Deed of Release

Hi Aitik,

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.

Hi Aitik,

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orders, respondents want confidential settlement terms/deeds of settlement and to have applications against them withdrawn.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.