If a dispute has reached court, a deed of settlement and release may not be necessary, as terms of settlement can form part of a consent judgment.
If you and the other party reach an agreement after a court case has started, you may be able to write and file:
For a helpful tool to use when writing settlements, see
Checklist: Writing agreements and settlements.
Terms of settlement
'Terms of settlement' is a document that records the agreement to settle a case between parties in dispute.
When you reach an agreement it is a good idea to put the details of the agreement in writing. The written agreement can be added to the court record if you want or if the court makes an order. The agreement doesn't have to be in any specific form.
Any agreement to settle should refer to the court proceedings and what will happen to them now that the matter has been settled. For example, the terms of settlement might say that a consent order or judgment will be given, or a Notice of Discontinuance will be filed.
For an example of what terms of settlement could look like, see
Sample Terms of Settlement in the 'Local Court - small claims' section of this website.
Consent Orders are orders agreed to by both parties to a dispute and then made by the court. If you reach an agreement, you may want to have the court make Consent Orders. Consent Orders are generally easier to enforce than an agreement as they have the same effect as a decision of the court. You can agree that Consent Orders will be filed with the court in your Terms of Settlement and write what the Consent Orders will be in that document.
Consent Orders will usually include parts of the agreement that:
- say what one party has to pay the other, which is sometimes a compromise amount
- say when or how payment is to be made
- say what will happen if payment isn't made, such as the original amount of the claim plus costs and interest being payable
- say whether one party will pay the other party's costs, or if each party will pay their own costs.
Not all parts of the terms of settlement have to be part of the consent orders. There may be some parts that the parties want to keep confidential.
Consent orders should include:
- the names of the parties and the case details
- a list, in numbered paragraphs, of the terms of the order the parties have agreed to
- the names and signatures of each party to the case
- the court seal and signature of the judicial officer (for example a magistrate) who made the order.
Once the court seals (stamps) the consent order it becomes an order of the court.
For an example of what consent orders could look like, see
Sample Consent Order in the 'Local Court - small claims' section of this website.
Notice of Discontinuance
If the parties come to an agreement to settle after a court case has been started, it does not always mean that consent orders have to be filed to finalise the case. Instead, the party who started the case (the plaintiff or applicant) can file a Notice of Discontinuance. A Notice of Discontinuance is a notice to the court that the plaintiff or applicant is withdrawing their claim and does not want to continue their case.
A Notice of Discontinuance will usually be filed if the plaintiff and the defendant have agreed that the plaintiff does not want to go ahead with their claim. If the defendant has filed a defence or entered an appearance (indicated that they will be defending the case), in some cases the plaintiff may need to get the defendant's consent (permission) to file the Notice of Discontinuance, or the court's permission.
In some cases, if you file a Notice of Discontinuance, you may have to pay the other party's costs. Before you file a Notice of Discontinuance, you should get
For an example of what a Notice of Discontinuance could look like, see
Sample Notice of Discontinuance in the 'Local Court - small claims' section of this website.