Consent orders
Uniform Civil procedure Rules - 36.1A
When the parties settle after proceedings have been commenced they will have to enter into consent orders to dispose of the proceedings. the correct form is UCPR Form 44 Consent Judgment/Order.
The Court’s power to make consent orders is in r 36.1A.
Ensure the orders are precise as to what the settlement is, including time stipulations for payment of money and contain the necessary orders in relation to the disposal of the proceedings.
For example, where the defendant is to pay the Plaintiff $125,000 and something in relation to costs the orders would be:
- (a) The Defendant is to pay the Plaintiff the sum of $125,000 within 28 days.
- (b) The Defendant is to pay the Plaintiff the sum of $10,000 in respect of costs within 28 days.
- (c) Proceedings dismissed.
If the parties agree that one party is to have judgment the consent orders are:
- (a) Judgment for the Plaintiff in the sum of $125,000.
- (b) The Defendant to pay to the Plaintiff the sum of $125,000 within 28 days.
- (c) The Defendant to pay the Plaintiff the sum of $10,000 in respect of costs within 28 days.
- (d) Proceedings dismissed.
Consent orders where the parties agree to walk away from each can be:
- (a) Proceedings dismissed, and
- (b) No order as to costs.
The parties may agree terms that require performance by one party of an obligation that is not to be the subject of an order of the Court. The consent orders are then:
- (a) Proceedings dismissed,
- (b) No orders as to costs or
- (c) Each party to pay their own costs. and
- (d) The court ‘notes the agreement of the parties that the Plaintiff will accept the sum of $100,000 if paid by the Defendant within 28 days of the date of these orders’.
The agreement may be set out in the consent orders, or in a Deed. However, if the party undertaking performance of the obligation does not perform, the client’s only recourse is to bring further proceedings for breach of the agreement because the agreement is not an order of the Court.
The preferable course is where the parties have negotiated payment of a lesser sum than that claimed or that work be done to satisfy a claim, it is in the client’s interests to require entry of judgment for the higher sum or the sum claimed in damages in respect of the work with an order that the Plaintiff will accept the lesser sum in full and final satisfaction of the claim if the lesser sum is paid within a specified time:
- a) Judgment for the Plaintiff in the sum of $150,000 inclusive of costs.
- b) Proceedings dismissed.
- c) The Court notes the agreement of the parties that:
- i. The Plaintiff will accept the sum of $80,000 in full and final satisfaction of the judgment if that sum is paid by the Defendant within 28 days of the date of these orders.
If there is default in payment the Plaintiff has judgment for the higher sum which is enforceable without having to commence further proceedings and the Defendant has a real incentive to comply. The judgment is enforceable by filing a notice of motion for issue of a writ of execution: r 39.2, a garnishee order: r 39.34 or such other steps that are available in the circumstances.
In Equity matters commenced by Summons consent orders in favour of the Plaintiff will usually follow the form of orders sought in the Summons. See the precedents of Originating Process at Going to Court.
If no settlement is reached the parties are Going to Court.
GOING TO COURT
