Al Haje v Elassaad (No 2) - [2024] NSWSC 794

Supreme Court

New South Wales

Medium Neutral Citation: Al Haje v Elassaad (No 2) [2024] NSWSC 794
Hearing dates: On the Papers
Date of orders: 28 June 2024
Decision date: 28 June 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. The defendant is to pay the plaintiff’s costs of the proceedings.
2. The preceding order is subject to the following:
a. The plaintiff’s costs are to be assessed on an ordinary basis up to and including 29 April 2024.
b. The defendant is to pay 50% of the plaintiff’s costs up to and including 29 April 2024.
c. The defendant is to pay the whole of the plaintiff’s costs after 29 April 2024, these costs to be assessed on an indemnity basis.
3. The plaintiff has leave to file a notice of motion seeking orders in respect of the continuation of freezing orders previously made and in respect of the defendant’s dealings with the property situated at xx xxx Avenue, xxx, NSW.
4. The notice of motion should be filed and served within 21 days of the date of these orders.

Catchwords:
COSTS — whether Uniform Civil Procedure Rules 2005 (NSW) r 42.34 applies — where plaintiff recovers less than $500,000 — considerations in reaching a fair and just result caters to both parties — Calderbank offer made by plaintiff — indemnity costs — indemnity costs awarded to plaintiff after date of Calderbank offer

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 42.34

Cases Cited:
Al Haje v Elassaad [2024] NSWSC 689
Calderbank v Calderbank [1975] 3 All ER 333
Cutts v Head [1984] 1 All ER 597
Norris v Routley [2016] NSWSC 147

Category: Costs
Parties: Wisam Al Haje (Plaintiff)
Mohammad Elassaad (Defendant)
Representation:
Counsel:
Mr J Sheller SC (Plaintiff)
Mr M Algie (Plaintiff)
Mr R Perla (Defendant)
Solicitors:
Greg Walsh & Co (Plaintiff)
Elias Gates (Defendant)

File Number(s): 2021/219805
Publication restriction: Nil

JUDGMENT

I gave my primary decision in this matter on 6 June 2024 (Al Haje v Elassaad [2024] NSWSC 689). I awarded the plaintiff damages of $454,340.95. I ordered that costs were to be decided on the papers following written submissions by the parties.
Both parties have now provided written submissions outlining the costs orders that they respectively contend are appropriate. The plaintiff has also sought orders going outside the umbrella of costs. The defendant objects to these orders, and also to the plaintiff’s reliance on parts of an affidavit of Mr Greg Walsh, the plaintiff’s solicitor, dated 20 June 2024.
I will deal with the costs orders and the ancillary orders separately.

The costs orders

The costs orders sought by the plaintiff are the following:

The defendant is to pay the plaintiff’s costs on an ordinary basis up to 29 April 2024.

The defendant is to pay the plaintiff’s costs after 29 April 2024 on an indemnity basis.

The reason that the plaintiff seeks the indemnity costs orders is because he served a ‘Calderbank’ offer on the defendant on 29 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 794
Decision Date: 28 June 2024

CaseChat Overview and Summary

In Al Haje v Elassaad (No 2), the dispute centred on the determination of costs in a legal proceeding where the plaintiff, Al Haje, recovered an amount less than $500,000. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the Uniform Civil Procedure Rules 2005 (NSW) r 42.34 applied to the situation, specifically in relation to indemnity costs awarded to the plaintiff after the date of a Calderbank offer made by the plaintiff. The court was required to balance the considerations of reaching a fair and just result that catered to both parties, including the implications of the Calderbank offer on the costs awarded.

The court examined the relevant provisions of the Uniform Civil Procedure Rules, particularly r 42.34, which deals with indemnity costs where the plaintiff recovers less than $500,000. The court recognised that the Calderbank offer, which was an offer to settle on terms that included indemnity costs, had implications for the costs awarded. The court needed to determine whether the plaintiff was entitled to indemnity costs after the date of the Calderbank offer and if so, how these costs should be assessed. The court had to weigh the principles of fairness and justice in making its decision, taking into account the conduct of both parties throughout the litigation.

After thorough consideration, the court concluded that indemnity costs could be awarded to the plaintiff even after the date of the Calderbank offer. The court held that the Calderbank offer did not preclude the plaintiff from being awarded indemnity costs for the period after the offer was made, as long as the award was fair and just. The court emphasised the importance of considering both parties' interests in reaching a final determination on costs. The court awarded indemnity costs to the plaintiff, reflecting a balanced approach that recognised the need for a fair outcome in the circumstances of the case.

The final orders of the court included the award of indemnity costs to the plaintiff, subject to the terms and conditions set out in the judgment. The court provided detailed directions for the calculation and payment of these costs, ensuring that both parties were clear on the financial implications of the decision. The court's judgment highlighted the importance of adhering to the principles of fairness and justice in cost determinations, particularly in cases involving Calderbank offers and indemnity costs.

Orders