Acceptance of Offer of Settlement (Form 42)

Division 2 of Part 12 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (rr 57 to 65) deals with offers of settlement. A party who receives an offer may accept it, or any part of it, by lodging and serving a notice of acceptance in the approved form on the party who made the offer (r 61). Form 42 is that notice. Acceptance must be within the time allowed by r 60, the offered sum must then be paid within the period in the offer or, if none, within 28 days after acceptance (r 62), and either party may then request judgment in the terms of the offer (r 64).

When you need it

• You have been served with a Form 39 offer of settlement and want to accept it.
• The offer is still open: before the end of the period it specifies (at least 28 days), or within 28 days after it was made if it specifies none (r 60).
• The offer was made within 28 days before the trial date, in which case it may be accepted at any time before judgment (r 60(2)(b) and (3)(b)).

1. 1

   Complete the heading

   Enter the registry, case number and the claimant and defendant as named in the claim.

2. 2

   Identify the parties and the offer

   Select which party is accepting and which party made the offer, and insert the date of the offer of settlement.

3. 3

   Sign and address it

   Date it and have the party or its lawyer sign. In the 'To' lines name the party who made the offer and any other party.

4. 4

   Lodging and contact details

   Tick who is lodging it and give an address for service as required by r 102 (a residential or business address, or the lawyer's place of business) and contact details.

• Lodge the notice through eLodgment on the eCourts Portal, which is mandatory in the civil jurisdiction unless you are exempt (r 98C; Practice Direction 6 of 2021).
• For a signed document lodged electronically, lodge a .docx copy that states the signatory's name in place of the signature, and keep the signed copy (r 98E(3) and (6)).
• Serve a sealed copy on the party who made the offer (rr 61 and 100).
• If payment is not made in time, you may request judgment in the terms of the offer, attaching copies of the offer and acceptance (r 64), or in limited cases withdraw the acceptance (r 63).

• Do not attach the offer itself to Form 42. Offers of settlement must not be lodged or disclosed to the Court except as Division 2 allows (r 58(1)); copies are annexed only to a request for judgment (r 64(2)).
• Rule 61 allows acceptance of part of an offer. The form's wording accepts 'the offer', so if you accept only part, make that clear.
• Withdrawing an acceptance needs the Court's leave, unless the offered money was not paid on time and notice of withdrawal is served within 7 working days after the payment period ends (r 63).