This fact was not mentioned in the affidavits of the mother and her daughters. When the issue was presented to the plaintiffs' artist in the cross-examination, no satisfactory answer was given. She said that it was the uncle who transferred his apartment to her daughters, but that the matter was hidden from the documents presented. It should also be noted that Mr. Yair joined the purchasing group without connection to this sale, even before he purchased the rights of Ms. Sinai Riklis and Ms. Sinai Chodorov (see the exchange at p. 420).
- Counsel for the plaintiffs raised the opinion, for the first time in their reply summaries, that it is "absolutely possible" that the sale transaction, in which the rights were sold to Mr. Yair, was canceled. However, no evidence was presented in this regard that could substantiate the matter. In any event, these plaintiffs should have declared about the transaction in their affidavits, which they refrained from. A supplementary affidavit on their part was also not subsequently filed, and it was not requested to be submitted.
- On the basis of the evidence presented to me, it is possible to determine that the rights in the plaintiffs' apartment were indeed soldto Mr. Yair.
But here another complexity arises. This is because the parties disagree on the question of who paid the additional consideration component, whether it was the plaintiffs or perhaps Mr. Yair, for his rights in his unit (see the aforesaid at p. 424, Q. 21 - 425, S. 23). Thus, the agreement between the plaintiffs and Mr. Yair was concluded on December 11, 2014, that is, long after the demand for payment. It states that the plaintiffs declare that they have so far paid consideration in the amount of ILS 350,000, which is the total amount of their investment. From this, it seems, prima facie, that the plaintiffs did not pay the additional consideration at all. On the other hand, Ms. Riklis testified that she paid all the money (ibid.).
I am not required to decide this dispute. Insofar as Mr. Yair paid the sum, he is not one of the plaintiffs and this sum was not claimed by him. And insofar as the sum was paid by the plaintiffs, in respect of the sale they received their full investment, or at least they should have received it, and it was not proven before anyone else. The written agreement overrides oral arguments. Hence, they are not entitled to additional compensation.
- Therefore, the compensation component due to the plaintiffs for this head of damage should be reduced to ILS 167,500, which is the amount claimed that these plaintiffs paid (in accordance with what is stated in Appendix 16 to the amended claim, at page 179). Due to the non-disclosure of the sale, which is critical to the resolution of the dispute, these plaintiffs will be liable for the payment of expenses separately from the other plaintiffs.
The Compensation Required for This Component
- I therefore accept this component of the claim, for the completion of the consideration of the land component. The relevant amount of compensation, as stated in the statement of claim, is ILS 763,450; and by deducting the share, as stated above, of plaintiffs 43-44, the sum of ILS 595,950 remains to be compensated, as of 2014, in accordance with the details that appear in the plaintiffs' summaries (see paragraph 323 of their summaries).
- This amount will bear ILS interest from the date of payment, and this liability will be imposed on Adv. Nof and not on Adv. Aharonson. It should be noted that the plaintiffs requested that the payment be linked to the date of filing the lawsuit, which was filed several years later, but it appears that this is a clerical error. In any case, the correct linkage is from the date of payment, of course.
The claim of negligence of the defendants in not preventing the sale of rights in other than the permitted building percentages
- The plaintiffs further claimed that the defendants were negligent towards them by not preventing Ms. Or from selling rights in housing units that exceeded the permitted building percentages.
However, this argument ignores the mechanism that was explicitly set out in the agreements, which was formulated before the individual outline plans were approved, and before it became clear what the exact scope of housing units would be that the project would include. The agreements explicitly stipulated that there might be no units for all members of the group. In such a case, some of them will have to "get out of it" while returning their money, in accordance with paragraph 5.8 of the sharing agreement. Indeed, the contractual system signed by the group members did not specify the number of apartments that the project would include.