February 18, 2021 at 12:54 am #398718AitikMember
My matter seeking repairs or costs has progressed in a very positive way.
The OC lawyer advised that the Respondents (OC and Owner) have agreed to settle the matter, i.e. perform repairs or reimburse me (my choice). Unbelievable!
Just wanted to know if you have any insight/reference to info about potential risks of deeds of release contracts? Obviously, they want me to waive future liability.
I am assuming I just have to check there is nothing that could come back to bite me later. Obviously, s106 will over-ride any deed if additional issues arise.
Any insight you can offer would be greatly appreciated.
AitikFebruary 18, 2021 at 2:02 pm #398770Amanda FarmerExpert
s 106 will not necessarily override a deed – you may be giving up rights there. That is certainly something to be conscious of.
It would be dangerous of me to attempt to give you any kind of general guidance on this subject: it all depends on the content of the deed itself.
Amanda.February 18, 2021 at 11:09 pm #398794AitikMember
Noted, many thanks Amanda.February 19, 2021 at 9:43 am #398797AitikMember
Where a party is seeking for another party to sign a deed of release the party being asked should clearly be cautious.
Are you able to offer any advice in relation to Tribunal Consent Orders as an alternative option? Would a Consent Order have the same effect of any Order made by the Tribunal? Would either party have to admit fault with a Consent Order (could OC get out with ego intact)? Would it mean parties are less likely to successfully claim costs? Any other advice you have 🙂
AitikFebruary 23, 2021 at 12:52 pm #398881AitikMember
Hi Amanda, as a follow up query here, can you tell me if it is reasoanble to have a Deed of Release accompany a Consent Order?February 23, 2021 at 9:21 pm #398918Amanda FarmerExpert
A consent order has the same effect as any other order of the Tribunal. When presented with the consent order by the parties, the Tribunal will issue a notice of order recording that the orders have been made, ‘by consent’. If breached, they can be enforced the same way any other orders can be enforced.
If the matter is resolved by way of consent orders it’s very unlikely either party would obtain a cost order. Two reasons:
(a) the party likely to face the demand for costs is unlikely to consent to the orders proposed, unless there is an order “that each party pays their own costs”
(b) if there is no such order and the Tribunal receives submissions on costs, it is unlikely to award costs where the matter was never finally determined by the Tribunal and instead resolved by consent. The Tribunal did not hear both sides of the case and did not make any findings that would assist it in exercising its discretion to award costs.
Consent orders can be drafted so that they don’t contain any admission of fault, but it really depends what the consent orders are achieving. If there is a consent order (for example): “that the Owners Corporation repairs X part of the common property by X date”, the Owners Corporation is certainly going to ‘feel’ that they are admitting fault by consenting to this order (ie: a failure to repair the common property).
In my experience, applicants usually want consent orders, respondents want confidential settlement terms/deeds of settlement and to have applications against them withdrawn.
If the terms are properly drafted in either case, the legal effect is generally the same, but the respondent feels better that they don’t have a ‘judgment’ or ‘orders’ made against them.
Consent orders can be easier to enforce than Deeds (if there is a breach) because you can return to the court/ Tribunal that made them. Deeds have to be enforced in separate proceedings in which you essentially allege breach of contract.
You can ask the Tribunal to enter consent orders that refer to or incorporate a Deed of Release, but the Tribunal may not do it. That’s because it makes the Tribunal look like it’s ‘approving’ the terms of the Deed, when it is not (and cannot).
Amanda.February 24, 2021 at 3:07 pm #398976AitikMember
Thanks heaps and can I confirm that if the Deed requires waiving of liability of rights inferred by s106 of the SSMA this would trump statutory rights as imposed under that section of the Act? Seems unreasonable for a party to request another to give up its rights.
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