Singer v No Defendant

1. [1]

   BELL CJ: I agree with the reasons and orders proposed by Griffiths AJA.

2. [2]

   ADAMSON JA: I agree with Griffiths AJA.

3. [3]

   GRIFFITHS AJA: By summons dated 28 October 2025, the applicant, Mr Simon Singer, seeks leave to appeal from the decision of Hammerschlag CJ in Eq in Re A Power of Attorney [2025] NSWSC 1006 (PJ or primary judgment). The only proposed ground of appeal in the original summons was whether the trial judge erred in finding that the certificate required by s 19(1)(c) of the Powers of Attorney Act 2003 (NSW) (the Act) must be given contemporaneously with the execution of an enduring power of attorney by the principal (in this case, the applicant). As will be developed, the applicant subsequently sought leave to file a further amended summons dated 23 March 2026 in the proceedings below and an amended summons seeking leave to appeal dated 23 March 2026 so as to raise the issue of whether the certificate should be rectified.

4. [4]

   Section 19(1) provides:

5. [5]

   In 2017, the principal executed an instrument purporting to create an enduring power of attorney. However, the certificate which was endorsed on that instrument did not contain the statement required by s 19(1)(c)(iv) that the witness was not an attorney under the power of attorney.

6. [6]

   The following issues arise:

   1. (1)

      Can a s 19(1)(c) certificate be effectively given after the relevant instrument purporting to create an enduring power of attorney has been executed by the principal?

   2. (2)

      If not, should the deficient s 19(1)(c) certificate in this case be construed so as to include the words required by s 19(1)(c)(iv) or be rectified in equity so as to include those mandatory words, as contended for by the applicant in reply in the present proceedings?

7. [7]

   The application for leave to appeal was heard both concurrently with the appeal and on the papers.

8. [8]

   In the absence of an active respondent, Mr Quintin Rares of counsel agreed to assist the Court by assuming the role of contradictor. Mr David Price of counsel appeared for the applicant.

9. [9]

   I consider that leave to appeal should be granted. The issues raised concerning the operation of s 19 of the Act are plainly matters of public importance (see Vakiloroaya v Norri [2026] NSWCA 11 at [24] per Payne and McHugh JJA).

10. [10]

    For the reasons that follow, I propose that the appeal be allowed but on a basis that was not argued below.

Background summarised

1. [11]

   On 18 July 2017, the principal executed an instrument purporting to appoint the applicant as her attorney (Instrument).

2. [12]

   It was common ground that the Instrument was intended to create an enduring power of attorney. It satisfied all the requirements imposed by s 19(1) of the Act, save for s 19(1)(c)(iv) (because it did not contain the required statement).

3. [13]

   By September 2022, the principal had lost her mental capacity to manage her own affairs due to dementia of the Alzheimer and Vascular types.

4. [14]

   In around October 2022, the New South Wales Land Registry Services declined lodgment of the Instrument and issued a requisition seeking a verified alteration of the certificate endorsed on the Instrument to rectify the omitted s 19(1)(c)(iv) statement.

5. [15]

   On 18 October 2022, a person employed by the applicant, acting with the authority of the relevant witness, inserted into the certificate by a handwritten change the words, “I am not an attorney under this power of attorney”.

6. [16]

   The matter was heard by the primary judge on 1 September 2025. Later that day, the witness re-signed the certificate endorsed on the Instrument but with the statement required by s 19(1)(c)(iv) included.

7. [17]

   The reasons for judgment are short. The dispositive part is as follows:

8. [18]

   The primary judge reasoned that each of the requirements in s 19(1) of the Act must be satisfied to create an enduring power of attorney. With respect, his Honour was correct to do so. Section 19 provides that an instrument creates an enduring power of attorney “if” particular requirements are satisfied. This conditional language, coupled with the apparent function of the s 19(1) requirements as procedural safeguards against the fraudulent or inappropriate creation of powers of attorney, manifest a legislative intention that, for an enduring power of attorney to be created, there must be compliance with the requirements.

Timing of s 19(1)(c) certificate

1. [19]

   The applicant contends that the required s 19(1)(c) certificate need not be “given immediately after (or contemporaneously with) the execution of the power of attorney” and that there is no temporal constraint as to when the certificate must be executed by. He contends that a “fresh” compliant certificate can be given or an existing non-compliant certificate amended after the execution of the relevant instrument by the principal. Thus, the Instrument created an enduring power of attorney when the witness’s agent corrected the certificate on 18 October 2022 to include the s 19(1)(c)(iv) statement or, alternatively, when the witness himself personally signed the amended certificate on 1 September 2025.

2. [20]

   In contrast, the contradictor’s position is that the reasons of the primary judge disclose no error. He submits that the Act contemplates the following steps being taken sequentially to create an enduring power of attorney:

   1. (1)

      The prescribed witness explains the effect of the instrument to the principal and checks the principal’s understanding of the instrument (s 19(1)(c)(i)-(ii)).

   2. (2)

      The principal signs the instrument.

   3. (3)

      The witness signs the certificate (which may be a separate document annexed to the instrument or may be endorsed on the instrument itself) (s 19(1)(c)).

   4. (4)

      The power being created, the attorney can accept or reject its conferral of authority. Once accepted by signature, the enduring power of attorney commences operation (s 20(3)).

3. [21]

   The contradictor submits that Parliament “would have intended the usual proposition to hold, that is a witness signs as witness near contemporaneously to when the principal signs”. Reference was made to the judgment of Ward CJ in Eq in Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 at [459]-[496]. Her Honour held there, that for a document to be attested in compliance with the requirements for the execution of a deed in s 38(1) of the Conveyancing Act 1919 (NSW), the witness present at the time of execution of the document must sign it at that time as witness for the purpose of attesting the execution.

4. [22]

   Section 38 provides:

5. [23]

   The question whether a s 19(1)(c) certificate can effectively be given some time after the relevant instrument purporting to create an enduring power of attorney was executed by the principal is ultimately one of statutory construction. As the High Court recently stated in AB v Independent Broad-Based Anti-Corruption Commission (2024) 278 CLR 300; [2024] HCA 10 at [21], this inquiry:

6. [24]

   The text of s 19 of the Act is silent as to when a compliant certificate must come into existence for an enduring power of attorney to be created. That being said, the apparent purpose and policy of the certification requirements is to set out a prescribed checklist of procedural steps that must be complied with by the witness in order to protect the integrity of the powers of attorney regime (which is capable of authorising a person to make significant decisions on behalf of another) and to ensure certainty as to when an enduring power of attorney is effectively created. That purpose and policy would be undermined if it were open for a witness to provide the requisite certificate well after the relevant instrument had been signed by the principal (as the applicant seeks to argue), particularly in light of:

   1. (1)

      the likely difficulties that the witness may experience after the passage of time in recalling whether they had explained to the principal “the effect of the instrument” prior to its execution and whether “the principal appeared to understand the effect of the power of attorney” (s 19(1)(c)(i)-(ii)); and

   2. (2)

      the uncertainty as to the status of an instrument which has not satisfied the certification requirement to date but might do so at some unknown point in time in the future.

7. [25]

   For these reasons, the primary judge was correct to find that the certificate required by s 19(1)(c) of the Act must be given contemporaneously with the execution of an enduring power of attorney by the principal.

Inserting the words required by s 19(1)(c)(iv) by construction or rectification?

1. [26]

   There are, however, two additional arguments advanced by the applicant for the first time in his submissions in response in this Court. He contends that the deficient s 19(1)(c) certificate should be construed to include the words required by s 19(1)(c)(iv) or, alternatively, be rectified to include those words such that the Instrument is effective in creating an enduring power of attorney. The contradictor tacitly acknowledges that such arguments may be available, but notes that they “were not the subject of the decision below and do not appear to have been raised below”.

2. [27]

   While it is normally the case that, on an appeal, a party is held to the way the case was conducted at trial, there are exceptions. As Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ recently observed in Bird v DP (2024) 419 ALR 552; [2024] HCA 41 at [39] (citations omitted) (emphasis added):

3. [28]

   Addressing the construction argument first, obvious linguistic or conceptual mistakes in wording which are apparent on the face of an instrument can be corrected through construction where the parties’ objective intention is clear: see eg Zhong v Guan (2024) 116 NSWLR 258; [2024] NSWCA 300 at [23]-[38] (Kirk JA, Payne JA and Price AJA agreeing). However, the situation here is different. It involves the mistaken omission of words which, by virtue of statute, needed to be included in the relevant instrument to create an enduring power of attorney. It would be inappropriate for the Court to read into the Instrument the words of the omitted s 19(1)(c)(iv) statement to find that the formal requirements for the creation of an enduring power of attorney have been met.

4. [29]

   Rectification in equity is the available and appropriate course in the particular circumstances of this case.

5. [30]

   Re An Incapacitated Principal [2025] NSWSC 89 is a recent example where, in the exercise of the Court’s protective and equitable jurisdiction, an enduring power of attorney was rectified (after the principal had become mentally incapacitated) to include a statement required by the Act which, by reason of a clerical error, had been omitted: see at [18]-[19], [39].

6. [31]

   Lindsay J reasoned that the use of the heading, “Enduring Power of Attorney” in the instrument, the fact that the instrument was endorsed with a certificate required by the Act, and the fact that the attorneys had accepted their appointment in conformity with the Act gave rise to an inference that the principal intended the instrument to operate as an enduring power of attorney: at [23]. These indicators led his Honour to be satisfied that (at [34]):

7. [32]

   The instrument was “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’”: at [39].

8. [33]

   Re Gouder [2005] NSWSC 1116 is another example where the Court rectified a power of attorney. In that case, Mr and Mrs Ballardine (who were husband and wife) had powers of attorney, both in favour of Mr Gouder, prepared for them to execute. However, Mr Ballardine mistakenly signed Mrs Ballardine’s power of attorney instead of his own and vice versa: at [2].

9. [34]

   Gzell J made an order rectifying the instrument signed by Mr Ballardine to replace Mrs Ballardine’s name with his name. His Honour held that:

10. [35]

    Equity has jurisdiction to correct a “discrepancy between [a] written instrument and a separately proven contrary common intention, which was intended to have been incorporated into the instrument”: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (2019) 99 NSWLR 317; [2019] NSWCA 11 at [15] (Leeming JA, Payne and White JJA agreeing). Although “most frequently applied to address mistakes in contracts, the jurisdiction can encompass some instruments with a unilateral flavour, including deeds, trusts, and for present purposes, powers of attorney”: G E Dal Pont, Powers of Attorney (4th ed, 2025, LexisNexis) at [5.58].

11. [36]

    The general principles are well established and were summarised by Stern JA (Ward P and Price AJA agreeing) in SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 at [138]-[143]. For rectification in equity to be granted for common mistake, the following requirements must be established.

    1. (1)

       At the time the written instrument was executed, the parties shared a common intention. Clear and convincing proof of this common intention is required.

    2. (2)

       The written instrument was to conform to that common intention.

    3. (3)

       But it did not do so because of a common mistake.

12. [37]

    As McLelland AJA explained in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 345:

13. [38]

    It is common ground between the applicant and the contradictor that the omission of the s 19(1)(c)(iv) statement was an obvious mistake and that the principal, prospective attorney and witness all intended the Instrument to have the effect of creating an enduring power of attorney. The ineffectiveness of the Instrument in creating an enduring power of attorney is far from being an unintended legal consequence of a remote or collateral kind as referred to in Carlenka, where rectification would not be granted.

14. [39]

    I do not see any need to remit the matter to the primary judge. The evidence before this Court clearly establishes a common intention between the principal, prospective attorney and witness to create an enduring power of attorney through the execution of the Instrument, as well as a common mistake in the form of a failure to include the prescribed statement under s 19(1)(c)(iv) of the Act. The prospective attorney and the applicant, who is the principal’s solicitor, deposed that:

    1. (1)

       on 20 June 2017, the principal instructed him to prepare an enduring power of attorney which nominated him as her sole attorney;

    2. (2)

       either he or another lawyer within his firm drafted the Instrument using a precedent from his firm’s computer system;

    3. (3)

       shortly after receiving the draft Instrument on 28 June 2017, the principal instructed the applicant that she wished to proceed with signing the documents;

    4. (4)

       on 18 July 2017, the nominated witness and the principal met at the applicant’s office for the purpose of executing the enduring power of attorney among other estate planning documents; and

    5. (5)

       prior to the New South Wales Land Registry Services issuing a requisition seeking rectification of the Instrument, the applicant was unaware with any non-compliance by the Instrument with the requirements of the Act.

15. [40]

    The nominated witness’s evidence was that he met with the principal on 18 July 2017 at the applicant’s office to explain the enduring power of attorney to the principal and to give a certificate as an independent witness. He stated that because those documents had been prepared before he arrived, he assumed that the certificate complied with the requirements of the Act. He also noted that although he did not have any material recollection of the discussion with the principal that day, it was his usual practice as an independent witness to explain that he was independent from the solicitor who prepared the enduring power of attorney as well as from the prospective attorney, and that he was not being appointed as attorney under the instrument.

16. [41]

    In my view, it can comfortably be inferred that there was “at the time the document was executed, a common intention” by all parties to effectively create an enduring power of attorney “which, through a common mistake, was not reflected in the document” due to the mistaken omission of the prescribed statement: Seymour Whyte at [12] (Leeming JA, Payne and White JJA agreeing).

17. [42]

    On this basis, and in the particular circumstances of this case, the Instrument should be rectified in equity to include the prescribed statement required by s 19(1)(c)(iv) of the Act. For completeness, it should also be noted that, following directions made by the Court on 19 March 2026, the applicant sought leave to file a further amended summons in the proceeding below as well as an amended summons seeking leave to appeal to raise the issues of construction and rectification. I propose that leave be granted to file both those documents.

18. [43]

    It is also appropriate to make a declaration that the Instrument as rectified is a valid enduring power of attorney. No issue was raised concerning potential prejudice to any bona fide third party occasioned by this relief, nor was any issue raised about the standing of the applicant to seek the relief.

19. [44]

    The applicant was also directed by the orders dated 19 March 2026 to file an affidavit and brief submissions in support of the application to suppress the name of the applicant and the principal. While I am satisfied that it is in the interests of the administration of justice to anonymise the principal’s name, in circumstances where that person no longer has capacity and the proceedings below were brought in the Protective List, I see no basis for suppressing the name of the applicant.

20. [45]

    The applicant sought an order for his costs to be paid on the indemnity basis from the principal’s estate, claiming that there was an analogy with a trustee’s indemnity where a trustee seeks judicial advice. I consider that the analogy is overstated. The applicant overlooks cases in which a trustee has been deprived of his or her entitlement to indemnity where the trustee’s conduct has caused the litigation: see eg Re Schoenmakers (No 2) [2013] VSC 658. The Court ordered there that the trustee was to pay the costs of the successful defendant personally and was to bear its own costs.

21. [46]

    In the present proceeding, where there is no defendant, I consider it appropriate that the applicant bear his own costs. This litigation has been brought solely because of the applicant’s personal failure to ensure that the certificate complied with s 19(1)(c)(iv) of the Act.

Conclusion

1. [47]

   I propose the following orders:

   1. (1)

      Grant leave to file the further amended summons dated 23 March 2026 in the proceedings below and the amended summons seeking leave to appeal dated 23 March 2026.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Set aside the orders of the primary judge and in lieu thereof:

   5. (5)

      Order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the publication or other disclosure of information tending to reveal the identity of the principal is prohibited on the basis that such an order is necessary to prevent prejudice to the proper administration of justice.

   6. (6)

      There be no order as to costs.

2. [48]

   Although I propose that the appeal be allowed, it is to be emphasised that this is because of a point which was not argued below.

3. [49]

   The importance of practitioners being vigilant in ensuring that the formal requirements of the Act be met cannot be overemphasised. Rectification is appropriate in the particular circumstances of this case. This remedy will often not be available to redress a failure to adhere to the strict requirements of the Act.

4. [50]

   Finally, the Court expresses its gratitude to Mr Rares for appearing as contradictor.