El Assaad v Al Haje (No 2) - [2025] NSWCA 17

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:
R Perla with DF King (Appellant)
J Sheller SC with MD Algie (Respondent)
Solicitors:
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:

[2024] NSWSC 689

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…

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: [2025] NSWCA 17
Decision Date: 20 February 2025

CaseChat Overview and Summary

The dispute in *El Assaad v Al Haje (No 2)* concerned an application for indemnity costs following an appeal. The Court of Appeal of New South Wales was required to determine whether a *Calderbank* offer made by the respondent, Mr Al Haje, was unreasonably rejected by the appellant, Mr El Assaad. A key aspect of this determination involved whether post-judgment interest should be included when assessing whether the offer was less favourable than the ultimate judgment.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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: R Perla with DF King (Appellant) J Sheller SC with MD Algie (Respondent) Solicitors: 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: [2024] NSWSC 689 Date of Decision: 6 June 2024 Before: Elkaim AJ File Number(s): 2021/219805