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 1. 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. 2. 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. 3. I will deal with the costs orders and the ancillary orders separately. The costs orders 1. The costs orders sought by the plaintiff are the following: 1. The defendant is to pay the plaintiff's costs on an ordinary basis up to 29 April 2024. 2. The defendant is to pay the plaintiff's costs after 29 April 2024 on an indemnity basis. 1. The reason that the plaintiff seeks the indemnity costs orders is because he served a 'Calderbank' offer on the defendant on 29 April 2024 offering to resolve the proceedings for $250,000 plus costs. 2. The defendant said the following orders were appropriate: 1. There should be no order as to costs. 2. Alternatively, the defendant should pay 50% of the plaintiff's costs and those costs should not include the briefing of senior counsel. 1. The primary reasoning behind the defendant's suggested orders arises from r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). This rule states: 42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court (1) This rule applies if— (a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and (b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that— (a) for proceedings that could have been commenced in the District Court—the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or (b) for proceedings under Part 2 of Chapter 7 of the Industrial Relations Act 1996—the commencement and continuation of the proceedings in the Supreme Court, rather than the Local Court, was warranted. 1. The proceedings were commenced on 2 August 2021. At that time the District Court had a monetary jurisdictional limit of $750,000. That limit could be waived with the consent of the parties. 2. The plaintiff submitted that when the proceedings were commenced the plaintiff had "a very real likelihood" of a claim exceeding $750,000 because of "the potential value of the paid work as an actor, teacher and Master of Ceremonies". 3. The plaintiff further submitted, in relation to the continuation of the proceedings in this court that: 1. he had been required to obtain freezing orders and an appointment of a manager and receiver of the defendant's assets. This could only have been done in the Supreme Court; 2. there was a potential for "significant factual complexity" in particular in relation to the divergent evidence concerning the events before 24 January 2020; 3. the possibility of relying on tendency evidence created a "potential for legally complex argument to be raised"; and 4. there would have been an unnecessary and costly delay of transferring the matter to the District Court if a different view on quantum was evident following the service of the parties' evidence. A hearing date had already been set so that a transfer would have resulted in the case being delayed with the incurring of extra costs. 1. The defendant responded that: 1. the plaintiff had originally particularised a claim that was less than $750,000; 2. the District Court could exercise unlimited jurisdiction, but the plaintiff had never sought the defendant's consent; 3. the legal issues were not complex. The case revolved around the straightforward issue of whether or not the defendant had acted in self-defence; 4. the simplicity of the case required the briefing of junior counsel only; and 5. the plaintiff did not rely on any expert evidence in support of his economic loss claim. 1. In Norris v Routley [2016] NSWSC 147 Harrison J (as his Honour then was) said this at [11]-[12]: "It is trite to observe that whether or not the commencement and continuation of the proceedings in this Court was justified curiously requires a decision in retrospect about the wisdom of making the same decision looking forward. It is therefore very important to ensure that the benefit of hindsight does not infect a critical analysis of the decision in question, obviously made without the same advantage. The known certainty of what has now transpired should not be used to limit or reduce an appreciation of the very difficult task of assessing or predicting a multifaceted litigious outcome. It is obvious that the rule has nothing to do with comparative judicial competence or cost disadvantages for lawyers. The District Court of New South Wales is favoured with a vast collection of judges of the highest skill and competence with an immense wealth of significant experience. With the departure of scales of professional costs and the universal application of the costs assessment system, there is also no remaining financial incentive for bringing proceedings in one court rather than another. The sole justification for the rule can now only be the rational and efficient allocation of business between courts with equivalent resources that are able to deal with it." 1. It is also trite to observe that the court must try to do justice between the parties, that is to reach, in respect of costs, a fair and just result. In relation to the factors listed by the parties in aid of their submissions, as set out above, I make the following comments: 1. The primary issue on liability was the single question of whether or not the defendant had acted in self-defence. There were certainly other issues that needed to be examined, such as the events before the assault, but they too did not bespeak complexity. 2. The income of an actor is dependent on many things, ranging from the technical aspects of acting to the simple popularity of the actor. The plaintiff did not call any evidence to substantiate his potential. His agent could have given evidence of his possible career path. Other actors could have spoken about his ability as an actor. 3. The necessity to seek freezing orders, and the like, certainly favours the continuation of the matter in this court. Had the proceedings been in the District Court separate proceedings would have been needed in respect of the ancillary orders. 4. Junior counsel ran the case competently for the defendant. The same would apply to the plaintiff. That does not however mean that the involvement of senior counsel was unnecessary or not of assistance to the court. The court can plainly say that the presence of senior counsel was of considerable assistance in the elucidation of the issues to be decided. 1. Taking all of these considerations into account, noting that some favour the plaintiff and some the defendant, I think the fair and just result, at least up to 29 April 2024 is the alternative submission made by the defendant, namely that the defendant should pay 50% of the plaintiff's costs assessed on an ordinary basis. 2. I think the position changes markedly from 29 April 2024. This is when the plaintiff's solicitor wrote to the defendant's solicitor stating that: "We are instructed to make an offer to settle this case for $250,000 plus costs." 1. The offer was expressed to be made "pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333 and Cutts v Head [1984] 1 All ER 597". The offer was open for a week. 2. The offer was for about $200,000 less than the plaintiff ultimately received. Obviously, the plaintiff did far better than the offer. I think the offer was a significant compromise made at a time when the defendant was in a position to make an informed decision about the quantum of the case and the risks involved in liability. 3. The plaintiff was displaying an attitude designed to achieve a compromise of the forthcoming litigation. The defendant was clearly not interested in compromise; reflected in his offer of a verdict for the defendant and his refusal to participate in a mediation. 4. I think indemnity costs should therefore be payable after 29 April 2024. The ancillary orders 1. In addition to the costs orders, the plaintiff also seeks the following orders: 1. On or before 27 June 2024, the Defendant is to: 1. serve on the Plaintiff a copy of the Contract for Sale and all annexures to said Contract for Sale in relation to the sale of the property located at xx xxx Road, xxx NSW; 2. serve on the Plaintiff a copy of any authorities or directions executed by the Defendant in relation to the sale of the property located at xx xxx Road, xxx NSW; and 3. notify the Plaintiff of the net proceeds of sale from the sale of the property located at xx xxx Road, xxx NSW. 1. Upon settlement of the sale of the property located at xx xxx Road, xxx NSW, the solicitor representing the Defendant on the sale of that property is to pay directly into Court the entirety of the net proceeds from the sale of xx xxx Road, no later than 3 days after the date of settlement of the sale; or 2. The Plaintiff seeks an alternative order that, upon settlement of the sale of the property located at xx xxx Road, xxx NSW, the solicitor representing the Defendant on the sale of that property is to pay directly into Court the sum of $552,410.11, no later than 3 days after the date of settlement of the sale. 3. The orders made by Beech-Jones J on 3 September 2021 be continued until further order of the court. 1. Some history is necessary. Bellew J made a freezing order in respect of the plaintiff's assets on 1 September 2021. On 3 September 2021 Beech-Jones J varied the orders. The order was extended by Campbell J on 17 September 2021 and then by Hamill J on 5 October 2021. 2. There were a series of extensions which seem to have continued until 20 February 2024. Then on 9 April 2024 McNaughton J made the following orders: "1. The Defendant to issue and execute a mortgage in favour of the Plaintiff over xx xxx Road, xxx (the Property) in the sum of $400,000, pending the outcome of the substantive proceedings (the Mortgage), within 7 days. 2. Costs of and incidental to the listing today including the costs of preparation of the written submissions dated 8 April 2024 and the costs of the preparation of the affidavit of Gregory Alexander Walsh filed 8 April 2024 are reserved. 3. Note the agreement of the parties that: a) the Mortgage will be lodged for registration by the Plaintiff; and b) the Mortgage will include a term to reflect notation 2(c) made on 20 October 2023, namely that if the Property is sold the Plaintiff agrees to discharge of the Mortgage on the basis that the sum of $400,000 is paid from the sale of the Property into Court within 7 days of settlement of the sale. 4. The parties are granted leave to rely on all evidence served to date. 5. The Defendant to serve any further lay evidence by 12 April 2024. 6. The Plaintiff to serve any lay evidence in reply by 12 May 2024. 7. The Plaintiff to serve any medical evidence in reply by 26 April 2024. 8. The Plaintiff be granted leave to file the Amended Statement of Claim by 12 April 2024." 1. The defendant says the ancillary orders should not be made and objects to them being dealt with as part of my decision on costs. The defendant says that it was only the decision on costs that was reserved for a decision on the papers. This is why the defendant has objected to those portions of the affidavit of Mr Walsh that deal with the ancillary matters. 2. I think there is merit in the defendant's attitude, for two reasons. First, it was only the costs decision that I reserved, so that if the defendant wishes to contest the ancillary orders in an oral hearing, or with evidence, he should be given the opportunity to do so. Second, once I have made the costs orders the plaintiff will be in a position to take the 'usual' steps to enforce the judgment. 3. I therefore decline to make the orders sought by the plaintiff other than the costs orders. I will however grant the plaintiff leave to file any notice of motion that he thinks appropriate in respect of the ancillary orders. Final orders 1. I make the following orders: 1. The defendant is to pay the plaintiff's costs of the proceedings. 2. The preceding order is subject to the following: 1. The plaintiff's costs are to be assessed on an ordinary basis up to and including 29 April 2024. 2. The defendant is to pay 50% of the plaintiff's costs up to and including 29 April 2024. 3. 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. 1. 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. 2. The notice of motion should be filed and served within 21 days of the date of these orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2024