Gouder v

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.