If you have to write a legal document, it can be hard to work out where to start. The documents you write should be clear and effective.
For a helpful tool to use when writing a legal document, see Checklist - Writing.
Before you start to write your document, you should read all the documents relating to your case. This can help you understand the issues that are in dispute. It can also help you refresh your memory. If you are having trouble reading the documents, think about whether there is someone who might be able to help you, for example, a friend or staff at your local community centre.
For more information on how to read legal documents, see Reading legal documents.
Before writing your legal documents, you should plan what you are going to write. You should think about:
Having a plan will ensure the documents you write are clear and effective.
Once you have written a draft of your document, you can use the information below to prepare revised drafts of your legal document until you are happy with the final version.
You should make sure that the document you write is presented in an easy-to-read and common format. It's best to type your document on a computer, however, if you have to hand-write it you should make sure your handwriting is clear and able to be read by others. You may be able to access computer facilities at a library, school or internet cafe. Any typed document should:
You should make sure that your document doesn't confuse the reader with large chunks of text, or tiny letters and words. The use of spacing is a simple and effective way of making your document easier to read.
Remember to:
It is important to read over your document a few times and check your spelling and grammar. Poor spelling and grammar may make your document difficult to read and may also affect the way the reader understands and interprets your document.
Remember:
Although being involved in legal disputes can be emotional, you should avoid using emotional language when writing legal documents. Swearing should be avoided at all costs, as it can make the situation worse.
Keep in mind that what you write may be read by a lawyer or court staff and they may not know your case as well as you do. They will not have invested as much time and energy into it as you have. Don't put your personal feelings in your document. Try to focus on the facts.
An exception to not using slang and swear words is if you are writing an affidavit or statement and you are writing what you or someone else said. You should always use the exact words that were said in those cases.
You should try to write in plain English and avoid using legal jargon. This is particularly important if you don't know what certain words mean. If you use big or complicated words or too many words, the reader may find your document difficult to understand or misinterpret what you are saying.
Remember to keep your sentences short, simple and clear. If a lawyer writes you a letter that is wordy and filled with jargon, you do not need to write a similar letter. It is always best to keep things simple.
If you want to know more about how to understand legal jargon used in documents you have received, see Reading legal documents, in this topic.
Any legal document you write must make sense. If it is a letter, it should get to the point. If it is a Statement of Claim for a small claims matter in the Local Court, it should set out your claim and briefly explain what your claim is based on, for example a contract to pay money for services.
When writing any legal document, you should:
When you receive a legal document, it can be difficult to understand what it means. This might be because of:
For a helpful tool to use when reading a legal document, see Checklist - Reading legal documents.
Remember, you should never ignore a legal document that is sent to you. You should read it and keep in mind any deadlines to respond or take action.
When reading a legal document you should consider the following information.
Sometimes the simplest way to work out what a legal document is saying is to read the heading.
If it is a letter, it may have a heading, before the bulk of the text, which explains:
If it is a court document, there may be a heading explaining what the document is, such as:
If it is legislation (laws made by parliament), the name of the law and the year it became law will usually be at the top as a heading, such as:
Each part, division and section of a law will also have headings to describe what they contain.
Many legal documents have a reference number that can help identify what the case is about and who is involved.
If it is a letter from a lawyer, the law firm will usually have a reference number that identifies which lawyer at the firm is running the case, and what the file number is.
If it is a court document, the court will give it a number when it is filed - this will usually include a case number and the year the case was started.
If it is legislation (laws made by a parliament), a law will have a number that indicates how many versions of the law there have been prior to the current one.
Some forms have reference numbers that identify the type of form being used, such as forms used by Transport for NSW (formerly the RMS) and forms used by the police.
The type of legal document sent to you will usually give you information about what the writer is trying to tell you. For example, a:
Understanding what the document is trying to tell you can help you work out how to respond.
Any legal letter or court document you receive will also tell you something in particular. For example:
Legislation can provide information about a number of things, including:
Forms will usually provide spaces for you to fill in your details, but may also tell you:
A good way to work out what a document is saying, is to separate it into sections, or summarise it in point form. You could:
Lawyers sometimes use legal words, phrases and language that are not easy to understand. They may also use Latin words and phrases.
Some examples of legal words include:
Legal words | Meaning |
---|---|
Wherein | during which |
Herein | in or inside here |
Therein | in there |
Shall | must |
Hereinafter | in a following part of this document, statement, or book |
Forthwith | at once, immediately |
Some examples of legal phrases include:
Legal phrases | Meaning |
---|---|
Admissibility of evidence | The test of whether evidence will be used in a court case or not |
Breach of contract | Where one person fails to meet the obligations set out in a contract |
Cause of action | A reason someone can sue someone else |
Deed of release and settlement | A written agreement that settles a dispute between parties and releases those parties from any further obligations, sometimes simply referred to as 'Deed of release' |
Grant of probate | A court order allowing the executors of a will to deal with the estate of a deceased. |
Joint and several liability | Two or more people responsible for paying a debt in full, both individually and together. |
Real property | Property such as land and buildings, as well as any rights to the land |
Some examples of Latin words and phrases used include:
Latin | Meaning |
---|---|
inter alia | among other things |
bona fide | authentic, genuine |
pro bono | for the public good, often used to refer to free legal assistance |
mutatis mutandis | the necessary changes having been made |
res ipsa loquitur | the thing speaks for itself. This is often used when simply describing what happened is enough to prove a point (for example in a car accident case noting that the other driver was driving on the wrong side of the road). |
ipso facto | a certain effect is a direct consequence of an action |
habeas corpus | may you have [your] body, often used when someone is unlawfully held in custody |
non est factum | it is not [my] deed/document |
prima facie | used to signify that on first examination, a matter appears to be self-evident from the facts |
ultra vires | beyond what someone is authorised to do |
These are just a small example of the many legal and Latin words and phrases that are often used. If you do not understand a word used in a legal document, you should use a dictionary or get legal advice.
If you don't understand a word used in a legal document you should look it up in a dictionary. Some legal words might not appear in an ordinary dictionary, but there are legal dictionaries that give meanings for common legal words and terms. Most legal dictionaries will also include Latin words and commonly used phrases.
For some common words found on this website, see Legal Words.
The following examples are legal documents with explanations of how to read them:
In many types of legal matters you may need to write letters. Click on each of the links below for guides on how to write:
Before sending a letter in a legal matter you should get legal advice.
For a helpful tool to use when writing a letter, see Checklist - Writing letters.
Make sure you keep a copy of any letter you write and send. You may need to refer to your letter when you read any response sent to you or when you write your next legal document.
You may need to write to a court (or tribunal) for a number of reasons, including to:
When you write a letter to a court, you should make sure the person reading it can understand what case you are referring to, and what you want.
For a helpful tool to use when writing a letter to a court, see Checklist - Writing letters.
All letters to court should include:
Sample: Sample letter to court
When you write a letter to a court, your name and address should be at the top of the page, on the right hand side. Underneath that, on the left hand side, you should write the date and the name of the court and its address. Use a PO Box address if the court has one.
Always include the date you are signing/sending the letter. A date is important because:
For example:
John Smith 23 West Street WESTTOWN NSW 2999 |
12 November 20XX The Registry |
When you write a letter to a court about a case that has been started, you should include a heading. The heading should state the names of the parties, the court the case is in, and the case number. It is important to give this information to help court staff identify what your letter is referring to.
For example:
Police v John Smith, Downing Centre Local Court |
When you write to a court, you should clearly state what the letter is about. If you are:
If you expect a reply or confirmation of receipt of documents, you should say this in the letter and tell the court your preferred contact details.
For example:
I am writing to you in relation to the above matter. I am unable to attend court on that day as I will be travelling to Victoria for work. I enclose a letter from my employer confirming this. I ask that the court adjourn my case. I will be back in Sydney from 8 December 2011, and I will be available on any day after that date. If the Court needs any further information, I can be contacted on: 0400 000 000. |
When you have completed the letter, you can write "Yours faithfully", leave two or three spaces, write your name and then sign in between "Yours faithfully" and your name.
If you are sending any documents, cheques or any other items, these are called 'enclosures'. You should describe what you are enclosing in the text of your letter (as in the example above). You should also add the letters "encl" underneath your name. This reminds the person receiving the letter that you sent something with it.
For example:
Yours faithfully, J. Smith John Smith |
Make sure you include a telephone number in any letter you write so that the person you send the letter to can contact you if they need to. You could also include your email address, if you have one.
Make sure you keep a copy of the letter and a record of when you posted it. You could use registered post so that there is a record of when the person you sent the letter received it.
If you have a dispute with someone, and you want to speak to them or demand that they do something, you could write them a letter. If your case goes to court, you may need to use the letter as evidence.
This page is a guide to writing to a party that is representing themselves, just like you. If the person you are in dispute with is represented by a lawyer, you should not contact them directly. Instead, you should write to their lawyer.
For more information, see Letters to lawyers.
You may want to write to the unrepresented party because they owe you money, or you need to serve (formally give) some court documents by post.
For a helpful tool to use when writing a letter to an unrepresented party, see Checklist - Writing letters.
Whenever you write to other parties or their lawyers, you should make sure to only include things that you may want to rely on in court. If you want to offer to settle the matter, you can write the words 'Without Prejudice' on your letters. This means the letters sent by you usually can't be used as evidence in court. Before sending the letter, you should get legal advice.
Your letter should include:
When you write a letter, your name and address should be at the top of the page, on the right hand side. Underneath that, on the left hand side, you should write the date, and the name and address of the person or business you are writing to.
Always include the date you are signing/sending the letter. A date is important because:
it can help you prove when you sent the letter
a date can be used to identify the document. For example, if you call the party about your letter you can ask them if they have received your letter 'dated 10 January 20XX'.
For example:
John Smith 23 West Street WESTTOWN NSW 2999 |
12 November 20XX Ms Paula Brown |
Any letter you write should include a heading. The heading should state all the names of the parties, the court the case is in and the case number, (if the case is in court), or other details to identify the matter, (if a court case has not been started). For example:
For example:
Dear Madam, John Smith and Paula Brown trading as Paula's Hair Design Payment for shop fitting work done at Paula's Hair Design |
If there has been a previous letter from the person you are writing to and you are replying to that, you should say this in the next line.
For example:
I refer to your letter dated 10 November 20XX. |
If you have written to the unrepresented party previously and received no reply, you could instead refer to your last letter.
When you write a letter to someone you should clearly state what the letter is about. If you are:
For example:
I refer to my letter dated 10 November 20XX and the shop fitting work that I performed on your business premises at Shop 3, 1034 George Street, Parramatta, on 3 and 4 October 20XX. You have not paid my invoice dated 15 October 20XX, for $3,233.00. I enclose a copy of my invoice. Payment of the invoice was due on 1 November 20XX. |
When you have completed the letter, you can write "Yours faithfully", leave two or three spaces, write your name and then sign in between "Yours faithfully" and your name.
If you are sending any documents, cheques or any other items, these are called 'enclosures'. You should describe what you are enclosing in the text of your letter (as in the example above). You should also add the letters "encl" underneath your name. This reminds the person receiving the letter that you sent something with it.
For example:
Yours sincerely John Smith |
If you are involved in a legal dispute, you may need to write a letter to a lawyer representing the other party in the dispute. This page has some tips for writing letters to lawyers and law firms.
For a helpful tool to use when writing a letter to a lawyer, see Checklist - Writing letters.
Your letter should include:
Sample: Sample letter to lawyers
Whenever you write to other parties or their lawyers, you should make sure to only include things that you may want to rely on in court. If you want to offer to settle the matter, you can write the words 'Without Prejudice' on your letters. This means the letters sent by you usually can't be used as evidence in court. Before sending the letter, you should get legal advice.
When you write a letter to a law firm, your name and address should be at the top of the page, on the right hand side. Underneath that, on the left hand side, write the date, the name of the law firm, and its address. If you know the name of the lawyer who is running the case, you could put their name above the law firm's name.
Always include the date you are signing/sending the letter. A date is important because:
For example:
John Smith 14 West Street WESTTOWN NSW 2999 |
12 October 20XX XYZ Law Firm |
Most letters from law firms will include their own reference number and a heading that names the parties and describes the matter. A law firm's reference number helps them identify who their client is and which lawyer in their firm is handling the case. When you write to a lawyer you should also note their reference number and heading.
For example:
Dear Sir/Madam John Smith v Marco Pirelli Parramatta Local Court, Case number 2011/000012 Your ref: CO:BAL12345 |
CO might be the initials of the lawyer who is handling the case. BAL12345 might be the first three letters of the client's surname plus the file number. This is just one of the ways that law firms write their reference numbers. When writing to a law firm it is helpful to include their reference number if you know it.
If you know the name of the lawyer handling the case, you could write their name above the name of the law firm.
If you are replying to an earlier letter from the lawyer or law firm, you should say in the next line.
For example:
I refer to your letter dated 10 October 2011. |
If you have written to the law firm previously and received no reply, you could instead refer to your last letter.
If you are writing to a response to a letter from a lawyer, you will need to clearly tell the lawyer what your response is. You may want to:
For example:
I deny that I owe your client any money at all. I hired your client to do gardening work at my property, but your client failed to do any of the work agreed upon, and in fact did not do any work on my property at all. As a result, I had to hire another gardener to do the work your client had originally agreed to do. I enclose a receipt for the gardening work performed by the other gardener. |
Whatever it is that you want, you should write directly and to the point. You don't want to confuse the lawyer by including irrelevant information. You also should make sure that your letter is polite and formal.
Before you finish the letter, you should make sure that you tell the lawyer for the other party what you want. You may want them to:
For example:
I ask that your client file a Notice of Discontinuance and that a copy of the sealed Notice of Discontinuance be served on me within 7 days of the date of this letter. |
When you have completed the letter, you can write "Yours faithfully", leave two or three spaces, write your name and then sign in between "Yours faithfully" and your name.
If you are sending any documents, cheques or any other items, these are called 'enclosures'. You should describe what you are enclosing in the text of your letter (as in the example above). You should also add the letters "encl" underneath your name. This reminds the person receiving the letter that you sent something with it.
For example:
Yours faithfully, J. Smith John Smith |
Make sure you include a telephone number in any letter you write so that the person you send the letter to can contact you if they need to. You could also include your email address, if you have one.
Make sure you keep a copy of the letter and a record of when you posted it. You could use registered post so that there is a record of when the law firm received it.
You may need to write to a third party (someone not involved in your case) because you need some information or you need them to provide a service to you. For example, you might want to ask someone to give you copies of documents, serve them with (formally give them) a subpoena by post, or ask a process server (a person you hire to serve documents for you) to serve a court document.
For a helpful tool to use when writing a letter to a third party, see Checklist - Writing letters.
Your letter should include:
When you write a letter, your name and address should be at the top of the page, on the right hand side. Underneath that, on the left hand side, you should write the date, and the name and address of the person or business you are writing to.
Always include the date you are signing/sending the letter. A date is important because:
For example:
John Smith 23 West Street WESTTOWN NSW 2999 Ph: 0499 111 111 |
19 November 20XX Easy Peasy Process Servers |
Any letter you write should include a heading. The heading should state all the parties' names, the court the case is in and the case number, (if the case is in court), or other details to identify the matter, if a court case has not been started. For example:
For example:
Dear Sir/Madam, John Smith v Paula Brown trading as Paula's Hair Design |
When you write a letter to someone, you should clearly state what the letter is about. If you are:
For example:
I am representing myself in this matter. I enclose the following documents:
Please serve the original Statement of Claim on the defendant, Paula Brown. The defendant's
Please return a sworn Affidavit of Service once you have served the document. If you have any questions in the meantime, please do not hesitate to contact me. |
When you have completed the letter, you can write "Yours faithfully", leave two or three spaces, write your name and then sign in between "Yours faithfully" and your name.
If you are sending any documents, cheques or any other items, these are called 'enclosures'. You should describe what you are enclosing in the text of your letter (as in the example above). You should also add the letters "encl" underneath your name. This reminds the person receiving the letter that you sent something with it.
For example:
Yours sincerely J. Smith encl |
Make sure you include a telephone number in any letter you write so that the person you send the letter to can contact you if they need to. You could also include your email address, if you have one.
Make sure you keep a copy of the letter and a record of when you posted it. You could use registered post so that there is a record of when the person you sent the letter received it.
This is an example of what a basic letter of offer could look like.
Sample: Sample letter of offer.
If you are involved in a court case, you might have been told to prepare written evidence. There are three main ways of providing that evidence: affidavits, statements and statutory declarations. The type of evidence that you write will depend on your specific situation and any orders that have been made.
A statutory declaration is usually used where there are no court proceedings but some fact needs to be proved. If you are involved in a court case in the Local Court of NSW, statements are often used so that each party knows what evidence the other party has. If you are involved in a case in the District or Supreme Courts of NSW, or in some Federal Courts, affidavits, which contain sworn, written evidence, are often used.
For more information on how to write each of the three types of written evidence, see:
If you need to put evidence in writing, you should get legal advice.
If you need to make a statutory declaration or affidavit, you will need an approved witness or authorised person to witness your signature (watch you sign the document to confirm that it was you who signed it).
For more information about the witnessing of documents, see Witnessing documents.
A subpoena is a court order that tells someone to produce something and/or give evidence at a hearing or trial.
There are three different kinds of subpoenas:
A subpoena can be made to force:
A subpoena can only be issued when a case is before a court. A court can’t make an order unless there are court proceedings in progress.
You can apply for a subpoena if you are a party in a case that is currently before a court.
You can apply for a subpoena if:
To apply for a subpoena you must fill out the approved form and file it with the court. Each court will have its own form that you can download from the courts website.
You may need permission from the court to apply for a subpoena.
There may be a limit to how many subpoenas you can apply for without the courts permission.
Each court has its own rules for when you can apply for a subpoena. You should check the courts rules before applying for a subpoena.
The document(s) and information produced under a subpoena are available to all of the parties in your case. You should not apply for a subpoena if you believe the document(s) or information might be harmful to your case.
Before applying for a subpoena, you should get legal advice.
If you are going to apply for a subpoena you will need:
the name of document(s) or thing(s) to be produced. You must provide a clear description of the document(s) or information that you require.
You can name two or more people in a subpoena if:
A subpoena should not include a request for:
If you are not sure how to prepare a subpoena, you should get legal advice.
Depending on the court, you may be able file your subpoena online or in person, at the registry where the court is located.
If you are filing your subpoena in person, you must file:
You may have to pay a fee to file your subpoena. You should contact the court or check the court’s website to find out whether you will have to pay a fee.
When the court receives your documents it will:
The court will keep your original subpoena for its records.
The subpoena must be personally given to the person it is addressed to by the date for service. You must also serve every other party to the case with a copy of your subpoena. You can pay for a professional process server to serve the subpoena or do it yourself.
Each court has its own rules for time limits for service of subpoenas. You should check the courts rules before you attempt service.
If you do not serve your subpoena correctly, it may not be valid.
For more information about issuing a subpoena for your court matter, see the following topics in My Problem is about:
Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don’t have time to comply with the standard rules.
A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.
If you are considering applying for an order for short service of a subpoena, you should get legal advice.
To apply for an order for short service, you will need a Notice of Motion form and an affidavit in support of your application.
You can get copies of forms from:
your nearest local court or
the Local Courts website.
Conduct money is money paid to a person who receives a subpoena to cover the cost of producing the document(s) or going to court.
You must pay conduct money when you serve your subpoena.
The amount you pay:
You should check the court rules to find out if there is a minimum amount you must pay.
If you do not pay conduct money, the subpoenaed person is not required to comply with the subpoena. You may be ordered by the court to pay the amount requested by the person subpoenaed.
Before you serve your subpoena, you should contact the subpoenaed person to find out how much conduct money they will require to comply with the subpoena.
If you have received a subpoena, you must comply with it unless you have a lawful excuse not to. For example, you were served after the date for service or you were not given conduct money.
If you do not comply with a subpoena, and you do not have a lawful excuse, you may be held in contempt of court and a warrant may be issued for your arrest. You may also be ordered to pay another party’s legal costs.
If you are going to post the requested documents to the court, they must arrive by the return date.
If you have received a subpoena that you do not want to or cannot comply with, you should get legal advice.
When the documents you have requested have been provided to the court, you must ask the courts permission to inspect the documents. To do this, you must file the approved form with the court before the hearing.
Each court has its own form that you must use.
At the hearing, the court will have to decide whether to allow you access to the documents it has been provided. If the court grants you access, there are three orders it can make:
If you are only allowed to view the documents, you should make detailed notes of what information is in the documents. It is a good idea to bring a notepad and pen with you to the court when you are inspecting documents.
You may have to pay a fee to photocopy the subpoenaed documents.
If you want to uplift any documents, you may have to fill out a form to ask the court for permission. You should check the courts rules before you take any documents.
You can object to a subpoena on the following grounds:
Depending on the type of objection you want to make, you may be able to send a notice to the court explaining your reasons for objection or you may have to attend court to explain your reasons in person.
You should check the courts rules about objecting to subpoenas.
If you want to object to a subpoena, you should get legal advice.
You can object to a subpoena where:
If you were not given enough conduct money, you should contact the person who sent you the subpoena to fix the problem.
If they will not give you the money you need, you must raise an objection at court. You must do this before you give them the documents they want.
A subpoena may be oppressive if it:
A subpoena is not oppressive just because it is inconvenient.
A court may set aside a subpoena if:
To object on this ground, you must go to the hearing and ask the court to set aside the subpoena.
You can object to a subpoena if the document(s) or information sought is protected by one of the following types of privilege:
You can object to a subpoena on these grounds even if you are not the person named in the subpoena, but you must have a sufficient interest in the document(s) or information requested.
If you cannot object to a subpoena because of privilege, but the document(s) requested contain your private information, you may be able to object to your private information being shared. A court may refuse inspection or limit access to documents if it decides that the documents:
You may also be able to object to a subpoena on the grounds that it contains:
This information is generally protected.
If you want to object to a subpoena, you should get legal advice.
Documents or things that were not made an exhibit will be returned once the original case is finished.
Documents or things that were made an exhibit will be returned after:
The court will not return any material which it has written on or marked in some way.
For more information about issuing a subpoena for your court matter, see the following topics in My Problem is about:
Before a court case starts, or during a court case, you and the other party might agree to settle the case. Agreements and settlements are usually put in writing.
A deed of release is often used to settle a dispute where a court case has not been started. A deed of release can also be used even where a court case has been started, along with Consent Orders or a Notice of Discontinuance.
A settlement is an agreement between the parties to a court case to resolve the matter themselves, before the case is decided by the court. Settlement agreements are often made with Consent Orders, which can include judgment by consent.
Before making an agreement or settlement, you should get legal advice.
A deed of settlement is a legal document that contains the agreement between the parties to resolve a dispute.
In a deed of release, one person gives up their legal rights or claims they may have had in exchange for something they want, like money or other things.
A deed of release does not require consideration but must be written, signed, sealed and delivered.
Before you draft or sign a deed of release, you should get legal advice.
For a helpful tool to use when writing a deed of release, see Checklist - Writing agreements and settlements.
A simple deed of release starts by stating the date it was made and naming who the parties involved are:
THIS DEED OF MUTUAL RELEASE is made on 12 October 2011 BETWEEN: John Smith of 12 Westown Street, Westown NSW ("seller") AND: Barry Pratt of 12 Eastown Street, Eastown NSW ("buyer") |
The next part is usually called the 'Recitals' and it contains background information and an explanation of the dispute:
RECITALS A. The seller was the owner and registered operator of the red Ford Laser motor vehicle with registration number ABC 123 ("the motor vehicle"). B. On 17 August 2010 by written agreement, the seller agreed to sell and the buyer agreed to buy the motor vehicle for the sum of $10 000 (the "sale agreement") C. On 18 August 2010 the buyer took possession of the motor vehicle. D. On 29 August 2010 the engine of the motor vehicle seized and caught fire ("the accident"). The damage caused to the motor vehicle by the accident was irreparable. E. The buyer and seller have agreed to release each other from all claims arising out of or in connection with the sale agreement and the accident on the terms set out in this deed. |
It’s important for the recitals to clearly say what dispute the deed is meant to resolve. The release should only apply to the issues mentioned in the recitals or those that the parties were specifically thinking about when they signed the deed, not unrelated matters.
After the 'Recitals', the next section of the deed describes the actual agreement reached between the parties and the effect of that agreement. This is called the 'Operative Part'.
The 'Operative Part' can include sections that deal with:
For example:
OPERATIVE PART 1. Settlement of claim Without admission of liability, each of the seller and the buyer agree: a. that the seller will pay the buyer the sum of $2000 (Agreed sum) within one month from the signing of this Deed. b. that upon payment of the agreed sum and signing of this Deed, each party releases the other from all claims arising out of or in connection with the sale agreement and the accident; and c. that this deed may be pleaded as a bar by either party to any action, suit or proceedings by the other party arising out of or in connection with the sale agreement and the accident. 2. Confidentiality Except for the purposes of: (a) obtaining legal or accounting advice regarding this deed; (b) complying with a legal obligation; (c) enforcing the terms of this deed; each party must keep the terms of this deed confidential. 3. Proper law and jurisdiction This deed is governed by the laws of New South Wales. Each party agrees to submit to the jurisdiction of the courts of that state or territory and agrees that any proceedings arising out of or in connection with this deed may be brought in any court of competent jurisdiction in that state or territory. |
Next comes the execution, where the parties place their
signatures. A deed usually has each signature witnessed.
For example:
SIGNED SEALED AND DELIVERED by JOHN SMITH in the presence of: Signature of witness Name of witness Signature of party Name of party SIGNED SEALED AND DELIVERED by BARRY PRATT in the presence of: Signature of witness Name of witness Signature of party Name of party |
Your signature on a deed may need to be witnessed, depending on whether you sign as an individual or on behalf of a company. If you are not sure about the signing requirements on the execution page of a deed you should get legal advice.
When signing (executing) a deed of release, you should make sure that there are copies for each of the parties involved. Often a deed of release will be 'executed' when one party provides their signed copy to the other party, and the other party in turn provides their signed copy to the first party. This is known as an 'exchange'. On exchange, each copy of the deed should be an exact copy of the other.
If a dispute has reached court, a deed of settlement and release may not be necessary, as terms of settlement can form part of a consent judgment.
If you and the other party reach an agreement after a court case has started, you may be able to write and file:
For a helpful tool to use when writing settlements, see Checklist - Writing agreements and settlements.
'Terms of settlement' is a document that records the agreement to settle a case between parties in dispute.
When you reach an agreement it is a good idea to put the details of the agreement in writing. The written agreement can be added to the court record if you want or if the court makes an order. The agreement doesn't have to be in any specific form, however, it should be written clearly and precisely.
Any agreement to settle should refer to the court proceedings and what will happen to them now that the matter has been settled. For example, the terms of settlement might say that a consent order or judgment will be given, or a Notice of Discontinuance will be filed.
The agreement should be promptly signed by all the parties.
For an example of what terms of settlement could look like, see:
Sample: Sample Terms of Settlement
Consent Orders are orders agreed to by both parties to a dispute and then made by the court. If you reach an agreement, you may want to have the court make Consent Orders. Consent Orders are generally easier to enforce than an agreement as they have the same effect as a decision of the court. You can agree that Consent Orders will be filed with the court in your Terms of Settlement and write what the Consent Orders will be in that document.
Consent Orders will usually include parts of the agreement that:
Not all parts of the terms of settlement have to be part of the consent orders. There may be some parts that the parties want to keep confidential.
Consent orders should include:
Once the court seals (stamps) the consent order it becomes an order of the court.
For an example of what consent orders could look like, see:
Sample: Sample Consent Order
If the parties come to an agreement to settle after a court case has been started, it does not always mean that consent orders have to be filed to finalise the case. Instead, the party who started the case (the plaintiff or applicant) can file a Notice of Discontinuance. A Notice of Discontinuance is a notice to the court that the plaintiff or applicant is withdrawing their claim and does not want to continue their case.
A Notice of Discontinuance will usually be filed if the plaintiff and the defendant have agreed that the plaintiff does not want to go ahead with their claim. If the defendant has filed a defence or entered an appearance (indicated that they will be defending the case), in some cases the plaintiff may need to get the defendant's consent (permission) to file the Notice of Discontinuance, or the court's permission.
In some cases, if you file a Notice of Discontinuance, you may have to pay the other party's costs. Before you file a Notice of Discontinuance, you should get legal advice.
For an example of what a Notice of Discontinuance could look like, see:
Sample: Sample Notice of Discontinuance
Sometimes you may be able to use facsimile (fax) or email to communicate with other parties involved in your legal dispute or the courts.
You can communicate by email or fax rather than letter. In some circumstances you can send legal documents as attachments to an email or fax, rather than sending them by post.
When you do this it is useful to also provide information either:
For a helpful tool to use when writing an email or a fax, see Checklist - Writing emails and faxes.
Sometimes you can communicate by email rather than letter. You may even be able to send legal documents as attachments to an email rather than by post. In either case, you will need to think carefully about what you will say in the email.
When communicating by email about legal matters, you should use similar practices as you would if you were sending a legal letter. For more information on what to put in letters to courts, solicitors and other parties, see Letters in this topic.
When corresponding by email, you should:
Think about the email address that you are using to send and receive formal correspondence. If it has a very informal name, you might want to create a new email account to use for your case.
You may be able to serve (formally give the other party) court documents, send evidence, or submit forms by email as attachments. Depending on the court you are in and what the other party has put as their address for service, you may be able to serve:
by email. In some cases you may be able to submit court forms or other forms by email, though you should check with the relevant court, department or agency before doing this.
There are rules about the way certain documents can be served and some documents must always be served by personal service. You should check the court rules that apply in your case to make sure that you can use email. If you are not sure whether you can serve a document by email, you should get legal advice.
If you want to send a document by email as an attachment, there are some things you should remember:
If you want to send legal documents or letters by facsimile (fax), you will generally need to include a fax cover sheet. A fax cover sheet is a page that comes before the first page of the letter or document you are sending and includes information such as:
It is a good idea to check with the person or organisation you are sending the fax to whether it will be received in a confidential area. If the fax is a shared machine in an open area and you want to send private documents, you may want to send a letter or email instead of a fax.
There are many templates for fax cover sheets available on word processing software, such as Word, which allow you to fill in the relevant details.
A fax cover sheet could look like this:
FAX To : XYZ Law Firm Attn: John Spoon Fax: 02 9000 1111 From: Gloria Yan Contact number: 0599 062 789 Return fax: 02 9001 9999 Date: Tuesday, 11 October 20XX Pages: 4 Re: Gloria Yan v Paddy Smith, Car accident claim This fax is confidential. If you are not the intended recipient, please notify me immediately. Dear Sir, Please find enclosed a copy of my Defence filed at the District Court on 10 October 2011. Yours sincerely, G. Yan Gloria Yan encl |
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