Notice of acceptance of offer to compromise (Form 46)

Part 25 of the Federal Court Rules 2011 provides for formal offers to compromise made in Form 45. The party who received the offer (the offeree) accepts it by serving a notice of acceptance in accordance with Form 46 on the offeror at any time while the offer is open (r 25.08(3)). An offer stays open for the time stated in it, which cannot be less than 14 days after it was made; if no time is stated it can be accepted any time before judgment (r 25.08(1), (2)). Acceptance creates the compromise, and the rules then deal with payment, costs and enforcement.

When you need it

• You have been served with a notice of offer to compromise (Form 45) and want to accept it.
• The offer is still open: within the time stated in the notice, or before judgment if no time was stated.
• Not for counter-offers. To propose different terms, serve your own Form 45.

1. 1

   Heading

   Copy the file number, District Registry, Division and party names exactly as on the offer.

2. 2

   Address it to the offeror

   Insert the role of the party who made the offer, for example First Respondent.

3. 3

   Identify the offer

   Insert the role of the accepting party and the date of the offer being accepted. If there have been several offers, make sure the date matches the one you mean.

4. 4

   Date and sign

   Sign as the party or as the party's lawyer (r 4.02).

• Serve the notice on the offeror (r 25.08(3)). Keep proof of the date and method of service.
• A money offer is taken to be payable within 28 days after acceptance unless the offer says otherwise (r 25.04).
• If the offer did not include your costs, you may tax costs on a party and party basis against the offeror up to and including 14 days after the offer was made (r 25.12).
• The no-communication rule for without prejudice offers ends once the offer is accepted (r 25.06(2)(a)), so the parties can then tell the Court and seek orders to finalise the proceeding.

• If an accepted money offer is not paid within 28 days or the time in the offer, you can apply for leave to withdraw your acceptance (r 25.09).
• If the offeror does not comply, you can apply for orders giving effect to the accepted offer, or staying, dismissing or striking out, as the case requires (r 25.10). Check rule 25.11 where there are several respondents who may be jointly liable.
• Read the offer's costs term before accepting: it will say whether it is inclusive of costs or costs are in addition (r 25.03(1)).