New South Wales Supreme Court 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 Conveyancing Act 1919 LEGISLATION CITED : Powers of Attorney Act 2003 Uniform Civil Procedure Rules 2005 MacKenzie v Coulson (1869) LR 8 Eq 368 CASES CITED : 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 may be commenced and carried on as prescribed by the rules of the court. The Uniform Civil Procedure Rules 2005, r 7.18 enables the court to appoint a tutor. In my view, however, Mr Gouder should not be appointed tutor. A person to be appointed must establish that he or she does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. Mr Gouder as the attorney could exercise power adverse to the interests of Mr Ballardine. 5 Another font of power is contained in Pt 5 of the Powers of Attorney Act 2003. The part extends to powers executed before the commencement of the Act. Section 31 provides that the Supreme Court may, on the application of a principal under a power of attorney, confirm any power to do an act under the power of attorney if it appears to the court that the principal is incommunicant and it is for the benefit of the principal that the power be confirmed in whole or in part. Again, it seems to me that an application would need to be made by a tutor on behalf of Mr Ballardine. 6 The third source of power to which reference was made was the inherent jurisdiction of the court to rectify documents. An order for rectification will be made if the instrument, by error, does not record the agreement of the parties. In MacKenzie v Coulson (1869) LR 8 Eq 368 at 375, Sir William James VC said: "Courts of Equity do no rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts." 7 It used to be said that in order to obtain rectification, a party had to prove a valid and enforceable antecedent agreement. In Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, Butterworths Lexis Nexis, Australia, 2002 at 26-030, the learned authors analyse the authorities and state that it is no longer tenable to suggest that the plaintiff in a rectification case must prove an antecedent contract. The underlying principle is simply to see that the document executed by the parties accords with their true intentions. Here the power of attorney was executed as a deed poll but if an antecedent contract is unnecessary, there is no reason, in my view, that the underlying principle should not be invoked. The instrument executed by Mr Ballardine did not, by error, record his true intentions for it stated that it was made by Mrs Ballardine. I see no reason why this court should not rectify the instrument to replace the name of Simone Ballardine with the name Jacques Ballardine. 8 I make an order in terms of paragraph 1 of the summons. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.