Settled Estates Act 1880 (South Australia)

The Settled Estates Act 1880 establishes a statutory framework by which the Supreme Court of South Australia, or a judge thereof, may authorise leases, sales, dedications and other dealings in relation to settled estates. The Act defines "settlement" and "settled estates" and then lays down a set of procedural and substantive constraints that the court must observe when exercising those powers (see ss 2, 3, 4, 15, 19). The court may approve particular leases, vest general leasing powers in trustees, sanction sales of whole or part of settled estates or timber growing on them, permit dedications for streets and other public works, and authorise protective proceedings such as litigation or petitions to Parliament with costs to be charged on the estate (ss 4, 9, 12, 15, 16, 19, 20).

Mechanically, the Act does the following things. It specifies maximum permitted lease terms depending on the lease class: agricultural/occupation leases up to 21 years, mining leases up to 40 years, repairing leases up to 60 years, and building leases up to 99 years (s 4(1) Firstly). It requires reservation of "the best rent" reasonably obtainable, prohibits taking fines or premiums except as expressly permitted, and allows the court to direct temporary reduced rents for the early years of certain leases (s 4(1) Secondly). Where leases concern minerals, the Act requires a portion of rent to be set aside and invested for the benefit of certain classes of beneficiaries, with proportions specified depending on whether the rent‑recipient has mineral working rights under the settlement (s 4(1) Thirdly; s 34(1)).

On applications to the court, the Act sets out who must concur or be served with notice, and circumstances in which the court may dispense with consent or notice (ss 22-31). The court must be satisfied by evidence as to the nature, value and circumstances of the estate before authorising a lease (s 10). Orders under the Act are given practical effect by the Registrar‑General where land is on the Torrens register (s 33). Money arising from sales or set aside from mineral rents may be paid into court or to court‑approved trustees and applied to discharge encumbrances, to acquire substitute hereditaments to be settled in the same way, to purchase trustee securities, or to be paid to persons becoming absolutely entitled, with detailed directions on investment and income distribution (ss 34-37).

South Australia Settled Estates Act 1880 An Act to amend the law relating to leases and sales of settled estates.

Contents Preamble 1 Short title 2 Interpretation of settlement and settled estates 3 Interpretation of the court 4 Power to authorise leases of settled estates 5 Leases may contain special covenants 6 Parts of settled estates may be leased 7 Leases may be surrendered and renewed 8 Power to authorise leases to extend to preliminary contracts 9 Mode in which leases may be authorised 10 What evidence to be produced on an application to authorise leases 11 After approval of a lease court to direct who shall be the lessor 12 Powers of leasing may be vested in trustees 13 Conditions that leases be settled by the court not to be inserted in orders made under this Act 14 Conditions where inserted may be struck out 15 Court may authorise sales of settled estates and of timber 16 Proceedings for protection 17 Consideration for land sold for building may be a fee-farm rent 18 Minerals etc may be excepted from sales 19 Court may authorise dedication of any part of settled estates for streets, roads, and other works 20 As to laying out and making, and executing, and maintaining streets, roads, and other works, and expenses thereof 21 How sales and dedications are to be effected under the direction of the court 22 Application to exercise powers conferred by Act 23 With whose consent such application to be made 24 Court may dispense with consent in respect of certain estates 25 Notice to be given to persons who do not consent to or concur in the application 26 Court may dispense with notice under certain circumstances 27 Court may dispense with consent, having regard to the number and interests of parties 28 Application may be granted without consent, saving rights of non‑consenting parties 29 Notice of application to be served on all trustees 30 Notice of application to be given in newspapers if court directs 31 No application under this Act to be granted where a similar application has been rejected by Parliament 32 Notice of the exercise of powers to be given as directed by the court 33 Registrar-General to carry out orders of court 34 Payment and application of money arising from sales, or set aside out of rent etc reserved on mining leases 35 Trustees may apply money in certain cases without application to court 36 Until money can be applied to be invested and dividends to be paid to parties entitled 37 Court may direct application of money in respect of leases or reversions as may appear just 38 Court may exercise powers repeatedly 39 Court not to authorise any act which could not have been authorised by the settlor 40 Acts of the court in professed pursuance of this Act not to be invalidated 41 Costs 42 Rules and orders 43 Rules and orders to be laid before Parliament 44 Tenants for life etc may grant leases for 21 years 45 Against whom such leases shall be valid 46 Evidence of execution of counterpart lease by lessee 47 Provision as to infants, lunatics etc 51 No obligation to make or consent to application etc 52 Tenants for life etc to be deemed entitled, notwithstanding encumbrance Legislative history

Preamble WHEREAS it is expedient to amend the law relating to the leasing and sale of settled estates in South Australia in manner hereinafter provided:

The Parliament of South Australia enacts as follows: 1—Short title This Act may be cited for all purposes as the Settled Estates Act 1880. 2—Interpretation of settlement and settled estates The word settlement, as used in this Act, shall signify any Act of Parliament, deed, agreement, will, or other instrument, or any number of such instruments under or by virtue of which any hereditaments of any tenure or any estates or interests in any such hereditaments now or at any time stand limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively. The term settled estates, as used in this Act, shall signify all hereditaments of any tenure, and all estates or interests in any such hereditaments which are or shall be the subject of a settlement; and for the purpose of this Act a tenant-in-tail after possibility of issue extinct shall be deemed to be a tenant for life. All estates or interests in remainder or reversion not disposed of by the settlement, or reverting to a settlor, or descending to the heirs, executors, or administrators of a testator, shall be deemed to be estates coming to such settlor, or heirs, executors, or administrators under and by virtue of the settlement. In determining what are settled estates within the meaning of this Act, the court shall be governed by the state of facts, and by the trusts or limitations of the settlement at the time of the said settlement taking effect. 3—Interpretation of the court The expression the court in this Act shall mean the Supreme Court of the State of South Australia, or a judge thereof. 4—Power to authorise leases of settled estates The court may, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this Act contained, authorise leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the following conditions be observed— Firstly— Every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease twenty-one years, and for a mining lease forty years, and for a repairing lease sixty years, and for a building lease ninety-nine years: Secondly— On every such lease shall be reserved the best rent, or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half-yearly or oftener without taking any fine, premium, or foregift, or other benefit in the nature of a fine, premium, or foregift: Provided always that in the case of a mining lease, a repairing lease, or a building lease, a peppercorn rent, or any smaller rent than the rent to be ultimately made payable may, if the court shall think fit so to direct, be made payable during all or any part of the first five years of the term of the lease: Thirdly— Where the lease is of any earth, stone, or mineral, a certain portion of the whole rent or payment reserved shall be from time to time set aside and invested as hereinafter mentioned, that is to say, when and so long as the person for the time being entitled to the receipt of such rent is a person who by reason of his estate or by virtue of any declaration in the settlement is entitled to work such earth, coal, stone, or mineral for his own benefit, one-fourth part of such rent, and otherwise three-fourth parts thereof; and in every such lease sufficient provision shall be made to ensure such application of the aforesaid portion of the rent by the appointment of trustees or otherwise, as the court shall deem expedient: Fourthly— Every such lease shall be by deed or by duly registered memorandum of lease, and the lessee shall execute a counterpart thereof, and every such lease shall contain a condition for re-entry on non-payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf. 5—Leases may contain special covenants Subject and in addition to the conditions hereinbefore mentioned, every such lease shall contain such covenants, conditions, and stipulations as the court shall deem expedient with reference to the special circumstances of the demise. 6—Parts of settled estates may be leased The power to authorise leases conferred by this Act shall extend to authorise leases either of the whole or any parts of the settled estates, and may be exercised from time to time. 7—Leases may be surrendered and renewed Any leases, whether granted in pursuance of this Act or otherwise, may be surrendered either for the purpose of obtaining a renewal of the same or not, and the power to authorise leases conferred by this Act shall extend to authorise new leases of the whole or any part of the hereditaments comprised in any surrendered lease. 8—Power to authorise leases to extend to preliminary contracts The power to authorise leases conferred by this Act shall extend to authorise preliminary contracts to grant any leases, and any of the terms of such contracts may be varied in the leases. 9—Mode in which leases may be authorised The power to authorise leases conferred by this Act may be exercised by the court either by approving of particular leases or by ordering that powers of leasing, in conformity with the provisions of this Act, shall be vested in trustees in manner hereinafter mentioned. 10—What evidence to be produced on an application to authorise leases When application is made to the court either to approve of a particular lease, or to vest any powers of leasing in trustees, the court shall require the applicant to produce such evidence as it shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and conditions on which leases thereof ought to be authorised. 11—After approval of a lease court to direct who shall be the lessor When a particular lease or contract for a lease has been approved by the court, the court shall direct what person or persons shall execute the same as lessor; and the lease or contract executed by such person or persons shall take effect in all respects as if he or they was or were, at the time of the execution thereof, absolutely entitled to the whole estate or interest which is bound by the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct. 12—Powers of leasing may be vested in trustees Where the court shall deem it expedient that any general powers of leasing any settled estates conformably to this Act should be vested in trustees, it may by order vest any such power accordingly, either in the existing trustees of the settlement, or in any other persons; and such powers, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct; and in every such case the court, if it shall think fit, may impose any conditions as to consents or otherwise on the exercise of such power, and the court may also authorise the insertion of provisions for the appointment of new trustees from time to time for the purpose of exercising such powers of leasing as aforesaid. 13—Conditions that leases be settled by the court not to be inserted in orders made under this Act Provided that in orders under this Act for vesting any powers of leasing in any trustees or other persons, no conditions shall be inserted requiring that the leases thereby authorised shall be submitted to or be settled by the court or a judge thereof, or be made conformable with the model lease deposited in the judge's chambers, save only in any case in which the parties applying for the order may desire to have any such condition inserted, or in which it shall appear to the court that there is some special reason rendering the insertion of such a condition necessary or expedient. 14—Conditions where inserted may be struck out Provided also, that in all cases of orders under this Act in which any such condition as last aforesaid shall have been inserted, any party interested may apply to the court to alter and amend such order by striking out such condition, and the court shall have full power to alter the same accordingly, and the order so altered shall have the same validity as if it had originally been made in its altered state; but nothing herein contained shall make it obligatory on the court to act under this provision in any case in which from the evidence which was before it when the order sought to be altered was made, or from any other evidence, it shall appear to the court that there is any special reason why in the case in question such a condition is necessary or expedient. 15—Court may authorise sales of settled estates and of timber The court may, if it shall deem it proper and consistent with a due regard for the interest of all parties entitled under the settlement, and subject to the provisions and restrictions in this Act contained, from time to time authorise a sale of the whole or any parts of any settled estates, or of any timber growing on any settled estates, and every such sale shall be conducted and confirmed in the same manner as by the rules and practice of the court for the time being, is or shall be required in the sale of lands sold under a decree of the court. 16—Proceedings for protection The court may, if it shall deem it proper and consistent with a due regard for the interests of all parties who are or may hereafter be entitled under the settlement, and subject to the provisions and restrictions in this Act contained, sanction any action, defence, petition to Parliament, parliamentary opposition, or other proceedings appearing to the court necessary for the protection of any settled estate, and to order that all or any part of the costs and expenses in relation thereto be raised and paid by means of a sale or mortgage of, or charge upon all or any part of the settled estate, or be raised and paid out of the rents and profits of the settled estate, or out of any moneys or investments representing moneys liable to be laid out in the purchase of hereditaments, to be settled in the same manner as the settled estate, or out of the income of such moneys or investments, or out of any accumulations of rent, profits, or income. 17—Consideration for land sold for building may be a fee-farm rent When any land is sold for building purposes, the court may allow the whole or any part of the consideration to be a rent issuing out of the same, which rent may be secured and settled in such manner as the court shall approve. 18—Minerals etc may be excepted from sales On any sale of land, any earth, stone, or mineral may be excepted, and any rights or privileges may be reserved, and the purchaser may be required to enter into any covenants, or submit to any restrictions which the court may deem advisable. 19—Court may authorise dedication of any part of settled estates for streets, roads, and other works The court may, if it shall deem it proper and consistent with a due regard for the interests of parties entitled under the settlement, and subject to the provisions and restrictions in the Act contained, from time to time direct that any part of any settled estates be laid out for streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or watercourses, either to be dedicated to the public or not; and the court may direct that the parts so laid out shall remain vested in the trustees of the settlement, or be conveyed to or vested in any other trustees, upon such trusts for securing the continued appropriation thereof to the purposes aforesaid in all respects, and with such provisions for the appointment of new trustees when required, as by the court shall be deemed advisable. 20—As to laying out and making, and executing, and maintaining streets, roads, and other works, and expenses thereof Where any part of any settled estates is directed to be laid out for such purposes as aforesaid, the court may direct that any such streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or watercourses, including all necessary or proper fences, pavings, connections, and other works incidental thereto respectively, be made and executed, and that all or any part of the expenses in relation to such laying out and making and execution, be raised and paid by means of a sale or mortgage of or charge upon all or any part of the settled estates, or be raised and paid out of the rents and profits of the settled estates or any part thereof, or out of any moneys or investments representing moneys, liable to be laid out in the purchase of hereditaments to be settled in the same manner as the settled estates, or out of the income of such moneys or investments, or out of any accumulation of rent, profits, or income, and the court may also give such directions as it may deem advisable for any repair or maintenance of any such streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or watercourses, or other works, and out of any such rents, profits, income or accumulations during such period or periods of time as to the court may seem advisable. 21—How sales and dedications are to be effected under the direction of the court On every sale or dedication to be effected as herein beforementioned, the court may direct what person or persons shall execute the deed of conveyance or memorandum of transfer, and the deed of conveyance or memorandum of transfer executed by such person or persons shall take effect as if the settlement had contained a power enabling such person or persons to effect such sale or dedication, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct. 22—Application to exercise powers conferred by Act Any person either legally or equitably entitled to the possession or to the receipt of the rents and profits of any settled estates for a term of years determinable on his death, or for an estate for life, or any greater estate, and also any person entitled to the possession or to the receipt of the rents and profits of any settled estates for a term of years determinable with any life, or for an estate for any life or any greater estate, may apply to the court to exercise the powers conferred by this Act. 23—With whose consent such application to be made Subject to the exceptions hereinafter contained every application to the court must be made with the concurrence or consent of the following parties, namely— Where there is a tenant-in-tail under the settlement in existence and of full age, then the parties to concur or consent shall be such tenant-in-tail, or if there is more than one tenant-in-tail, then the first of such tenants-in-tail and all persons in existence having any beneficial estate or interest under or by virtue of the settlement prior to the estate of such tenant-in-tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of any such tenant-in-tail: And in every other case the parties to concur or consent shall be all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child. 24—Court may dispense with consent in respect of certain estates Provided, that where an infant is tenant-in-tail under the settlement, the court may dispense with the concurrence or consent of the person, if only one, or all or any of the persons, if more than one, entitled, beneficially or otherwise, to any estate or interest subsequent to the estate-tail of such infant. 25—Notice to be given to persons who do not consent to or concur in the application Provided that where on an application under this Act the concurrence or consent of any such person as aforesaid shall not have been obtained, notice shall be given to such person in such manner as the court shall direct, requiring him to notify within a time to be specified in such notice whether he assents to or dissents from such application, or submits his rights or interest, so far as they may be affected by such application, to be dealt with by the court, and every such notice shall specify to whom, and in what manner, such notification shall be delivered or left. In case no notification shall be delivered or left in accordance with the notice and within the time thereby limited, the person to or for whom such notice shall have been given or left shall be deemed to have submitted his rights and interests to be dealt with by the court. 26—Court may dispense with notice under certain circumstances Provided also, that where on an application under this Act the concurrence or consent of any such person as aforesaid shall not have been obtained and in case it shall be uncertain whether he be living or dead, or in case it shall appear to the court that such notice as aforesaid cannot be given to such person without expense disproportionate to the value of the subject matter of the application, then, and in any such case, the court, either on the ground of the rights or interests of such person being small or remote, or being similar to the rights or interest of any other person or persons, or on any other grounds, may by order dispense with notice to such person, and such person shall thereupon be deemed to have submitted his rights and interests to be dealt with by the court. 27—Court may dispense with consent, having regard to the number and interests of parties An order may be made upon any application notwithstanding that the concurrence or consent of any such person as aforesaid shall not have been obtained, or shall have been refused; but the court in considering the application shall have regard to the number of persons who concur in or consent to the application, and who dissent therefrom or who submit or are deemed to submit, their rights or interest to be dealt with by the court, and the estates or interests which such persons respectively have or claim to have in the estate as to which such application is made; and every order of the court made upon such application shall have the same effect as if all such persons had been consenting parties thereto. 28—Application may be granted without consent, saving rights of non‑consenting parties Provided, nevertheless, that the court may, to give effect to any application, subject to and so as not to affect the rights, estate, or interest of any person whose concurrence or consent has been refused, or who has not submitted, or is not deemed to have submitted, his rights or interest to be dealt with by the court, or whose rights, estate, or interest ought, in the opinion of the court, to be excepted. 29—Notice of application to be served on all trustees Notice of any application to the court under this Act shall be served on all trustees who are seized or possessed of any estate in trust for any person whose consent or concurrence to or in the application is hereby required, and on any other parties who, in the opinion of the court, ought to be so served, unless the court shall think fit to dispense with such notice. 30—Notice of application to be given in newspapers if court directs Notice of any application to the court under this Act shall, if the court shall so direct, but not otherwise, be inserted in the Government Gazette and such other newspapers as the court shall direct, and any person or body corporate, whether interested in the estate or not, may apply to the court for permission to be heard in opposition to, or in support of, any application which may be made to the court under this Act, and the court is hereby authorised to permit such person or corporation to appear and be heard in opposition to or support of any such application, on such terms as to costs or otherwise and in such manner as it shall think fit. 31—No application under this Act to be granted where a similar application has been rejected by Parliament The court shall not grant any application under this Act in any case where the applicant, or any party entitled, has previously applied to either House of Parliament for a Private Act to effect the same or a similar object, and such application has been rejected on its merits, or reported against by the judges or select committee to whom the bill may have been referred. 32—Notice of the exercise of powers to be given as directed by the court The court shall direct that some sufficient notice of any exercise of any of the powers conferred on it by this Act shall be placed in the settlement or on any copies thereof, or otherwise recorded in any way it may think proper, in all cases where it shall appear to the court to be practicable and expedient for preventing fraud or mistake. 33—Registrar-General to carry out orders of court The Registrar-General, in cases where any land dealt with under this Act shall be under the operation of the Real Property Act 1886, and any Acts amending the same, shall give effect to every order of the court by registering any transfer, lease, or other documents executed pursuant to such order; and no such order shall have any effect on the title to any such land unless and until such transfer, lease, or other document shall have been so registered. 34—Payment and application of money arising from sales, or set aside out of rent etc reserved on mining leases (1) All moneys to be received on any sale effected under the authority of this Act, or to be set aside out of the rent or payments reserved on any lease of earth, stone, or minerals as aforesaid, may, if the court shall think fit, be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into court without notice to the applicant in the matter of this Act, and such money shall be applied as the court shall from time to time direct to some one or more of the following purposes, namely: The discharge or redemption of any encumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments, subject to the same uses or trusts, or the purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid or the purchase of trustee securities; or the payment to any person becoming absolutely entitled. (2) Securities purchased pursuant to subsection (1) of this section shall for all purposes of disposition, transmission, and devolution, be considered as land, and the same shall be held for and go to the same persons successively in the same manner and for and in the same estates interests and trusts as the land wherefrom the money arises would, if not disposed of, have been held and gone under the settlement. (3) The income of those securities shall be paid or applied as the income of that land, if not disposed of, would have been payable or applicable under the settlement. (4) Those securities may be converted into money, which shall be deemed to be money arising in the same way as the money out of which the securities were purchased. (5) In this section— trustee securities means securities in which a trustee is for the time being authorised by the statutes relating to trustees to invest trust money. 35—Trustees may apply money in certain cases without application to court The application of the money in manner aforesaid may, if the court shall so direct, be made by the trustees (if any) without any application to the court, or otherwise upon an order of the court, on the application of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. 36—Until money can be applied to be invested and dividends to be paid to parties entitled Until the money shall be directed by the court to be applied as aforesaid, the same shall be invested as the court shall direct in some or one of the investments in which cash under the control of the court is for the time being authorised to be invested, and the interest and dividends of such investments shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. 37—Court may direct application of money in respect of leases or reversions as may appear just Where any purchase-money paid into court under the provisions of this Act shall have been paid in respect of any lease or any estate in lands less than the whole fee-simple thereof, or of any reversion dependent on any such lease or estate, the court may, on the application of any party interested in such money, order that the same shall be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be. 38—Court may exercise powers repeatedly The court may exercise any of the powers conferred on it by this Act, whether the court shall have already exercised any of the powers conferred by this Act in respect of the same property or not; and the circumstance of the settlement containing powers to effect similar purposes shall not preclude the court from exercising any of the powers conferred by this Act, if it shall think that the powers contained in the settlement ought to be extended. 39—Court not to authorise any act which could not have been authorised by the settlor Nothing in this Act shall be construed to empower the court to authorise any lease, sale, or other act beyond the extent to which in the opinion of the court the same might have been authorised in and by the settlement by the settlor or settlors. 40—Acts of the court in professed pursuance of this Act not to be invalidated After the completion of any lease or sale, or other act under the authority of the court, and purporting to be in pursuance of this Act, the same shall not be invalidated on the ground that the court was not hereby empowered to authorise the same, except that no such lease, sale, or other act, shall have any effect against such person as herein mentioned, whose concurrence or consent ought to be obtained, or who ought to be served with notice, or in respect of whom an order dispensing with such service ought to be obtained in the case where such concurrence or consent has not been obtained, and such service has not been made or dispensed with. 41—Costs The court may order that all or any costs or expenses of all or any parties of and incident to any application under this Act, shall be a charge on the hereditaments which are the subject of the application, or on any other hereditaments included in the same settlement and subject to the same limitations; and the court may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such costs and expenses to be taxed as the court shall direct. 42—Rules and orders General rules and orders of court for carrying into effect the purposes of this Act, and for regulating the times, and form, and mode of procedure and generally the practice of the court and the mode of procedure and practice of the Registrar-General in respect of the matters to which the Act relates, and for regulating the fees and allowances to all officers and solicitors of the court in respect to such matters shall be made by the judges of the Supreme Court; and such rules and orders may from time to time be rescinded or altered by the like authorities, and all such rules and orders shall take effect as general rules or orders of the court. 43—Rules and orders to be laid before Parliament All general rules and orders made as aforesaid shall be laid before each House of Parliament within thirty days after the making thereof if Parliament is then sitting, or if not, within thirty days after the commencement of the then next ensuing session; and if an address is presented to the Governor by either House of Parliament within the next subsequent thirty days on which such House shall have sat, praying that any such rule or order may be annulled, the Governor may thereupon annul the same, and the rule or order so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same. 44—Tenants for life etc may grant leases for 21 years Any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for any life, or for a term of years determinable with any life or lives, or for any greater estate (unless the settlement shall contain an express declaration that it shall not be lawful for such person to make any demise), without any application to the court, may demise the same or any part thereof, from time to time, for any term not exceeding twenty-one years, to take effect in possession at or within one year next after the making thereof: Provided that every such demise be made by deed or duly registered memorandum of lease and the best rent that can reasonably be obtained be thereby reserved, without any fine, premium, or foregift, or other benefit in the nature of a fine, premium, or foregift, which rent shall be incident to the immediate reversion: and provided that such demise be not made without impeachment of waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non-payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf: and provided a counterpart of every such lease be executed by the lessee. 45—Against whom such leases shall be valid Every lease authorised by the last preceding section shall be valid against the person granting the same, and all other persons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled; and, in the case of unsettled estates, against all persons claiming through or under the spouse of the person granting the same. 46—Evidence of execution of counterpart lease by lessee The execution of any lease by the lessor or lessors shall, on behalf of the lessee or any person claiming under him, be deemed sufficient evidence that a counterpart of such lease has been duly executed by the lessee as required by this Act. 47—Provision as to infants, lunatics etc All powers given by this Act, and all applications to the court under this Act, and consents to and notifications respecting such applications, may be executed, made, or given by, and all notices under this Act may be given to guardians on behalf of infants, and by or to committees on behalf of lunatics, and by or to trustees or assignees of estates of insolvents, or estates assigned under the law of insolvency: Provided, nevertheless, that in the cases of infant or lunatic tenant-in-tail no application to the court or consent to or notification respecting any application may be made or given by any guardian or committee without the special direction of the court. 51—No obligation to make or consent to application etc Nothing in this Act shall be construed to create any obligation on any person to make or consent to any application to the court or to exercise any power. 52—Tenants for life etc to be deemed entitled, notwithstanding encumbrance For the purposes of this Act, a person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of estates, although his estate may be charged or encumbered either by himself or by the settlor, or otherwise howsoever to any extent, but the estates or interests of the parties entitled to any such charge or encumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and profits as aforesaid, unless they shall concur therein. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 1880 182 The Settled Estates Act 1880 25.10.1880 25.10.1880 1943 17 Settled Estates Act Amendment Act 1943 9.12.1943 25.10.1880: s 3(2) 2006 17 Statutes Amendment (New Rules of Civil Procedure) Act 2006 6.7.2006 Pt 68 (ss 214—219)—4.9.2006 (Gazette 17.8.2006 p2831) 2016 35 Statutes Amendment (Gender Identity and Equity) Act 2016 4.8.2016 Pt 11 (s 36)—8.9.2016 (Gazette 8.9.2016 p3676) 2019 46 Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019 19.12.2019 Pt 15 (ss 33 & 34)—1.5.2020 (Gazette 30.4.2020 p838) Provisions amended since 3 February 1976 New entries appear in bold. Provision How varied Commencement s 22 amended by 17/2006 s 214 4.9.2006 s 28 amended by 17/2006 s 215 4.9.2006 s 30 amended by 17/2006 s 216 4.9.2006 s 34

s 34(1) amended by 17/2006 s 217 4.9.2006 s 35 amended by 17/2006 s 218 4.9.2006 s 37 amended by 17/2006 s 219 4.9.2006 s 44 amended by 46/2019 s 33(1), (2) 1.5.2020 s 45 amended by 46/2019 s 34(1), (2) 1.5.2020 ss 48—50 deleted by 35/2016 s 36 8.9.2016 Historical versions 4.9.2006

8.9.2016

1 Settled Estates Act 1880

South Australia Settled Estates Act 1880 An Act to amend the law relating to leases and sales of settled estates.

The Act rests on a small set of legal concepts which structure both rights and processes. "Settlement" and "settled estates" are defined broadly to include deeds, wills, instruments and combinations of instruments that limit hereditaments in trust or by succession (s 2). For the purpose of the Act a tenant‑in‑tail after possibility of issue extinct is treated as a tenant for life (s 2). The "court" means the Supreme Court of South Australia or a judge thereof (s 3). These definitional choices fix who may apply, who is protected, and which properties are within scope.

Primary substantive concepts: authorisation, concurrence/consent, notice, reservation of rent, trustee securities and investment, and limitation by settlor's power. The court is empowered to authorise leases for any purpose provided certain formal conditions are met, notably the term limits and rent requirements specified in s 4. Leases may include special covenants the court thinks expedient (s 5), and the power extends to the whole estate or parts of it, to surrenders and renewals, and to preliminary contracts to grant leases (ss 6-8).

Consent and notice are central procedural concepts. Applicants must usually secure concurrence or consent of persons entitled under the settlement (s 23), but the court may dispense with consent or notice where persons are infants, uncertain as to being alive, or where giving notice would be disproportionately expensive relative to the value concerned (ss 24-26). The court must have regard to the number and interests of the parties who consent or dissent (s 27). Applications that Parliament has already rejected are barred (s 31).

Financial treatment of proceeds and reserved payments is a distinct conceptual cluster. The Act contemplates payment of sale proceeds or sums set aside from mineral rents to trustees or into court and prescribes purposes for application, such as discharging encumbrances, buying substitute hereditaments to be settled likewise, or acquiring trustee securities (s 34). Trustee securities are treated as land for succession purposes (s 34(2)); income is to be paid as if the land had not been disposed of (s 34(3)). Until direction, the court will invest such monies in approved investments with interest paid to the person who would have been entitled to land income (s 36). Trustees may be authorised to apply money without further court application where the court so directs (s 35).

Backstops and limits are explicit. The court must not authorise acts that could not have been authorised by the settlor (s 39). Acts done purporting to be authorised are protected against invalidation except in respect of persons whose consent or notice ought to have been obtained (s 40). The court may make rules of practice for the scheme (s 42) subject to parliamentary scrutiny (s 43).

Operational concepts such as vesting leasing powers in trustees (s 12), appointing persons to execute leases or conveyances on behalf of persons under settlement (ss 11, 21), and the Registrar‑General’s role in registering instruments where land is registered under the Real Property Act (s 33) complete the conceptual map.

The Act creates duties and opportunities for multiple identifiable groups. The primary decision‑maker is the Supreme Court of South Australia, or a judge thereof, which authorises leases, sales, dedications and protective proceedings and may make consequential orders (s 3; ss 4, 9, 15, 16, 19). Applicants are persons entitled either legally or equitably to possession or to rents and profits of settled estates for life, for a term of years determinable on death, or for greater estates, and also those entitled for terms determinable with any life or for any life or greater estate (s 22). Trustees of settlements are affected both as parties who may hold powers and as persons on whom notice must be served (ss 12, 29).

Beneficiaries under settlements are a core affected group. The Act requires concurrence or consent of persons in existence having beneficial estates or interests under the settlement, and trustees holding for unborn children must be included (s 23). Where consent is not obtained, such persons must generally be given notice and an opportunity to state assent or dissent (s 25). The court may dispense with notice or consent for persons who are minors, uncertain as to being alive, or whose interests are small or remote, but those mechanics materially affect entitlements and protections (ss 24-27).

Life tenants and tenants for life are specifically given limited autonomy: without court application they may grant leases up to 21 years under specified conditions (ss 44-46). Persons whose concurrence or consent must be obtained but are not served or who have not submitted may nonetheless be protected from dispositions that would otherwise affect their rights (s 40). Persons claiming through or under spouses in the case of unsettled estates are also affected by the lessor’s 21‑year leasing power (s 45).

Purchasers and lessees are affected because leases and sales authorised under the Act are to be given effect as if the lessor or seller were absolutely entitled at the time of execution (ss 11, 21), and instruments are to be registered by the Registrar‑General where the Real Property Act applies (s 33). Where mining or mineral leases are involved, parties are affected by the statutory requirement to set aside portions of rent and invest them for beneficiaries, with proportions dependent on whether the recipient has mineral working rights (s 4(1) Thirdly; s 34).

Public authorities, ratepayers or local government may be indirectly affected where the court directs dedication of land for streets, sewers, drains and other public works and directs how expenses are to be raised and who is to maintain them (ss 19-20). The Act authorises that costs of applications, including protective proceedings, may be charged on the settled hereditaments and raised by sale or mortgage or from rents and profits (s 16; s 41). Finally, officers of the court and the Registrar‑General are affected because the Supreme Court may make procedural rules and set fees for officers and solicitors engaged in carrying out the Act (s 42).

The Act imposes duties on applicants and the court and prescribes rights for beneficiaries and other parties. Duty to produce evidence: when applying to the court to approve a lease or vest leasing powers in trustees, the applicant must produce such evidence as the court requires to ascertain the estate’s nature, value and circumstances and the terms leases ought to have (s 10). Duty to secure consent or give notice: generally an application must be made with the concurrence or consent of specified beneficiaries or trustees (s 23), or if concurrence is not obtained, notice must be given requiring the person to notify assent or dissent within a time fixed by the court (s 25). The court may direct publicity in the Government Gazette or other newspapers (s 30).

The court has duties of evaluation and discretion. It may authorise leases, sales or dedications only if it deems the action proper and consistent with due regard to the interests of all parties entitled under the settlement and subject to the Act’s restrictions (ss 4, 15, 19). When authorising leases, the court must ensure formal conditions are observed, such as lease commencement, maximum terms by class, reservation of best rent, prohibition on fines, and formality of deed or registered memorandum with counterpart execution by lessee (s 4). For minerals, the court must ensure particular portions of rent are set aside and applied by trustees as directed (s 4(1) Thirdly; s 34).

Rights created or confirmed include the right of applicants who satisfy statutory and court requirements to obtain authorisation for leases, sales, dedications and protective proceedings (ss 4, 9, 15, 16, 19). Life tenants have a statutory right, without court application, to grant leases up to 21 years if conditions are met, including reservation of best rent, no premium, covenant for rent payment, re‑entry condition, and counterpart execution (s 44). Trustees vested with leasing powers by the court have authority to act as if the settlement originally contained such powers; the court may impose conditions and authorise appointment of new trustees to exercise such powers (s 12).

Financial duties and directions are detailed. Where sale proceeds or sums set aside under mineral leases are paid into court or to trustees, the money must be applied for specified purposes such as discharging encumbrances, purchasing substitute hereditaments to be settled similarly, or purchase of trustee securities, with the court directing investment and income distribution (s 34). Trustees may be directed to apply monies without further court application (s 35), and until applied the court must invest the money in approved investments and pay income to the persons who would have received rents if the land remained (s 36). The court may charge costs of applications on the hereditaments in question and direct how those costs shall be raised (s 41).

Limitations on rights are explicit. The court cannot authorise any act beyond what the settlor could have authorised under the settlement (s 39). Acts done under the Act are protected against being invalidated after completion except where the required consent or notice should have been obtained and was not (s 40). Finally, nothing in the Act creates an obligation on any person to make or consent to an application or to exercise any power (s 51).

The Act itself does not create criminal offences or express monetary penalties for non‑compliance. Instead it structures enforcement through the Supreme Court’s orders, directions on registration, and equitable treatment of interests and funds. Enforcement mechanisms fall into three main forms.

First, judicial control. The Supreme Court is central to authorisation and is empowered to approve leases, sales, dedications and protective proceedings and to make consequential orders as to execution, vesting and the appointment of trustees (ss 3, 4, 9, 11, 12, 21). Where the court makes orders, it can direct how instruments are to be executed and instruct the Registrar‑General to effect registration of instruments where land is under the Real Property Act 1886 (s 33). The court’s orders therefore have practical, enforceable effect via registration and operation of land law.

Second, equitable and property consequences. Instruments executed pursuant to court direction take effect as if the executing person had been absolutely entitled and, where necessary, operate by way of revocation and appointment of uses as the court directs (ss 11, 12, 21). Sale proceeds or funds set aside from mineral rents paid into court or to court‑approved trustees are to be applied in accordance with court directions; misapplication would attract the court’s remedial powers over trustees and funds held on trust (s 34). The court may order costs of and incidental to applications to be charged on the hereditaments or raised by sale or mortgage or out of rents and profits (s 41). These property and trust mechanisms provide enforcement levers rather than statutory penalties.

Third, procedural controls and protection of third parties. The Act preserves finality for acts completed under the authority of the court; after completion such acts are not to be invalidated on the ground the court lacked power, except as regards persons whose consent or notice should have been obtained and was not (s 40). The Registrar‑General is required to register transfers, leases and other documents executed pursuant to orders where land is registered, and no such order has effect on registered title until registration occurs (s 33). This registration requirement channels enforceability through the Torrens system: practitioners, purchasers and mortgagees rely on the register, subject to the caveat that registration only gives effect after the documents are registered.

Costs orders are an enforcement lever with financial consequence. The court may order costs to be a charge on the settled hereditaments and direct how the costs are to be raised, providing a practical mechanism to recover litigation or application costs from the estate (s 41). The Act also expressly authorises the court to sanction protective proceedings and to order that costs may be raised and paid by sale, mortgage, charge, or out of rents and profits (s 16). This makes the estate liable to bear application and protective costs if the court so orders.

No specific criminal sanction, fines, or default penalties are specified in the Act for breach of its provisions. Enforcement is exercised through court directions, equitable remedies, trust law and the land registration system. The absence of penal provisions means non‑compliance is remedied through civil and equitable processes rather than criminal enforcement.

The Act is designed to operate within the existing property and court framework. It explicitly identifies the Supreme Court as the decision maker, thereby functioning as a procedural and substantive adjunct to the Court’s existing jurisdiction (s 3; ss 42-43 on rules). Interaction with Torrens land registration is explicit. Where land is under the operation of the Real Property Act 1886 and its amending Acts, the Registrar‑General is required to give effect to every order of the court by registering transfers, leases or other documents executed pursuant to such order, and the court’s order has no effect on title until registration occurs (s 33). This places the Act within the mechanics of registered title, making registration a necessary step for enforceability against third parties.

Trusts and trustee law are engaged. The Act contemplates payment of sale proceeds or rents into court or to trustees and permits investment in "trustee securities" as defined by trustee statutes (s 34). It treats such securities as land for disposition, transmission and devolution purposes (s 34(2)), thereby aligning the treatment of substitute investments with settled land under trust law. The court’s power to vest leasing powers in trustees, and to authorise trustees to apply money without further application to the court where permitted, dovetails with trustee investment and duty regimes (s 12; s 35).

Procedure and court rules are linked. The Act gives the judges of the Supreme Court authority to make general rules and orders for carrying the Act into effect and to regulate procedure and fees for officers and solicitors involved in matters under the Act (s 42). Those rules are subject to parliamentary oversight and potential annulment by the Governor upon address from either House (s 43). The Act therefore constructs a regulatory layer over court processes subject to legislative scrutiny.

Parliamentary procedure and private acts interact through s 31. The court is prohibited from granting an application where a party or a person entitled previously applied to Parliament for a private Act to effect the same or similar object, and such application was rejected on the merits or reported against by judges or committee. This provision creates an explicit functional interaction between court remedies under the Act and the availability of private parliamentary relief.

The Act is not stand‑alone on incapacity regimes. It allows guardians, committees and trustees or assignees under insolvency law to act or be served on behalf of infants, lunatics, insolvents and similar persons, subject to a special direction of the court in certain cases such as infant or lunatic tenants‑in‑tail (s 47). This integrates the Act with guardianship, mental incapacity and insolvency procedures.

Finally, the Act preserves the settlor’s residual capacity as a limiting principle: the court may not authorise acts beyond those which, in the court’s opinion, the settlor could have authorised under the settlement (s 39). That limitation requires the court to read the settlement instrument in a manner consistent with established property and trust law rights and the settlor’s original powers.

The legislative history in the Act itself records a number of amendments and deletions spanning 1880 to 2019. The principal Act is the Settled Estates Act 1880 (No 182), assented and commenced 25 October 1880. Subsequent amendments recorded in the legislative history include:

Settled Estates Act Amendment Act 1943 (No 17), assented 9 December 1943. The legislative history records a cross‑reference to s 3(2) commencing 25 October 1880, but the Act listing shows the 1943 amending Act as part of the historical record.
Statutes Amendment (New Rules of Civil Procedure) Act 2006 (No 17), assented 6 July 2006, with Part 68 (ss 214-219) commencing 4 September 2006. Multiple provisions of the Settled Estates Act were amended by this 2006 Act: s 22 was amended by s 214 of the 2006 Act; s 28 by s 215; s 30 by s 216; s 34(1) by s 217; s 35 by s 218; and s 37 by s 219. The legislative history notes those amendments and their commencement dates.
Statutes Amendment (Gender Identity and Equity) Act 2016 (No 35), assented 4 August 2016, with Part 11 (s 36) commencing 8 September 2016. The history notes that ss 48-50 of the Settled Estates Act were deleted by s 36 of the 2016 Act, with that deletion effective from 8 September 2016.
Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019 (No 46), assented 19 December 2019, with Part 15 (ss 33 & 34) commencing 1 May 2020. The legislative history records that s 44 was amended by s 33(1), (2) of the 2019 Act and s 45 was amended by s 34(1), (2) of the 2019 Act, with those amendments commencing 1 May 2020.

The "Provisions amended since 3 February 1976" table in the Act lists the specific sections amended and the relevant amending provisions, together with commencement dates that in many cases track the 2006, 2016 and 2019 Acts. Historical versions of the settled estates statute are flagged as available for 4 September 2006 and 8 September 2016.

The legislative history notes also caution that references to other legislation, instruments, or offices may not be automatically updated and may be obsolete. It points users to the Index of South Australian Statutes and the legislation.sa.gov.au website for further information. No other amendments are recorded in the text provided beyond those entries. The Act as now printed thus embodies a layering of late 19th century substantive provisions with procedural amendments from the 20th and early 21st centuries, and the deletion of older sections in 2016.

The text supplied contains no citations to judicial decisions or precedent. The Act’s legislative history lists amendments and deletions, but does not record case law. The Act therefore, on its face, has no litigation history supplied in this source document. Practitioners should treat that absence as a limitation of the supplied text rather than as evidence the Act has not been litigated.

Given the Act confers discretionary powers on the Supreme Court, and establishes procedural conditions about consent, notice and application of funds, natural litigation vectors are foreseeable even if not recorded here. Potential areas for litigation or contested judicial determination that the Act itself highlights include:

Interpretation of what is "proper and consistent with a due regard for the interests of all parties entitled under the settlement" when the court authorises leases, sales or dedications (ss 4, 15, 19). Disputes could arise over adequacy of evidence under s 10 and whether the court properly balanced competing interests.
Application and scope of the consent and notice provisions, including when the court may properly exercise its dispensing powers under ss 24-27, and the effect of deemed submission where notice is not validly responded to (s 25). Litigation could test what constitutes disproportionate expense or remoteness of interest warranting dispensation under s 26.
The court’s power to vest leasing powers in trustees and to authorise provisions for appointment of new trustees (s 12), especially where the exercise affects contingent or unborn interests.
Treatment and application of money arising from sales or set aside from mineral rents, including whether the court’s directions as to investing in trustee securities and treating such securities as land (s 34) have been correctly applied by trustees or the Registrar. Disputes over whether investment choices give the same benefit as the original lease or reversion (s 37) are feasible.
The limits imposed by s 39 that the court not authorise acts beyond the settlor’s power, and the protective retention under s 40 that completed acts are not invalidated except in specified circumstances, could give rise to litigation on the application of those safeguards.
The Registrar‑General’s role under s 33 in giving effect by registration to court orders, and the timing of when an order takes effect on title, could be a source of dispute where third party rights arise between court order and registration.

Because the supplied text does not record any reported decisions, practitioners and researchers should check the Supreme Court of South Australia’s judgments, Law Reports and electronic databases for cases construing these provisions, particularly on s 4(1) rental standards, the exercise of dispensing powers under Part IV (ss 22-31), funds application under s 34 and trustees’ powers under s 12. The Act’s long life and its interface with trustee and property law make it likely that judicial interpretation exists; the absence of such case references in the source means one must consult contemporary case law databases for authoritative construction.

The Act contains a number of procedural and substantive traps for the unwary that carry practical consequences for property rights, trustee duties and the commercial attractiveness of dealings. Below are the principal "gotchas", each grounded in the relevant statutory text.

Consent and notice mechanics. An application generally requires concurrence or consent of specified beneficiaries and trustees (s 23). Failure to obtain consent triggers mandatory notice procedures (s 25). If a person does not respond to notice within the time specified, they are deemed to have submitted their rights to the court (s 25). That deemed submission can extinguish the practical ability of an objecting party to resist an application if notification is properly framed. Conversely, if the court should have obtained consent or given notice but did not, s 40 protects completed acts against invalidation except as to the unserved or non‑consenting person, who may still impede the effect of the act on their rights.
Parliamentary bar. If an applicant previously sought a private Act of Parliament to achieve the same result and Parliament rejected it on the merits, the court must not grant the application (s 31). Practitioners must check parliamentary history; a rejected private bill can be a bar to relief under the Act.
Registration requirement. Where the land is subject to the Real Property Act 1886, court orders have no effect on title until the Registrar‑General registers the transfer, lease, or document (s 33). This creates a temporal window between court order and recorded title during which third party consequences, priority disputes, or competing claims may arise.
Mineral rents and deduction-to-trust. For leases of earth, stone, or mineral the Act requires a portion of rent to be set aside and invested with proportions fixed by whether the rent recipient has working rights , one‑fourth if the recipient can work minerals for their own benefit, otherwise three‑quarters (s 4(1) Thirdly). This reduces immediate distributable income and imposes an administrative burden to appoint trustees and invest properly (s 34). It is a substantive constraint that affects valuation and bargaining for mineral leases.
Limit on court power relative to settlor. The court cannot authorise acts beyond what the settlor could have authorised (s 39). That limitation may be less predictable than it first appears because it requires interpretation of the original settlement instrument and the settlor’s powers at the time the settlement took effect (s 2). A poorly drafted settlement instrument can therefore impede otherwise sensible commercial transactions.
No statutory penalty but costs can be charged. The Act lacks criminal offences or specified fines. However the court may order costs of applications and incidental expenses to be a charge on the hereditaments and direct how they are raised, which can substantially affect net proceeds (s 41). Parties should therefore budget for the possibility of costs being recovered from the estate.
Trustee power vesting and subsequent control. The court may vest leasing powers in existing or newly appointed trustees and may authorise appointment of new trustees for the purpose (s 12). Orders may, however, contain conditions requiring leases to be settled by the court unless varied. While s 13 prohibits inserting such a condition in orders generally, s 13 allows it if the parties request or special reasons exist; s 14 allows interested parties to apply to strike out such a condition. This patchwork can be a source of surprise.
Life tenant leasing without court application is limited and conditional. A person entitled for life may without court application grant leases up to 21 years (s 44). However statutory conditions are strict: best rent to be reserved, no fine or premium, re‑entry clause for non‑payment, counterpart executed by lessee, and no demolition waste immunity implied (ss 44-46). Failure to meet these formalities can render the lease ineffective against subsequent interest holders.
Deemed treatment of trustee securities as land. Money invested in trustee securities under s 34 is to be treated for disposition and succession purposes as land (s 34(2)). That has succession and stamp duty implications and requires careful drafting to ensure that the substitute investment preserves the intended trust structure.
Dispensation of consent based on proportionality or remoteness. The court may dispense with notice or consent where the cost of notice is disproportionate to value or where interests are small or remote (s 26). While practically useful, this discretion introduces uncertainty and potential litigation over whether the court’s exercise was justified.

Practitioners must check the settlement, secure appropriate evidence under s 10, assess whether prior parliamentary action engages s 31, plan for registering instruments under s 33, anticipate trust and investment obligations under s 34, and carefully handle notices and consents under ss 23-31.

To comply with the Act while minimising risk and cost, a pragmatic, document‑driven process should be followed. The following steps align with statutory duties and court expectations.

Identify scope and parties. Begin by identifying whether the land or interest is a "settled estate" within the Act’s definition, which requires reading the settlement instrument(s) and the state of trusts and limitations at the time the settlement took effect (s 2). Identify all persons in existence who have beneficial estates or interests under the settlement and trustees holding for unborn children, as these persons are the primary parties whose concurrence or notice is required (s 23).
Consider the settlor’s powers. Assess whether the intended act could have been authorised by the settlor under the settlement; s 39 prevents the court from authorising anything beyond that extent. If the settlement is restrictive, evaluate whether alternative routes such as trustee‑vesting orders under s 12 could achieve the objective consistent with settlor limits.
Assemble evidence. Prepare the evidence the court will require under s 10 to enable it to ascertain the nature, value and circumstances of the estate and the terms on which leases or sales ought to be authorised. Expect valuations, schedules of interests, details of encumbrances, and proposed instrument drafts.
Manage consents and notices. Obtain the concurrence or consent of required parties where feasible (s 23). If consent cannot be obtained, draft notices consistent with s 25 specifying the recipient, the manner of response, and a time limit. Where persons are uncertain to be alive, or where notice would be disproportionate in cost, make an application under s 26 to dispense with notice and provide supporting affidavit evidence of attempts to locate parties and valuation showing disproportionate expense.
Plan for publication and third party participation. If the court directs, prepare Gazette and newspaper notices as s 30 permits. Anticipate that third parties may seek to be heard and be prepared on costs consequences if the court permits external appearances.
Draft instruments to statutory form. Ensure leases and conveyances comply with s 4 formalities: commencement within one year, appropriate maximum terms for the lease class, reservation of best rent without fine or premium (unless the court directs otherwise as permitted), condition for re‑entry on arrears, and execution by deed or duly registered memorandum with counterpart executed by lessee. For life tenant 21‑year leases under s 44 ensure all statutory covenants and conditions are included.
Account for minerals and investment. Where earth, stone or minerals are involved, structure leases to ensure the required portion of rent is set aside and trustees are appointed to invest and apply those sums as the court directs (s 4(1) Thirdly; s 34). Prepare proposals for trustee securities and schedules showing how the substitute investments will preserve beneficiary entitlements, noting s 34(2) treats trustee securities as land for succession purposes.
Engage trustees and consider vesting of leasing power. Where ongoing leasing authority is desirable, apply under s 12 to vest powers in trustees, and propose any conditions on their exercise. If the court is to authorise trustees to apply sale money without further application, seek that direction under s 35 and be prepared to justify proposed applications.
Address encumbrances and costs. Where proceeds are to be applied to discharge encumbrances or pay costs, prepare clear schedules and proposals for the court to authorise under s 34 and s 41. Expect the court to consider whether costs should be a charge on the hereditaments and the mechanism for raising those costs.
Register instruments and follow post‑order steps. For Torrens land, submit instruments to the Registrar‑General for registration as required by s 33. Until registration the order may not affect registered title. For proceeds paid into court or to trustees, follow the court’s directions on investment under s 36 and s 34 and ensure proper accounting and distributions per court orders.
Document parliamentary checks. Before applying, check whether a prior private Act application has been rejected by Parliament for the same or a similar object. If so, the court is barred from granting the application under s 31. Obtain parliamentary history evidence to avoid wasted steps.
Preserve record and anticipate review. Maintain contemporaneous records of notice attempts, valuation evidence, drafts, trustee appointments and bank/investment dealings for the court’s scrutiny and to defend any later challenge under s 40.

In short, compliance is procedural and documentary. It requires early identification of parties, careful drafting of statutory notices and instruments, transparent accounting proposals for proceeds and mineral rents, proactive trustee arrangements, and timely registration where Torrens title applies. Anticipate the court’s balancing role under ss 4 and 15 and tailor applications to demonstrate the proposed transaction is consistent with a due regard for the interests of all parties entitled under the settlement.

Settled Estates Act 1880

Plain English Summary

Deep Dive

What it does

Current sections

Settled Estates Act 1880

Source text: opening excerpt

1 Settled Estates Act 1880

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply