Posted on 9 June 2023
This issue came before Rees J in Rodrigues v Custom Oz Services Pty Ltd [2023] NSWSC 379 (17 April 2023). It was an attempt to retrospectively designate a Without Prejudice offer a payment schedule with a view to saying that the subsequent adjudication application was lodged out of time. Rees J pointed out that the document in question was defective as a payment schedule in that it gave no cogent reason for not paying the claimed amount. She also said, as a matter of principle:
50. Finally, the fact that a communication is marked without prejudice tells strongly against it being construed as a payment schedule for the purposes of section 14 of SOPA. The very fact that the communication is marked without prejudice indicates that the purpose of the document is to attempt to negotiate a settlement of a dispute on a confidential basis and without admission. The respondent’s ability to pay the amount indicated in the offer is predicated on the claimant accepting that offer. A respondent’s ability to rely on such a document, before an adjudicator or in subsequent proceedings, is severely undermined by the prima facie inadmissibility of the document. Indeed, taking such a communication into account, absent waiver of privilege by the parties to the negotiation, may result in a manifest error of law: Nouvelle Homes t/as Wilson & Hart v Hatch [2009] WASC 63 at [17], [21] per McKechnie J.
To sum up, a payment schedule is an unconditional undertaking, enforceable under the Act, to pay the Scheduled amount, whether the claimant chooses to pursue the rest or not.
A Without Prejudice offer is an offer to only pay the offered amount if the recipient agrees to accept that sum in full and final settlement and thereby foregoes the balance of the claim.
Please call me if you would like to discuss the above, regards
Peter Merity
