Home » Offers to Settle and Seeking Recovery of Costs
Written by: Braden Milburn

When can an offer to settle be made?

When disputes arise, an offer to settle may be made at any time throughout the course of the matter.

Why present an offer to settle? 

If early settlement is possible in the circumstances, then resolving a matter by agreement will reduce the significant burden of stress, time and cost that can come with the commencement of proceedings before a relevant Court or Tribunal.


What does an offer to settle include?

When presenting an offer to settle, there are basic principles to ensure the offer is acceptable at law and, of course, appealing to the other party.

This means ensuring that:

  1. The offer is fair and reasonable;
  2. The logic behind the offer is clear;
  3. It appears to propose a genuine compromise.


What about if offer is rejected? 

An offer must not be unreasonably rejected.

In the event an offer is not accepted, that correspondence may be relied upon as to the issue of costs. This means, where a fair and reasonable offer is rejected, an order for “Costs” may be sought later on for indemnity costs back to that date of the offer, and on a standard basis prior.


What is a “Costs” order?

Costs, like any proceeding before the Court, is an argument that will either be accepted or rejected based upon the evidence presented. When seeking costs, we show the Court an array of features relevant to your case, most prevalently that the proceedings could have been avoided if not for the other side’s conduct in unreasonably rejecting an early offer to settle.

An order for costs is not guaranteed, though the Court has made significant findings in circumstances where a fair and reasonable offer to settle was made and rejected, thereby forcing the need for proceedings that otherwise ought to have been settled.

In the recent decision of Teo & Anor v Twyford bht Cunningham (No 2) [2023] NSWSC 1626, Justice Henry remarked that an offer to settle must “embody a genuine compromise and be shown by the party seeking to rely on it that it was unreasonable for the unsuccessful party not to accept it”.

Such remarks serve as a key reminder to parties, on either side of a proceeding, of the importance of carefully considering the basis of their offer to settle, or carefully considering the potential consequences that may follow in the event they reject an offer that might be considered fair and reasonable.


Contact Us

At Greenhalgh Pickard, our solicitors are both adept and capable of discussing your options and engaging in negotiations that aim to achieve the best possible result for you.

If you are engaged in a dispute, contact our office for advice on a resolution today.



The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.