Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: El Assaad v Al Haje (No 2) [2025] NSWCA 17 Hearing dates: On the papers Date of orders: 20 February 2025 Decision date: 20 February 2025 Before: Ward P; Ball JA; Price AJA Decision: 1. Vary order (2) made by this Court on 20 December 2024 and in lieu thereof order that order (1) made by Elkaim AJ on 6 June 2024 be set aside and judgment be entered for Mr Al Haje in the sum of $299,340.95, such judgment to take effect from 6 June 2024.
2. Order Mr Al Haje to pay 50% of Mr El Assaad’s costs of the appeal.
Catchwords: COSTS – Indemnity costs – Calderbank offer – where offer made between primary judgment and appeal hearing – whether rejection of offer unreasonable – whether to include post-judgment interest in determining whether offer is less favourable – whether post-judgment interest accrues from date of primary or appeal judgment
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 98, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 36.4, 42.16, 51.49
Cases Cited: Al Haje v El Assaad [2024] NSWSC 13
Al Haje v Elassaad (No 2) [2024] NSWSC 794
Al Haje v Elassaad (No 3) [2024] NSWSC 1191
Al Haje v Elassaad [2024] NSWSC 689
Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420
Calderbank v Calderbank [1975] 3 All ER 333
Channel Seven Sydney Pty Ltd v Mahommed (No 2) (2011) 80 NSWLR 210; [2011] NSWCA 6
Commissioner of State Revenue v Challenger Listed Investments Ltd (atf Challenger Diversified Property Trust 1) (No 2) [2011] VSCA 398
El Assaad v Al Haje [2024] NSWCA 306
Evans Shire Council v Richardson [2006] NSWCA 61
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Hunter v Roberts (No 2) [2019] NSWCA 235
Kabic v AAI Limited t/as GIO (No 2) [2019] NSWCA 311
Lambourne v Baker (No 5) [2024] NSWCA 241
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
University of Wollongong v Metwally (1985) 60 ALR 68; [1985] HCA 28
Category: Costs Parties: Mohammad El Assaad (Appellant)
Wisam Al Haje (Respondent)Representation: Counsel:
Solicitors:
R Perla with DF King (Appellant)
J Sheller SC with MD Algie (Respondent)
Elias Gates & Associates (Appellant)
Greg Walsh & Co (Respondent)
File Number(s): 2024/242448 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 6 June 2024
- Before:
- Elkaim AJ
- File Number(s):
- 2021/219805
JUDGMENT
-
THE COURT: On 20 December 2024, this Court allowed in part an appeal by the appellant (Mr El Assaad) from orders…
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- Case
- [2025] NSWCA 17
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the *Calderbank* offer, made between the primary judgment and the appeal hearing, was unreasonably rejected, and consequently, whether indemnity costs should be awarded. Specifically, the court had to consider the proper approach to calculating the value of the offer for the purpose of comparison with the judgment, particularly in relation to the accrual of post-judgment interest. The court needed to decide whether post-judgment interest should be calculated from the date of the primary judgment or the appeal judgment when evaluating the offer.
The Court of Appeal varied its previous order and set aside the primary judgment, entering judgment for Mr Al Haje in the sum of $299,340.95, effective from the date of the primary judgment. In relation to costs, the court ordered that Mr Al Haje pay 50% of Mr El Assaad’s costs of the appeal, indicating that the *Calderbank* offer, while relevant, did not warrant a full award of indemnity costs in favour of Mr Al Haje.
Orders
Orders of the court
1. Vary order (2) made by this Court on 20 December 2024 and in lieu thereof order that order (1) made by Elkaim AJ on 6 June 2024 be set aside and judgment be entered for Mr Al Haje in the sum of $299,340.95, such judgment to take effect from 6 June 2024.
2. Order Mr Al Haje to pay 50% of Mr El Assaad’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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