Withdrawal or Variation of Offer (Form 12)

Rule 90 of the Magistrates Court (Civil Division) Rules 1998 (Tas) lets a party file and serve a notice withdrawing or varying any offer of compromise that has not been accepted. Form 12 is the court's form for that notice. It identifies the earlier offer by its date and either withdraws it or replaces it with a new sum, a statement about interest and costs, and any conditions. Withdrawal has costs effects: the rule that limits a claimant's costs after failing to beat an offer (r 141(2)) does not apply if the offer is withdrawn (r 141(3)). A varied offer must still meet rule 89(4) by saying whether it includes costs and interest.

When you need it

• You made an offer of compromise (Form 11) and want to take it off the table before it is accepted.
• You want to increase or reduce the amount offered, or change its conditions, in light of new information.
• The case has moved on (for example, more costs have been incurred) and the old offer no longer reflects your position.

1. 1

   Heading and addressee

   Enter the registry, its address, the action number, the claimant and defendant, and in 'To' the party the original offer was made to.

2. 2

   Withdraw or vary

   Name the party who made the offer and their role, delete 'withdraws' or 'varies', and insert the date of the offer of compromise previously filed.

3. 3

   New offer (variation only)

   If varying, state the new sum, who it is offered to, and whether it includes interest and costs (r 89(4)).

4. 4

   Conditions

   Set out any conditions of the varied offer. If you are only withdrawing, strike out the new offer and conditions parts.

5. 5

   Date, sign and footer

   Date and sign the notice and complete the 'filed by' footer with your address for service.

• File the notice at the registry and serve it on the party the offer was made to (r 90).
• Serve it quickly: rule 90 only applies to an offer that has not been accepted. Rule 40(3) methods such as ordinary prepaid post to the address for service are available, but a posted document is only taken to be served 2 business days after posting (r 41(1)(c)); personal service, fax or EDX in business hours take effect sooner (r 41(1)).
• Keep proof of service; service is proved by affidavit (r 43).

• If the other side accepts before your notice is served, you cannot rely on rule 90 to withdraw it. Choose a method of service that takes effect quickly.
• Withdrawing an offer gives up the costs protection in rule 141(2) (r 141(3)). A variation may keep you protected, subject to the Court.
• Like the original offer, a varied offer is kept from the trial magistrate until after final judgment (r 96(2)).