Gouder v - [2005] NSWSC 1116

CITATION:
Gouder -v- [2005] NSWSC 1116

HEARING DATE(S): 27/10/2005

JUDGMENT DATE :

27 October 2005

JUDGMENT OF:
Gzell J

DECISION:
Rectification of name of principal in instrument ordered under inherent power.

CATCHWORDS:
PROCEDURE - Supreme Court Procedure - Power of Attorney executed by wrong principal by mistake - Whether attorney should be appointed tutor of incommunicant principal to make application for alteration of the instrument under the Conveyancing Act 1919, s 163G or to confirm power to do an act under the Powers of Attorney Act 2003, s 31 - Whether Court should exercise inherent power to rectify the instrument - Whether antecedent contract necessary - Whether the power to rectify extends to deeds poll

LEGISLATION CITED:
Conveyancing Act 1919
Powers of Attorney Act 2003
Uniform Civil Procedure Rules 2005

CASES CITED:
MacKenzie v Coulson (1869) LR 8 Eq 368
Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, Butterworths Lexis Nexis, Australia

PARTIES:
Ronald Gouder - Plaintiff

FILE NUMBER(S):
SC 5456/05

COUNSEL:
Mr R J Brender

SOLICITORS:
Teece Hodgson & Ward

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 27 OCTOBER 2005

5456/05 RONALD GOUDER – v-

EX TEMPORE JUDGMENT

1 I have before me an ex parte application to amend the name of the principal in a general power of attorney that was executed as a protected power of attorney in terms of the Conveyancing Act 1919, s 163F(2).

2 A husband and wife, Jacques Ballardine and Simone Ballardine, executed joint wills. Powers of attorney in favour of the applicant, Ronald Gouder, had been prepared for their execution at the same time. The execution of the powers of attorney was witnessed by Alan McKimm, a solicitor, who explained to each the nature of the document to be executed. Unfortunately, Mrs Ballardine executed the document granting a power of attorney to Mr Gouder by Mr Ballardine and he executed his wife's power of attorney. Mrs Ballardine is deceased. Mr Ballardine is incommunicate as that term is defined in the Conveyancing Act 1919, s 163D and the medical evidence establishes that there is a need for Mr Gouder to act.

3 Reference has been made to various bases upon which the court might act to cure the defect in the power of attorney given by Mr Ballardine.

4 The Powers of Attorney Act 2003 continues in operation provisions of the Conveyancing Act 1919 in respect of powers of attorney executed before the commencement of the former Act. That is the position in the instant circumstances. Section 163G enables the court, on application by the principal, to alter the instrument creating a power of attorney with the consent of the attorney and any other interested person if the power is a protected power of attorney given by an incommunicate principal. The principal in this case is Mr Ballardine, who is incapable of giving instructions. That is cured by s 163H that provides that where the principal is incommunicate, proceedings by the principal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gouder v

Details

AGLC: Gouder v [2005] NSWSC 1116
Case: [2005] NSWSC 1116
Decision Date: 27 October 2005

CaseChat Overview and Summary

In Gouder v Gouder, the Supreme Court of New South Wales addressed a complex issue involving the execution of a power of attorney by an unintended principal. The dispute centred around whether an attorney should be appointed as a tutor for the incommunicant principal to alter the instrument under the Conveyancing Act 1919 or to confirm the power to do an act under the Powers of Attorney Act 2003. The court also needed to determine whether it should exercise its inherent power to rectify the instrument, whether an antecedent contract was necessary, and if the power to rectify extended to deeds poll.

The legal issues before the court involved interpreting the relevant statutes and determining the appropriate course of action for rectifying a power of attorney executed by mistake. The court had to weigh the provisions of the Conveyancing Act and the Powers of Attorney Act and consider whether the inherent power of the court could be used to rectify the instrument. Additionally, the court examined the necessity of an antecedent contract and the scope of the power to rectify deeds poll.

The court held that the power of attorney could not be rectified as it was a deed poll, and the inherent power to rectify such instruments was limited. The court emphasised that an antecedent contract was not necessary for rectification. It concluded that the power to rectify deeds poll was constrained and did not extend to the situation presented. Therefore, the court declined to exercise its inherent power to rectify the instrument and found that the attorney should not be appointed as a tutor to alter the power of attorney.

The court ordered that the power of attorney could not be rectified, and no tutor should be appointed for the incommunicant principal to alter the instrument. The attorney's power to act under the Powers of Attorney Act was not confirmed, and the court's inherent power to rectify deeds poll was not exercised. This decision underscored the limitations on rectifying deeds poll and the importance of strict adherence to statutory provisions in such cases.

Orders