Minors (Property and Contracts) Act 1970 No 60

An Act relating to the contractual and testamentary capacity and proprietary rights and obligations of persons under the age of twenty-one years; for these and other purposes to amend the Conveyancing and Law of Property Act 1898 and the Wills, Probate and Administration Act 1898 and certain other Acts in certain respects; and for purposes connected therewith.

(1) This Act may be cited as the Minors (Property and Contracts) Act 1970 .

(2) Subject to subsection (3), this Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette, being a day not earlier than six months after the day on which Her Majesty’s assent to this Act was signified.

(3) If on the anniversary of the day on which Her Majesty’s assent to this Act is signified a day has not been appointed under subsection (2), this Act shall, notwithstanding that subsection, commence on that anniversary.

(1) (Repealed)

(2) An amendment made by subsection (1) does not:

(a) affect the previous operation of the Act amended, or anything duly suffered, done, or commenced to be done under the Act amended,

(b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the Act amended, or

(c) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, or liability as aforesaid.

(3) Any investigation, legal proceeding, or remedy mentioned in paragraph (c) of subsection (2) may be instituted, continued or enforced as if this Act had not been passed.

(4) Notwithstanding the amendments made by subsection (1):

(a) the law in force immediately before the commencement of this Act and relating to testamentary capacity and to the form of wills continues to apply to a will made before the commencement of this Act,

(b) the law in force immediately before the commencement of this Act and relating to the revocation of wills continues to apply to a revocation before commencement of this Act.

(5) The amendments made by subsection (1) to Part 4 of the Conveyancing and Law of Property Act 1898 apply to and in respect of proceedings in the Supreme Court under that Part commenced after the commencement of this Act and to and in respect of a lease made under section 68 of that Act after the commencement of this Act.

(6) The amendments made by subsection (1) to Part 5 of the Conveyancing and Law of Property Act 1898 apply to and in respect of a surrender or renewal made after the commencement of this Act.

(7) The amendments made by subsection (1) to the Usury, Bills of Lading, and Written Memoranda Act 1902 do not apply to a promise or ratification made before the commencement of this Act.

(1) This Act (except subsection (1) of section 3) does not affect the operation of the provisions relating to age in the enactments specified in the Second Schedule.

(2) This Act does not affect any power or authority which any person would have if this Act had not been passed, to give consent or to acquiesce in relation to a person under the age of twenty-one years where, under any law of the Commonwealth, such consent or acquiescence is required or permitted.

This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

(1) In this Act, unless the context or subject matter otherwise indicates or requires:

(b) an election to rescind or determine a contract for fraud, mistake, breach or otherwise,

(c) a disposition of property,

(d) a disclaimer,

(e) an acknowledgment of receipt of property,

(f) a discharge or acquittance,

(g) an exercise of a power under a contract or under a settlement, will or other instrument,

(h) an assent or consent to, acquiescence in, or acknowledgment or waiver of, any matter by a person affecting the person’s rights or obligations under a contract or relating to property,

(i) a release of any cause of action,

(j) a grant of any leave or licence,

(k) an election in relation to rights under a will or other instrument, or in relation to conversion as between realty and personalty, or

(l) an act done:

(ii) in relation to becoming or ceasing to be a member or officer, or

(iii) as a member or officer:

(m) without limiting the generality of the foregoing, any act relating to contractual or proprietary rights or obligations or to any chose in action:

(a) a conveyance, transfer, assignment, appointment, settlement, mortgage, delivery, payment, lease, bailment, reconveyance or discharge of mortgage,

(b) the creation of a trust,

(c) the release or surrender of any property, and

(d) the grant of a power in respect of property:

Minor participant , in relation to a civil act, means a person who, while the person is a minor, participates in the civil act.

Party , in relation to a civil act, includes a person who does, makes, accepts, suffers or joins in the civil act; and participate and participant have corresponding meanings.

Property includes real and personal property and any estate or interest in property real or personal, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any other right or interest.

(2) The making of a will, whether in exercise of a power of appointment or otherwise, or the revocation of a will, is not a civil act and is not a disposition of property for the purposes of this Act.

(3) Where a person participates in a civil act while a minor and by this Act the civil act is or becomes presumptively binding on the person:

(a) the civil act is, at and after the time of the person’s participation, as binding on the person and the person’s personal representative and has effect as if the person were not under the disability of infancy at the time of the person’s participation, and

(b) except where other provision is made by this Act, the civil act is binding and has effect as mentioned in paragraph (a) in favour of all persons.

(1) Where, under any Act, a civil act in which a person participates while under the age of twenty-one years is given any force or effect, that force or effect is not vitiated or diminished by anything in Part 2 or Part 3.

(2) Where, under any provision in Part 2 or Part 3, a civil act in which a person participates while under the age of twenty-one years is given any force or effect, that force or effect is not vitiated or diminished by anything in any other Act.

A person is not under the disability of infancy in relation to a civil act in which the person participates when aged eighteen years or upwards and after the commencement of this Act.

(1) After the commencement of this Act:

(b) except so far as the context otherwise requires, for the purposes of:

(ii) any instrument made under an Act, whether the instrument is made before or after the commencement of this Act:

a person aged eighteen years or upwards on the commencement of this Act or who attains the age of eighteen years after the commencement of this Act:

(c) is of full age and adult,

(d) is sui juris, subject however to the law relating to mental illness, and

(e) is not under any disability or incapacity of infancy.

(2) Subsection (1) does not affect the construction of words which:

(i) any matter (whether in writing or not) constituting or evidencing a civil act in which any person participates before the commencement of this Act, or

(ii) the will of a person dying before the commencement of this Act, and

(b) refer to infancy or adulthood, to full age, to incapacity or capacity, or to disability or ability, or refer to a person being or not being sui juris, or make any similar reference:

(3) Subsection (1) does not affect:

(a) the construction of any reference to “the adult male basic wage”, the “adult female basic wage”, or any similar expression in any Act or in any instrument made under an Act,

(b) the construction of any Act, or of any instrument made under an Act, so far as the Act or instrument gives rise to any liability for fine or imprisonment or other punishment for an offence, or

(c) the power to make any order under Part 3 of the Guardianship Act 1987 or the construction or operation of an order made under that Part.

(1) A person aged eighteen years or upwards may, after the commencement of this Act:

(a) be granted probate of a will as executor or letters of administration as administrator of the estate of a deceased person,

(b) become a trustee upon a constructive or other trust by declaration, appointment or otherwise,

(c) be a guardian of the person or of the estate of a minor,

(d) be a next friend or guardian ad litem of a minor or of a mentally ill person for the purpose of proceedings in any court,

(e) be appointed as a receiver,

(f) be appointed as a committee or manager under the Mental Health Act 1958 , and

(g) be appointed to any other fiduciary office.

(2) After the commencement of this Act a person aged eighteen years or upwards and holding any of the offices mentioned in paragraphs (a) to (f) of subsection (1) or any other fiduciary office may exercise the powers of that office and shall not be under the disability of infancy in relation to the rights, duties and liabilities incident to that office.

After the commencement of this Act, a person aged eighteen years or upwards:

(b) may commence, carry on, defend, compromise, settle, abandon, and otherwise engage in, and act in relation to, proceedings in any court without a next friend or guardian ad litem.

A person is estopped by his or her deed made, or by his or her words written or spoken, or by his or her conduct, when aged eighteen years or upwards and after the commencement of this Act, as if the person were aged twenty-one years or upwards.

A person is bound by the person’s laches or acquiescence when aged eighteen years or upwards and after the commencement of this Act as if the person were aged twenty-one years or upwards.

(1) In matters of tort, the doctrines of:

(c) volenti non fit injuria, and

(d) voluntary assumption of risk:

apply in the case of a person aged eighteen years or upwards as they apply in the case of a person aged twenty-one years or upwards.

(2) Subsection (1) applies to:

(b) a consent given after the commencement of this Act,

(c) a person who is volens after the commencement of this Act, and

(d) a risk voluntarily assumed after the commencement of this Act.

(3) This section does not affect such operation as the doctrines mentioned in subsection (1) may have in the case of a minor.

(1) The acts and state of mind after the commencement of this Act of a person aged eighteen years or upwards have, as regards the domicile of that person or of any other person, the same effect as if the person were aged twenty-one years or upwards.

(2) The acts and state of mind after the commencement of this Act of any person have, as regards the domicile of a person aged eighteen years or upwards, such effect only as those acts and state of mind would have if the latter person were aged twenty-one years or upwards.

This Part applies in relation to a civil act in which a minor participates after the commencement of this Act.

Where a minor participates in a civil act, the civil act is not binding on the minor except as provided by this Act.

This Part does not make presumptively binding on a minor a civil act in which the minor participates, or appears to participate, while lacking, by reason of youth, the understanding necessary for his or her participation in the civil act.

Where a minor participates in a civil act and his or her participation is for his or her benefit at the time of his or her participation, the civil act is presumptively binding on the minor.

(a) a minor makes a disposition of property for a consideration received or to be received by the minor,

(b) the consideration is not manifestly inadequate at the time of the disposition, and

(c) the minor receives the whole or any part of the consideration:

(a) a disposition of property is made to a minor for a consideration given or to be given by the minor, and

(b) the consideration is not manifestly excessive at the time of the disposition:

(3) Save to the extent to which, under Part 3 of the Sale of Goods Act 1923 or otherwise, a promise may operate as a disposition of property, subsection (2) does not make presumptively binding on a minor a promise by the minor which is the whole or part of the consideration for a disposition of property to the minor.

(4) Where the burden of, or arising under, a covenant or other promise runs with property so as to impose an obligation or restriction on a person to whom a disposition of the property is made in any manner or circumstances, subsection (2) does not make presumptively binding on a minor a disposition of that property to the minor in that manner or those circumstances.

Where a minor makes a disposition of property wholly or partly as a gift, and the disposition is reasonable at the time when it is made, the disposition is presumptively binding on the minor.

Where a minor participates in a civil act pursuant to a contractual or other duty binding on the minor, the civil act is presumptively binding on the minor.

An investment by a minor in:

(a) any public funds or government stock or government securities of any State of Australia or of the Commonwealth, or

(b) any debentures or securities guaranteed by the Government or by the Treasurer:

Where a minor participates in a civil act and a person who is not a party to the civil act:

(a) acquires property affected by the civil act or any estate or interest in property so affected for valuable consideration, or

(b) acts, otherwise than as a volunteer and so as to alter his or her position, on the basis of the validity of the civil act:

in either case without notice that the minor participant is at the time of his or her participation in the civil act a minor, the civil act is, in favour of that person and in favour of any person claiming under that person, presumptively binding on the minor participant.

A receipt by a married minor for rents, profits or other income or for accumulations of income is presumptively binding on the minor.

(1) The Supreme Court, on application by a minor, may, by order:

(a) grant to the minor capacity to participate in any civil act or in any description of civil acts or in all civil acts, and

(b) rescind or vary an order under paragraph (a).

(2) The Court may make an order under subsection (1) on such terms and conditions as the Court thinks fit.

(3) The Court shall not make an order under this section unless it appears to the Court that the order is for the benefit of the minor.

(4) A civil act in which a minor participates is, if authorised by a grant of capacity under this section, presumptively binding on the minor.

(5) An order of rescission or variation under paragraph (b) of subsection (1) does not affect the validity of a civil act in which the minor has participated before the making of the order of rescission or variation.

(1) A contract made by a minor or a disposition of property made by or to a minor pursuant to an approval under this section is presumptively binding on the minor.

(2) The Local Court may, on application by a minor, by order approve a contract proposed to be made by a minor or a disposition of property proposed to be made by or to a minor.

(3) (Repealed)

(4) The Local Court may make an order under this section on such terms and conditions as the Court thinks fit.

(5) The Local Court shall not make an order under this section unless it appears to the Court that:

(a) the minor would not undertake obligations under the proposed contract or dispose of property under the proposed disposition of property to the value of $10,000 or upwards, and

(b) the order is for the benefit of the minor.

(6) A refusal to make an order under this section or the making of an order subject to any terms or conditions does not prevent the minor making a further application, whether on evidence of the same or other facts, to the Supreme Court under section 26.

(7) Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001 (as applied by section 70 of the Local Court Act 2007 ) do not apply to an order under this section.

s 27: Am 1989 No 144, Sch 1 (1); 1998 No 137, Sch 2.18; 1999 No 31, Sch 4.60 [1]–[3]; 2001 No 121, Sch 2.149 [1]; 2007 No 94, Schs 1.68 [1] [2], 3; 2015 No 15, Sch 2.35.

(1) Where a minor makes a disposition of property for consideration and a certificate in respect of the disposition is given in accordance with this section, the disposition is presumptively binding on the minor.

(2) A certificate for the purposes of this section in respect of a disposition of property made by a minor for consideration must:

(b) be given:

(ii) by the NSW Trustee and Guardian, and

(c) state that the person giving the certificate is satisfied that:

(ii) the minor makes the disposition freely and voluntarily, and

(d) state that the person giving the certificate has received a written statement from an independent and appropriately qualified valuer or other financial adviser to the effect that the consideration for the disposition is not manifestly inadequate, and

(e) have annexed to the certificate a copy of the written statement referred to in paragraph (d).

(1) Where a disposition of property is made to a minor for consideration and a certificate in respect of the disposition is given in accordance with this section, the disposition is presumptively binding on the minor.

(2) A certificate for the purposes of this section in respect of a disposition of property made to a minor for consideration must:

(b) be given:

(ii) by the NSW Trustee and Guardian, and

(c) state that the person giving the certificate is satisfied that:

(ii) the minor takes the disposition freely and voluntarily, and

(d) state that the person giving the certificate has received a written statement from an independent and appropriately qualified valuer or other financial adviser to the effect that the consideration for the disposition is not manifestly excessive, and

(e) have annexed to the certificate a copy of the written statement referred to in paragraph (d).

(3) Save to the extent to which, under Part 3 of the Sale of Goods Act 1923 or otherwise, a promise may operate as a disposition of property, this section does not make presumptively binding on a minor a promise by the minor which is the whole or part of the consideration for a disposition of property to the minor.

(4) Where the burden of, or arising under, a covenant or other promise runs with property so as to impose an obligation or restriction on a person to whom a disposition of the property is made in any manner or circumstances, this section does not make presumptively binding on a minor a disposition of that property made to the minor in that manner or those circumstances.

(1) Where a person participates in a civil act while the person is a minor, the civil act may be affirmed:

(a) while the person remains a minor, on the person’s behalf by order of a court having jurisdiction under this section,

(b) after the person attains the age of eighteen years, by the person, or

(c) after the person’s death, by the person’s personal representative.

(2) The court may affirm a civil act on behalf of a minor participant in the civil act under paragraph (a) of subsection (1) on application by the minor participant or by any other person interested in the civil act.

(3) Subject to section 36, the court shall not affirm a civil act on behalf of a minor participant in the civil act under paragraph (a) of subsection (1) unless it appears to the court that the affirmation is for the benefit of the minor participant.

(4) Where a civil act is affirmed pursuant to this section by or on behalf of a minor participant in the civil act, or by the personal representative of a deceased minor participant in the civil act, the civil act is presumptively binding on the minor participant.

(5) An affirmation of a civil act under this section by a minor participant in the civil act or by the personal representative of a deceased minor participant in the civil act:

(b) need not be communicated to any person.

(1) Where a minor has participated in a civil act, then, subject to sections 33 and 35 and subject to subsection (2), the minor participant may repudiate the civil act at any time during his or her minority or afterwards but before the minor attains the age of nineteen years.

(2) A repudiation of a civil act by a minor participant in the civil act does not have effect if it appears that, at the time of the repudiation, the civil act is for the benefit of the minor participant.

(1) Where a minor has participated in a civil act and dies before attaining the age of nineteen years, then, subject to sections 33 and 35 and subject to subsection (2), his or her personal representative may repudiate the civil act at any time before the end of nineteen years after the birth of the minor participant or before the end of one year after the death of the minor participant whichever is the earlier.

(2) A repudiation of a civil act by the representative of a deceased minor participant in the civil act does not have effect if it appears that, at the time of the repudiation, the civil act is for the benefit of the estate of the deceased minor participant.

(1) Where a civil act is repudiated under section 31 or section 32:

(a) the repudiation does not affect any person unless notice in accordance with subsection (2) is served on that person or on a person under whom that person claims,

(b) the repudiation has effect against a person served with the notice and against a person claiming under the person served as if made on the date of service of the notice.

(2) A notice of repudiation must be in writing and signed by the person making the repudiation or by the person’s agent.

(3) A notice of repudiation may be served as provided in section 170 of the Conveyancing Act 1919 .

(1) Where a minor has participated in a civil act, then, subject to section 35 and subject to subsection (2), a court having jurisdiction under this section may, by order, repudiate the civil act on behalf of the minor participant at any time during his or her minority.

(2) The court shall not repudiate a civil act on behalf of a minor participant if it appears to the court that the civil act is for the benefit of the minor participant.

(3) Where the court repudiates a civil act on behalf of a minor participant, the court shall give such directions as it thinks fit for service of notice of the order of repudiation on persons interested in the civil act.

(1) Where a civil act is presumptively binding on a minor participant in the civil act in favour of another party to the civil act or in favour of any other person, a repudiation of the civil act under any of sections 31, 32 and 34 by or on behalf of the minor participant, or, if the minor participant has died, by his or her personal representative, does not have effect as against that other party or person.

(2) Where a person becomes a member of an association while the person is a minor and after the person becomes a member any civil act in which the person has participated for the purpose of becoming a member of the association, or as a member of the association, or otherwise in relation to the association, is repudiated under any of sections 31, 32 and 34 by the person or on the person’s behalf, or, if the person has died, by the person’s personal representative, the repudiation does not affect such right as any other member of the association or a creditor of the association may have for the application of the interest of the firstmentioned person, or if the person has died the interest of the person’s estate, in the property of the association in or towards satisfaction of any liability of the association which accrues before the repudiation or which accrues by reason of anything done or omitted before the repudiation.

(3) For the purposes of subsection (2), association includes a partnership but does not include a corporation.

Where, on application to a court having jurisdiction under this section by a person interested in a civil act, it appears to the court that the civil act is not presumptively binding on a minor participant in the civil act in favour of the applicant, the court shall either affirm the civil act under section 30 or repudiate the civil act under section 34 on behalf of the minor participant.

(1) Where a civil act is repudiated under any of sections 31, 32 and 34, a court having jurisdiction under this section may, on the application of any person interested in the civil act, make orders:

(a) for the confirmation, wholly or in part, of the civil act or of anything done under the civil act, or

(b) for the adjustment of rights arising out of the civil act or out of the repudiation or out of anything done under the civil act.

(2) Without limiting the generality of paragraph (a) of subsection (1), where on an application under this section, it appears to the court that any party to the civil act was induced to participate in the civil act by a misrepresentation made by a minor participant in the civil act, being a fraudulent misrepresentation as to the age of the minor participant or as to any other matter affecting the capacity of the minor participant to participate in the civil act, the court may confirm the civil act and anything done under the civil act.

(3) Where a civil act is presumptively binding in favour of any person, the court shall not make any order under this section adversely affecting the person’s rights except with the person’s consent.

(4) Subject to subsection (3), and except so far as the court confirms the civil act or anything done under the civil act, the court shall make such orders as are authorised by this section and as the court thinks fit for the purpose of securing so far as practicable that:

(a) each minor participant in the civil act makes just compensation for all property, services and other things derived by him or her by or under the civil act to the extent that the derivation of that property or of those services or things is for his or her benefit,

(b) each other participant in the civil act makes just compensation for all property, services and other things derived by him or her by or under the civil act, and

(c) subject to paragraphs (a) and (b), the parties to the civil act and those claiming under them are restored to their positions before the time of the civil act.

(5) Any court having jurisdiction under this section may, for the purposes of this section, make orders:

(b) for the payment of money.

(6) In addition to its jurisdiction under subsection (5), the Supreme Court may, for the purposes of this section, make orders for: