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

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

Although Mr Al Haje achieved a judgment more favourable than his Calderbank offer (if post-judgment interest is included up to the date of the offer and judgment is entered from 6 June 2024), it was not unreasonable for Mr El Assaad to reject the offer at the time it was made, given the extent of damages in dispute, the state of proceedings, and some ambiguity regarding the offer. Accordingly, the appropriate order is that Mr Al Haje pay 50% of Mr El Assaad's costs of the appeal. The judgment is to be entered for Mr Al Haje in the reduced sum, effective as of 6 June 2024.

Parties
Appellant: Mohammad El Assaad; Respondent: Wisam Al Haje
Jurisdiction
Australia
Judgment Date
20 February 2025
Procedural Posture
Appeal / Costs and Ancillary Orders Determination Following Part Allowed Appeal
Outcome
Orders made varying previous judgment and awarding costs as set out below.
Legal Topics
Indemnity Costs, Calderbank Offers, Post Judgment Interest, Freezing Orders
Civil Procedure Costs Indemnity Costs Calderbank Offers Post Judgment Interest Freezing Orders

Case Brief

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Parties

Mohammad El Assaad

Appellant

Wisam Al Haje

Respondent

Procedural Posture

Appeal / Costs and Ancillary Orders Determination Following Part Allowed Appeal

Legal Issues

  1. 1 Whether the rejection of a Calderbank offer was unreasonable justifying indemnity costs
  2. 2 Whether post-judgment interest should be included in determining if the judgment award was more favourable than the Calderbank offer
  3. 3 Appropriate date for judgment to take effect for the purpose of interest accrual

Ratio Decidendi

Although Mr Al Haje achieved a judgment more favourable than his Calderbank offer (if post-judgment interest is included up to the date of the offer and judgment is entered from 6 June 2024), it was not unreasonable for Mr El Assaad to reject the offer at the time it was made, given the extent of damages in dispute, the state of proceedings, and some ambiguity regarding the offer. Accordingly, the appropriate order is that Mr Al Haje pay 50% of Mr El Assaad's costs of the appeal. The judgment is to be entered for Mr Al Haje in the reduced sum, effective as of 6 June 2024.

Court Disposition

Orders made varying previous judgment and awarding costs as set out below.

Orders

  • 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.
  • Order Mr Al Haje to pay 50% of Mr El Assaad's costs of the appeal.