Re An Incapacitated Principal [2025] NSWSC 89

Supreme Court New South Wales

Medium Neutral Citation: Re An Incapacitated Principal [2025] NSWSC 89 Hearing dates: 17 February 2025 Date of orders: 17 February 2025 Decision date: 24 February 2025 Jurisdiction: Equity - Protective List Before: Lindsay J Decision: 1 ORDER that the document entitled "Power of Attorney of [the Incapacitated Principal]" dated 11 December 2017 be rectified by inserting the words "I give this power of attorney with the intention that it will continue to be effective if I lack the capacity through loss of mental capacity after its execution" immediately after the heading "2 Powers". 2 ORDER that there be no order as to the costs of the [NSW Trustee] to the intent that it bear its own costs of the summons, such costs to be paid out of the Reserve Fund pursuant to section 109 of the NSW Trustee and Guardian Act 2009 NSW. 3 ORDER, subject to further order, that the NSW Trustee pay the reasonable legal costs (if any) of [the Principal's two nominated Attorneys] incurred in connection with these proceedings, such costs to be paid out of the Reserve Fund. 4 RESERVE to the [NSW Trustee] and any interested person liberty to apply for further or consequential orders in the working out of these orders. Catchwords: PROTECTIVE JURISDICTION – Interplay with Equity jurisdiction – Rectification of enduring power of attorney after principal becomes mentally incapacitated – standing of applicant for rectification EQUITY – Rectification - Enduring power of attorney – Application for rectification after principal becomes mentally incapacitated – standing of applicant for rectification Legislation Cited: Australian Courts Act 1828 (Imp), 9 Geo IV C 83 New South Wales Act 1823 (Imp), 4 Geo IV C 96 NSW Trustee and Guardian Act 2009 NSW Powers of Attorney Act 2003 NSW Supreme Court Act 1970 NSW Third Charter of Justice, Letters Patent dated 13 October 1823 Cases Cited: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Ex parte Whitbread in the matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878 Fountain v Alexander (1982) 150 CLR 615 In Re WM (1903) 3 SR (NSW) 552 JH & KM Knox Pty Ltd v Morton Investments Pty Ltd [1990] ANZ Conv R 214; BC 890 1295 PB v BB [2013] NSWSC 1223 Protective Commissioner v D (2004) 60 NSWLR 513 Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 Re Eve (1986) 31 DLR (4th) 1; [1986] 2 SCR 388 Re Gouder [2005] NSWSC 1116 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 W v H [2014] NSWSC 1696 Zhong v Guan [2024] NSWCA 300 Texts Cited: HS Theobald, The Law Relating to Lunacy (London, 1924) JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), Chapter 7 Nicholas Seddon, Seddon on Deeds (Federation Press, Sydney, 2nd ed, 2022) Category: Principal judgment Parties: Plaintiff: NSW Trustee Defendant: Incapacitated Principal Interested persons: Adult children (Attorneys) of the Defendant Representation: Counsel: NSW Trustee: Mr Daniel Yazdani Defendant: No appearance Interested persons: Self represented