Minors (Property and Contracts) Act 1970

The Act’s primary subjects are minors—persons under 18 (s 6(1))—who participate in civil acts after commencement. Their capacity to bind themselves or to escape obligations is directly altered. Persons aged 18 or more are relieved of infancy disabilities for virtually all purposes and are treated as full adults (ss 8–15).

Counterparties to civil acts with minors—whether individuals, companies, partnerships, or public bodies—are equally affected. They gain presumptive enforceability when the statutory criteria are met and benefit from the stranger-protection rule in s 24. Guarantors of minors’ obligations are placed in the same position they would occupy if the minor were of full age (s 47).

Legal practitioners, the NSW Trustee and Guardian, and valuers play formal roles in the certification regime (ss 28 and 29). Courts at all levels are given new supervisory, approval, and adjustment jurisdictions (Part 4). Parents, guardians, and personal representatives may apply for orders, give or withhold consents, affirm or repudiate on behalf of minors or deceased minors, and be appointed referees on questions of benefit (ss 30, 32, 43).

The Crown in all capacities is bound (s 5). Professional associations, trustees, and receivers may interact with 18-year-olds in fiduciary offices that were formerly closed to them (s 10). Medical and dental practitioners obtain statutory protection from assault or battery claims when treating minors with appropriate consent (s 49). Executors and administrators may now be appointed from age 18 (s 10).

Finally, the Act touches anyone dealing with property to which a minor is beneficially entitled; the Supreme Court may authorise dispositions, investments, or applications of capital or income for the minor’s benefit (s 50). In aggregate, the statute rewrites the legal landscape for any civil act touching the proprietary or contractual sphere once a person under 21 is involved.

Minors possess a presumptive right to repudiate any non-binding civil act during minority or until the day before their 19th birthday (s 31(1)), subject to the act not being for their benefit at the time of repudiation (s 31(2)). They enjoy a corresponding right to seek court affirmation or repudiation (ss 30, 34) and to apply for capacity orders (s 26) or approval of specific transactions (s 27). Once an act is presumptively binding, however, the minor’s enforcement rights are curtailed by s 39: a court will not give judgment in the minor’s favour unless the act is also presumptively binding against the defendant.

Counterparties gain the right to rely on presumptive binding where any of ss 19–29 is satisfied. A bona-fide stranger who acquires an interest for value or changes position without notice of minority obtains statutory protection (s 24). Guarantors are entitled to the benefit of the fiction that the minor is of full age (s 47(1)).

Courts hold rights and duties to assess “benefit” (ss 19, 26(3), 27(5), 30(3), 31(2), 34(2)), to make adjustment orders that achieve just compensation and restitution (s 37(4)), and to confirm acts induced by a minor’s fraudulent misrepresentation of age or capacity (s 37(2)). The Supreme Court may vest property, appoint receivers, create charges, and vary its own orders (s 37(6)). Referees appointed under s 43 may conduct inquiries free of natural-justice constraints (subject to court direction) and file reports to which the court may have regard.

Parents and guardians retain rights to consent to medical treatment of children under 16 (s 49(1)) and may be consulted on questions of benefit. Married minors gain a specific right to give binding receipts for income (s 25). Persons aged 18 obtain positive rights to act as trustees, guardians, executors, next friends, receivers, and committee members (s 10), to sue and be sued without next friend (s 11), and to bind themselves by estoppel, laches, or acquiescence (ss 12–13).

The Act imposes duties of independent advice and valuation on solicitors and the NSW Trustee and Guardian before issuing certificates under ss 28 and 29. Parties seeking adjustment orders must satisfy the court that any adverse order against a presumptively protected person has that person’s consent (s 37(3)). Overall, the statute creates a calibrated set of rights that favour enforceability once statutory gateways are passed, while preserving judicial discretion to prevent unjust enrichment or exploitation.

The Act creates no criminal offences or monetary penalties. Enforcement is entirely civil and occurs through declaratory, adjustment, and restitutionary orders. Where a civil act is repudiated, any interested person may invoke the broad jurisdiction in s 37. The court may confirm the act, order delivery of goods, payment of money, creation of charges, sale of property, appointment of receivers, or vesting orders (s 37(5)–(6)). Sections 78 and 79 of the Trustee Act 1925 are applied to vesting orders (s 37(9)–(10)).

Judgments and orders against minors may be stayed or time for compliance extended, but only until the minor turns 18 (s 45). Costs are in the court’s discretion, including costs of removed or transferred proceedings (s 44). Referees’ reasonable costs must be secured before they act (s 43(3)); the court may order a party to pay them (s 43(1)(b)).

Presumptively binding acts are enforceable by or against the minor’s personal representatives after death (s 6(3)). The Act’s savings provisions ensure that pre-commencement rights, liabilities, and pending proceedings are not disturbed (s 3(2)–(7)). Medical consent rules in s 49 operate as a statutory defence to assault or battery claims rather than as a penalty regime.

In practice, enforcement leverage arises from the presumptive-binding status itself: once an act falls within ss 19–29 or is affirmed or not repudiated, ordinary contractual and proprietary remedies apply as if the minor were of full age (s 6(3)). The ultimate sanction for non-compliance with adjustment orders is ordinary contempt or execution process, subject to the temporary relief available under s 45.

Section 7(1) declares that any force or effect given to a minor’s civil act by another statute is not diminished by Parts 2 or 3. Conversely, force or effect given by Parts 2 or 3 is not diminished by other Acts (s 7(2)). Section 4(1) preserves the operation of age-specific provisions listed in Schedule 2, which include sections of the Probate and Administration Act 1898, University of Sydney Act, Western Lands Act, Mining Act, and numerous professional registration statutes. Section 4(2) leaves untouched Commonwealth requirements for consent or acquiescence to acts affecting persons under 21.

The Act expressly saves the law on testamentary capacity, revocation of wills, and certain conveyancing and usury provisions for pre-commencement transactions (s 3(4)–(7)). Part 3 does not apply to wills or their revocation (s 6(2)). Medical consent rules in s 49 sit beside, and do not exhaust, common-law justifications for treatment without consent.

Cross-references appear throughout: s 10 refers to the Guardianship Act 1987 and Mental Health Act 1958; s 27 excludes Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001; s 33 adopts the service rules in s 170 of the Conveyancing Act 1919; s 37 incorporates ss 78 and 79 of the Trustee Act 1925; s 46 preserves general agency principles; s 48 preserves tort liability irrespective of contractual connection. Jurisdiction under the Act is carved out of, yet interacts with, the Supreme Court Act 1970, District Court rules, and Local Court Act 2007 (s 51).

The definition of “property” includes causes of action for damages, including personal injury (s 6(1)), thereby linking the Act to general tort and damages statutes. The cumulative-effect clause ensures that the lowering of the age of majority does not inadvertently repeal more protective provisions in specialist legislation listed in Schedule 2.

The provided text records a series of amendments that update rather than overhaul the 1970 scheme. The most visible changes concern court structure and monetary limits. Section 27 was amended in 1989, 1998, 1999, 2001, 2007, and 2015 to replace references to the former Courts of Petty Sessions with the Local Court, to adjust the approval threshold, and to disapply certain appeal provisions (see amendment history to s 27). Section 40’s jurisdictional limits were increased over time: the District Court limit now stands at $750,000 and the Local Court at $100,000, reflecting inflation and changes in civil jurisdiction (amendments noted at s 40).

References to the “Public Trustee” were replaced by “NSW Trustee and Guardian” in ss 28 and 29 by the 2009 amendments (2009 No 49, Sch 2.38), and earlier by the 2002 Act (2002 No 26). The 1999 amendments repealed s 2, amended the savings clause in s 3, and updated cross-references to the Supreme Court Act and other statutes (1999 No 31 and 1999 No 85).

Section 9 was amended in 1987 and 1997 to accommodate the Guardianship Act 1987 and to refine exceptions for mental illness and punishment provisions. Section 49 received a minor update in 2010 to modernise the definition of dental and medical treatment.

These changes were largely machinery: they updated court names after the Local Courts legislation, aligned the statute with the creation of the NSW Trustee and Guardian, and adjusted value thresholds to maintain practical utility. No amendment altered the core presumptive-binding model or the 18/19-year age thresholds. The Second Schedule has been pruned as obsolete statutes were repealed or consolidated, illustrating the Act’s continuing role as a coordinating statute.

The Act itself contains no reported cases; however, its internal architecture reveals points of likely contention. The recurring “for the benefit of the minor” test in ss 19, 26(3), 27(5), 30(3), 31(2), 34(2), and 43 is inherently evaluative. Courts must decide whether benefit is assessed solely at the moment of participation or with hindsight, and whether non-financial benefits (education, career advancement, family support) suffice. The Act gives no statutory definition, leaving the question to judicial discretion informed by referee reports under s 43.

Section 37 adjustment orders raise equitable restitution questions. The direction in s 37(4) to secure “just compensation” for benefits received “to the extent that the derivation … is for his or her benefit” invites debate about apportionment between beneficial and non-beneficial aspects of a single transaction. Subsection (2) expressly permits confirmation where a minor has fraudulently misrepresented age or capacity—an echo of the old common-law rule but now placed on a statutory footing.

The interaction between presumptive binding and the minor’s enforcement rights under s 39 has generated academic and practitioner discussion. A minor may find that an act is binding against him but not enforceable by him, producing a one-way street that some commentators view as anomalous.

The certification regime in ss 28 and 29 requires the certifier to be “instructed and employed independently of any other party”. Disputes can arise about whether a solicitor’s prior relationship with a parent or the other contracting party compromises independence. The seven-day pre-disposition window is strict; late certificates are ineffective.

Repudiation time limits (the day before the 19th birthday) create a trap for minors who attain 18 but do not promptly review earlier contracts. Section 35(2) protects association creditors from repudiation of membership-related acts, raising questions about the precise scope of “liability of the association which accrues before the repudiation”.

Because the Act is expressed to be cumulative (s 7), courts must reconcile it with overlapping statutes. For example, the continued operation of Schedule 2 provisions means that a minor aged 18 may still be barred from certain professional registrations listed in that Schedule notwithstanding the general rule in s 9.

Most practitioners assume that once a minor turns 18 everything becomes straightforward; yet s 9(2) preserves the original construction of pre-commencement instruments that use the old 21-year benchmark. A will made before 1971 that creates an interest “upon attaining full age” may still require the beneficiary to reach 21.

The distinction between “presumptively binding” and actually enforceable by the minor is subtle but critical. Section 6(3) deems the act binding as if the minor were of full age, yet s 39 bars the minor from obtaining judgment unless the act is also presumptively binding against the defendant. A minor who sells shares at a profit may be unable to sue for the price if the buyer can point to some defect that prevents the converse presumption.

Certification under ss 28 and 29 looks like a safe harbour but the certificate must annex the valuer’s written statement and be given no more than seven days before the disposition. A solicitor who relies on an earlier valuation or gives the certificate eight days prior renders the protection unavailable.

Section 20(3) and (4) and the parallel carve-outs in s 29(3)–(4) prevent promises that form the consideration for a disposition to a minor from being treated as dispositions themselves. The practical effect is that a minor’s covenant to pay the purchase price for land may remain unenforceable even though the conveyance to the minor is presumptively binding.

Repudiation under s 31 is available until the day before the 19th birthday, not the 18th. Many solicitors advise minors at 18 without warning that the repudiation window remains open for another year, creating unexpected ongoing exposure for counterparties.

The “benefit” test in s 19 is assessed at the time of participation. A transaction that later sours cannot be repudiated on that ground alone if it was beneficial when entered into. Conversely, a transaction beneficial only in hindsight may still be repudiated if not caught by another presumption.

Section 24’s stranger-protection rule operates only in favour of persons without notice that the participant was a minor at the time of participation. Actual knowledge of chronological age is therefore decisive; constructive notice is insufficient.

Finally, the Act does not disturb the common-law rule that a minor is liable in tort even if the tort is connected with a contract (s 48). Framing a claim in tort rather than contract can therefore circumvent the infancy protections, a point easily overlooked when drafting pleadings.

Solicitors acting for or against minors should begin by classifying the proposed civil act against the s 6(1) definition. If the client is 18 or over, confirm that the transaction post-dates commencement and that no pre-1971 instrument governs the age reference (s 9(2)). For clients under 18, map the transaction onto the nearest presumptive-binding gateway in ss 19–29.

Where certainty is required, obtain Supreme Court capacity orders under s 26 for ongoing commercial activity or Local Court approval under s 27 for discrete contracts below the monetary limit. For dispositions, commission an independent valuation, instruct a solicitor or the NSW Trustee and Guardian who has no prior relationship with other parties, and ensure the certificate is executed within the seven-day window with the valuer’s statement annexed (ss 28–29).

If advising a minor who has already entered an improvident transaction, calculate the repudiation deadline (day before 19th birthday) and serve written notice under s 33 using the Conveyancing Act 1919 s 170 methods. Where the other party may claim presumptive binding, prepare evidence that the transaction was not beneficial at inception so that repudiation is not barred by s 31(2) or s 35.

In any contested matter, consider applying for a referee under s 43 to report on benefit; secure the referee’s costs in advance. When drafting adjustment applications under s 37, particularise every item of property, service, or benefit received by each party and be ready to address the restorative presumption in s 37(4). If the opponent relies on presumptive binding, obtain their consent before seeking any adverse order (s 37(3)).

Parties dealing with minors should insert age warranties, require production of birth certificates or capacity orders, and insist on independent legal advice. Guarantors must understand that their liability is co-extensive with the minor’s deemed full-age obligation (s 47). Medical practitioners should obtain parental consent for patients under 16 and the minor’s own consent where the minor is 14 or older (s 49).

Trustees and guardians of minors’ property must seek Supreme Court authorisation under s 50 before any disposition or application of capital. When acting for associations or partnerships, note the protection in s 35(2) that survives repudiation of membership acts.

Compliance checklists should address: (1) chronological age at participation; (2) whether the act falls within any s 19–29 gateway; (3) independent advice and certification where required; (4) repudiation deadlines; (5) court approval or capacity applications; and (6) documentation sufficient to prove or disprove benefit at the relevant date. Regular training on the interaction between this Act and the statutes listed in Schedule 2 is essential for specialists in succession, property, and litigation practice.