Test sections 75 and 76 before a New South Wales compromise binds
MaintainedLast reviewed
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- Compare the date of birth, the capacity material the lawyer has selected, and whether a proceeding has started, and list whether section 75 or section 76 requires approval before the compromise binds. Write nothing that is filed or signed.
- What the lawyer must review
- Match the stage of the claim to section 75 or section 76
- Turning 18 removes approval only where section 76(3A) says so
- A tutor at the start does not itself prove incapacity now
Rules that apply
The document starts from the task name. Change it if this piece of work is different.
The work product
Forum. New South Wales
Produce. A note of which approval section the facts appear to touch.
Have ready. The date of birth; Whether a proceeding has started; The capacity material the lawyer has selected.
Example of the limit. Illustrative example: Proceedings are on foot and the person turned 18 last month. The note asks whether section 76(3A) applies. It does not say the compromise binds.
Stop and hand it back when
- The tool would say the compromise binds.
- The tool would prepare the approval papers.
Sources for this task were checked on 2026-10-23.
Who does what
| Role | What they do |
|---|---|
| Assistance | Compare the date of birth, the capacity material the lawyer has selected, and whether a proceeding has started, and list whether section 75 or section 76 requires approval before the compromise binds. Write nothing that is filed or signed. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Before proceedings, section 75 applies to a claim, enforceable by proceedings, made by or on behalf of, or against, a person under legal incapacity. The court may approve or disapprove an agreement for compromise. A disapproved agreement does not bind. An approved agreement binds the person as if they were of full capacity.
- Once proceedings have been commenced by or on behalf of, or against, a person under legal incapacity, a person who becomes one during the proceedings, or a person the court finds incapable of managing their affairs, section 76(3) says there may not be a compromise, or an acceptance of money paid into court, without the court's approval.
- Section 76(3A) says approval is not required if, on the day the agreement is made, the person has turned 18 and is not otherwise a person referred to in section 76(1). A finding under section 76(1)(c) can be made only on evidence in the proceeding, and only for that proceeding.
- The Judicial Commission bench book says that starting a proceeding by a tutor does not itself establish incapacity for section 76. The question is decided at the time of the proposed settlement. The list records the question. It does not answer it.
Sources
- Civil Procedure Act 2005 (NSW), section 75 · 2026-10-23
- Civil Procedure Act 2005 (NSW), section 76 · 2026-10-23
- Judicial Commission of NSW, Civil Bench Book, compromise of claims by persons under legal incapacity · 2026-10-23
Health and wage records stay in a firm-controlled tool. The lawyer applies ASCR r 9 and APP 11, and decides whether any breach is notifiable under the Privacy Act 1988 (Cth).
The bench book states the section 76 test as whether the court is satisfied the compromise is in the best interests of the plaintiff. This list does not apply that test.