Offer of settlement (Form 39)

Division 2 of Part 12 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) governs offers of settlement. A party making an offer must serve it on the other party in the approved form (r 57(1) and (2)) and must say whether it includes costs and interest up to the date of the offer and, if so, how much relates to each; otherwise the offer is taken to exclude them (r 57(3) and (4)). An offer must not be lodged or disclosed to the Court except as the Division allows, and is taken to be without prejudice unless it says otherwise (r 58). If an offer is not accepted and the judgment is no better for the party who refused it, post-offer costs may be ordered and assessed on a party and party basis (r 65; Act s 25).

When you need it

• You are a defendant and want to offer a sum in full and final settlement of the claim.
• You are a claimant and want to say what sum you will accept in full and final settlement.
• You want to put the other party at risk on costs if it refuses a reasonable offer (r 65).

1. 1

   Complete the heading

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

2. 2

   Choose paragraph 1 or 2

   Keep paragraph 1 if you are offering to pay a sum, or paragraph 2 if you will accept a sum, and delete the other. Insert the amount and the parties' names.

3. 3

   Break down costs and interest

   State the amount of the offer that relates to costs and the amount that relates to interest up to the date of the offer. If you leave this out, the offer is taken to exclude costs and interest (r 57(3) and (4)).

4. 4

   Add other terms

   Set out any other terms, such as the period within which the offer may be accepted (at least 28 days: r 60(1)) and the time for payment (otherwise 28 days after acceptance: r 62).

5. 5

   Sign and complete the details

   Date and sign, name the recipients in the 'To' lines and give your address for service and contact details.

• Serve the offer on the other party (r 57(1)) by delivery or pre-paid post to its address for service, or by email or fax where the Magistrates Court (General) Rules 2005 allow (r 101).
• Do not lodge it with the Court: offers must not be lodged or disclosed to the Court except as Division 2 allows (r 58(1)).
• The recipient must serve a Form 40 acknowledgment within 3 working days after service (r 59) and may accept by lodging and serving a Form 42 acceptance (r 61).
• If accepted, either party may lodge a request for judgment in the terms of the offer, with copies of the offer and acceptance annexed (r 64).

• Be precise about whether the amount is inclusive of costs and interest, because the costs consequences under r 65 compare the judgment with the amount offered.
• If you set an acceptance period, it cannot be less than 28 days (r 60(1)). An offer made within 28 days before the trial date can be accepted any time before judgment.
• The Court's forms page also has Form 41, a notice of withdrawal of offer of settlement.