New South Wales Consolidated Acts

LIMITATION ACT 1969 - SECT 53

53 Notice to proceed

(1) In this section,
"curator" means--

(a) in respect of a person--

(i) who is a patient within the meaning of the Mental Health Act 1958 , including a person detained in a mental hospital under Part 7 of that Act,

(ii) who is a voluntary patient within the meaning of that Act whose property has been taken in charge under section 22 of that Act by the master assigned to the Protective Division of the Supreme Court, or

(iii) to whose property section 101 of that Act applies--

the master assigned to the Protective Division of the Supreme Court,

(b) in respect of a protected person within the meaning of that Act, where a committee of the person's estate is appointed under section 38 of that Act--the committee,

(c) in respect of an incapable person within the meaning of that Act, where a manager of the person's property is appointed under section 39 of that Act--the manager, and

(d) in respect of a person of whose estate a committee is appointed under section 48 of the Act--the committee.

(1A) In this section
"the master assigned to the Protective Division of the Supreme Court" means, where two or more masters are so assigned, the senior master so assigned.

(2) Where a person having a cause of action is under a disability but has a curator, a person against whom the cause of action lies may give to the curator a notice to proceed in accordance with this section.

(3) Where, after a notice to proceed is given under this section, an action is brought--

(a) by the person under a disability or by the person's curator or by a person claiming under the person under a disability,

(b) on a cause of action to which the notice to proceed relates, and

(c) against the person giving the notice to proceed or against the person's successor under a devolution happening after the notice to proceed is given,

subsection (1) of section 52 has effect as if--

(d) the person under a disability ceases, on the date of the giving of the notice, to be under any disability under which the person is immediately before the giving of the notice, and

(e) the person does not, after the giving of the notice, come under that disability.

(4) A notice to proceed under subsection (2) must--

(a) be in writing,

(b) be addressed to the curator,

(c) show the name of the person under a disability,

(d) state the circumstances out of which the cause of action may arise or may be claimed to arise with such particularity as is necessary to enable the curator to investigate the question whether the person under a disability has the cause of action,

(e) give warning that a cause of action arising out of the circumstances stated in the notice is liable to be barred by this Act, and

(f) be signed by the person giving the notice.

(5) Minor deviations from the requirements of subsection (4), not affecting the substance nor likely to mislead, do not invalidate a notice to proceed.

(6) A notice to proceed to be given to the master assigned to the Protective Division of the Supreme Court shall be given by leaving it at the office of the master.

(7) A notice to proceed to be given to a curator, other than the master assigned to the Protective Division of the Supreme Court, may be given by--

(a) delivering the notice to proceed to the curator,

(b) leaving the notice to proceed at the usual or last-known place of business or of abode of the curator, or

(c) posting the notice to proceed by the certified mail service to the curator at his or her usual or last-known place of business or of abode.

(8) A notice to proceed given in accordance with subsection (6) or subsection (7) is, for the purposes of this section, given on the date of leaving delivering or posting as the case may be.

(9) Subsections (7) and (8) do not prevent the giving of a notice to proceed to a curator, other than the master assigned to the Protective Division of the Supreme Court, by any other means.

(10) A notice to proceed under this section is not a confirmation for the purposes of section 54 and is not an admission for any purpose by the person giving the notice.