereinafter: Mr. Steindam) and alongside A.P.Z. Housing itself, which is one of the plaintiff's shareholders in the thread (see the plaintiff's attorney's statement at p. 23, paras. 8-9 of the hearing of January 1, 2024). See also the details regarding the consolidation of shares in the plaintiff in paragraphs 20-21 of the affidavit of Mr. Steindem's main testimony). It should also be noted that the plaintiff was established in July 2015, prior to the conclusion of the agreements in the matter (see the statement of the plaintiff's counsel at p. 102, paras. 6-8 of the hearing of March 4, 2024).
- It was copied fromNevo the plaintiff petitioning for compensation due to a claim of delay in delivery, as aforesaid, for a delay of 34.2 months * ILS 190 per square meter * 262.2 square meters, with the amount calculated in accordance with the guidelines of section 5a(a) of the Sale of Apartments Law, according to its relevant wording at the time of delivery. Interest and linkage must be attached to this amount. The plaintiff placed her claim in the sum of ILS 2,275,273.
The defendant's arguments
- According to the defendant, the claim should be dismissed, given the conduct of the plaintiff's manager, Mr. Appel, who was aware of the objective delays that caused the delay in the delivery of the property, approved them orally and even assisted the defendant vis-à-vis the various authorities as follows: The plaintiff is managed by Mr. Appel, who holds a chain of half of the shares in the company and serves as a director thereof. On February 25, 2014, a partnership agreement was entered into between another company owned by Mr. Appel, namely A.P.C. Housing, and the defendant, according to which two stores on the commercial floor would be designated for A.P.Z. The partnership agreement also stipulated that the defendant would have the rights to the remaining areas in the project, including an additional store on the same commercial floor. On April 2, 2014, an agreement was signed between the defendant and A.P.Z. Housing for the provision of construction services, according to which the defendant would build for A.P.Z. Housing the two stores that were allocated to it as part of the sharing agreement. On July 21, 2015, the defendant agreed to sell the third store, the store that is the subject of our lawsuit, to the plaintiff, and the agreement was signed. The relationship between the plaintiff and the defendant was one of close cooperation. Although the defendant was in charge of carrying out the construction, the plaintiff was involved in it; and Mr. Appel was like a member of the defendant's office. Mr. Appel managed everything related to the agreements with the defendant, both on behalf of A.P.C. Housing and on behalf of the plaintiff. Against this background, it should be understood that the conduct was not formal and that there was mutual agreement at every step. This is also the case with regard to construction, the changes made during it, and the process of obtaining Form 4 from the local planning and building committee, as well as with regard to the date of delivery.
- According to the defendant, the plaintiff admitted that the defendant complied with all the provisions of the agreement, and that Dark Guard saw that the delay in completing the work was not due to the defendant's omissions, so it was agreed between him and the defendant that the plaintiff would not insist on the delivery date of October 21, 2016. According to the defendant, she relied on this consent. Moreover, on August 27, 2019, after the plaintiff had already raised claims on her part regarding the delay in delivery, she signed the delivery protocol, which should be considered as a waiver of the plaintiff's claims regarding the delay in delivery.
- The defendant also claims that the plaintiff did not make the payments on time, contrary to the provisions of the agreement. Clause 16.3 of the sale agreement states that the performance of the defendant's obligations is subject to compliance with the following payments:
"The performance of the company's obligations under the contract is conditional on the buyer first fulfilling his obligations under the contract, in full and on time."