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 [1975] 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:-

  1. Be precise and unambiguous
  2. Have a reasonable time frame to accept the offer or reject it
  3. Refer in the offer as being made pursuant to the Principles expressed in the Calderbank v Calderbank [1975] 3 ALL ER 333
  4. State the costs will be separate to the principal sum being offered
  5. State the offer is “Without prejudice save as to costs”
  6. Be a genuine compromise to the claim
  7. 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:-

  1. Indemnity costs can be awarded to the successful party if the successful party is awarded an amount that exceeds the amount in the offer
  2. Indemnity costs for the unsuccessful party where the successful party gets less than the offer made by the other party

Please contact Peter Adams, Atul Singh or Daniela Ceccattini at Adams and Partners Lawyers for all your Building Law advice.

Written by Peter Adams

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