These words are also appropriate for our case, and they are all the more lenient when the plaintiff's counsel seeks to challenge some of the accounting determinations in the judgment in the parallel proceeding. In other words, on the one hand, the plaintiff's counsel seeks to rely on the data in the Cocoa transaction, when it is not a transaction of a store of similar size, and on the other hand, they seek to challenge the District Court's determination in relation to those stores.
Counsel for the defendant also refers to the judgment in small claim 54784-02-14 Zehava Iluz v. Gindi Holdings in a tax appeal (June 26, 2014), which also deals with a claim under the Sale of Apartments Law, as well as to civil case 32970-03-22 Or Alon v. Giora Sharbat Real Estate in a Tax Appeal (August 7, 2023, hereinafter: the Or Alon case). All of the judgments presented by the defendant's counsel deal with the provisions of section 5a(a) of the Sale of Apartments Law, and not as claimed by the plaintiff's attorney. I will refer to the judgment of the Honorable Justice Ron Goldstein in the aforementioned Or Alon case (paragraph 18):
"Section 5a(a) of the Sale (Apartments) Law therefore presents two possible alternatives for determining the amount of compensation for delay in delivery, when the buyer is entitled to higher than these: one, the proper rent, multiplied by 1.5 for the first eight months and 1.25 for the rest of the period; and second, the agreed compensation set out in the agreement (without doubling it). In our case, the plaintiffs seek to claim compensation for delay in delivery, based on the first alternative, i.e., the proper rent. In a case such as this, it is a rule that the plaintiff must prove the proper rent, otherwise he may go out with his hands on his head, without receiving any compensation (Civil Appeal (Beer Sheva District) 14808-08-19. Kochav Hanegev - Building and Development Company (1990) in Tax Appeal v. Shmalov (December 16, 2019)). However, the main way to prove the proper rent is to submit an appraiser's opinion, but it is also possible to present additional evidence such as the rent that was actually paid in relation to the apartment itself, but in such a case it is possible for the court to order a reduction in the rent by way of an estimate, in order to reflect the evidentiary deficiency (see and compare, Civil Case (Shalom Rishon LeZion) 39931-10-18 Assis v. Aura Israel - Entrepreneurship and Investments Ltd., Paragraph 17 (July 20, 2021)). I will note, in this context, that the rent actually received for the apartment is not necessarily the proper rent, as stated in section 5A of the Sale (Apartments) Law. After all, an apartment buyer can always add some kind of "upgrades" to the apartment, after receiving it from the contractor, which in turn can lead to him being able to charge higher rents for the apartment that he would not have been able to collect had it not been for the upgrades. Clearly, a contractor should not be obligated to pay for the relative portion of the rent resulting from upgrades and additions that were not in the apartment that the contractor gave to the buyer. Therefore, even though the rent actually collected may serve, as stated, as a certain evidentiary indication, of the proper rent that the contractor must pay to the buyer, in accordance with section 5A of the Sale (Apartments) Law, there was still the way to fully prove the proper rent by means of an appraiser's opinion that does not relate to the subjective data of the apartment, but rather to the objective data of an apartment that is similar to it "in size and location", As stated in Section 5A of the Sale Law (Apartments)."