Most residential building disputes are now determined by NCAT, a Tribunal established by the NSW Government.
In dealing with the resolution of a dispute, it is important that you get advice from Adams and Partners Lawyers at an early stage of the dispute.
NCAT’s Act, Regulation and Rules do not recognise a Notice of Compromise as commonly used in the Court system.
The Tribunal does recognise the utilisation of Offers of Settlement commonly referred to as “Calderbank Offers”.
A Calderbank offer is an offer of settlement. It derives its origin from the English Decision of Calderbank v Calderbank  3 ALLER 333.
If drafted properly, the offer can protect either parties in the proceedings as regards an award of costs.
The offer, to be effective, must:-
- Be precise and unambiguous
- Have a reasonable time frame to accept the offer or reject it
- Refer in the offer as being made pursuant to the Principles expressed in the Calderbank v Calderbank  3 ALL ER 333
- State the costs will be separate to the principal sum being offered
- State the offer is “Without prejudice save as to costs”
- Be a genuine compromise to the claim
- State the offer will be used in any application for indemnity costs
A properly drafted Calderbank offer can reap benefits for both parties when litigation is commenced including:-
- Indemnity costs can be awarded to the successful party if the successful party is awarded an amount that exceeds the amount in the offer
- Indemnity costs for the unsuccessful party where the successful party gets less than the offer made by the other party
Written by Peter Adams