'Settling' the case means that the parties have reached an agreement to finalise the case without the court hearing evidence and making a decision.
The plaintiff and the defendant may agree that the defendant will pay the whole or part of the debt, or agree that the plaintiff no longer seeks payment of the debt. The plaintiff and defendant can also agree on payment by instalments.
The parties need to tell the court about any settlement agreement. Usually, the parties will hand up written Terms of Settlement at court or file a Consent Judgment. For more information, see Settling the case.
No, you don't have to settle the case before the hearing date but you may find that there are benefits from settling a case without a hearing in court.
Some of the benefits of settling a case include:
You cannot make the other party negotiate or settle a case.
If talking to the other party did not work you can try writing to them. You should put the words 'Without Prejudice' on the top of the letter or email if you don't want your negotiations used as evidence in court.
In the letter, you can tell the other party about the benefits that may come from settling the case, such as saving time and money by not going to court.
You could contact Community Justice Centres (CJC) for help. CJC provides free mediation services. For more information, see Mediation.
You will also get a chance to negotiate at the Pre Trial Review, where the registrar should try to help the parties settle the case.
An Offer of Compromise is a formal written offer to settle the case that is used in the General Division of the Local Court. Under the court rules, 'Offers of Compromise' cannot be used in the Small Claims Division of the Local Court.
If you receive an Offer of Compromise letter, you should get legal advice about how to respond.
A 'Calderbank' letter is another kind of letter that can be used to reach settlement in a case.
If you receive a 'Calderbank' letter, you should get legal advice about how to respond.
The plaintiff can discontinue the case at any time either with the consent of the defendant or the leave (permission) of the court before the court makes judgment.
Payment of costs will depend on the agreement between the plaintiff and the defendant and the reason for discontinuing the case.
The plaintiff and defendant may need to get legal advice about this.
A consent judgment is just as enforceable as a court judgment. If the defendant does not pay the judgment debt, the plaintiff can take action through the court to enforce the consent judgment. However, the court cannot enforce anything other than an agreement to pay a fixed amount of money. For example, the court cannot enforce a promise to fix unsatisfactory work or replace faulty goods.
For more information, see Enforcing a judgment debt.
Consent judgment can't be made without both parties signing to show that they agree.
The court has the power to decide if it will allow a consent judgment to be made.
Sometimes the court will decide not to accept the consent judgment because:
An example of a term that is unlikely to be accepted is: "The uncle of the defendant will pay half of the amount owed to the plaintiff".
You should get legal advice if the court rejects the terms of your consent judgment.