El Assaad v Al Haje (No 2)

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.