Wong v Wong

[2008] NSWSC 330

CITATION:	Wong v Wong [2008] NSWSC 330
HEARING DATE(S):	31/03/08, 01/04/08
JUDGMENT DATE :	16 April 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Counsel for the plaintiff to bring in short minutes of order in accordance with reasons.
CATCHWORDS:	TRUSTS – resulting trust – gift of half-interest in land to daughter – presumption of advancement – presumption supported by evidence. - TRUSTS – resulting trust – property purchased in joint names of son and mother with mother’s money – presumption of advancement not rebutted. - REAL PROPERTY – conveyancing – agreement to transfer property – power of attorney to deal with specified property and ‘irrevocable authority’ allowing attorney to direct payment of proceeds of sale of property – principal’s consent to power of attorney being exercised for benefit of attorney and a third party withdrawn – consent revocable as no estoppel or consideration.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW) Powers of Attorney Act 2003 (NSW)
CASES CITED:	Currie v Hamilton [1984] 1 NSWLR 687 Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421 Nelson v Nelson (1995) 184 CLR 538 Sweeney v Howard [2007] NSWSC 852; (2007) 13 BPR 24,381 Tobin v Broadbent (1947) 75 CLR 378
TEXTS CITED:	Halsbury’s Laws of England, 4th ed, vol 12 “Deeds and Other Instruments”
PARTIES:	Debby Ann Wong v Stanley Wong & 1 Or
FILE NUMBER(S):	SC 3264/07
COUNSEL:	Plaintiff: L V Gyles 1st Defendant: G D Blake SC 2nd Defendant: G Foster
SOLICITORS:	Plaintiff: Makinson & d'Apice Lawyers 1st Defendant: Mark Warton 2nd Defendant: Chong & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 16 April 2008

3264/07 Debby Ann Wong v Stanley Wong & 1 Or

JUDGMENT

1 HIS HONOUR: These proceedings concern the title to a unit in Fourth Avenue, Campsie (“the property”). The registered proprietors are the plaintiff, Debby Wong, and the first defendant, Stanley Wong. They hold the property as tenants in common in equal shares. Their mother, Mrs Man Ying Wong, is the second defendant. She claims to be beneficially entitled to the whole of the property. Debby Wong claims to be entitled to exercise an irrevocable power of attorney given to her by Stanley Wong to sell the property and to hold the proceeds of sale representing Stanley Wong’s share of the property on trust for her nephew, Kyle Harrison Bray.

2 When the proceedings were commenced, Debby Wong sought orders for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). From the proceeds of sale, the plaintiff sought to be reimbursed for moneys she expended in connection with the property, and for the balance of the net proceeds of sale to be divided equally between her and Stanley Wong.

3 Mrs Wong applied to be joined as a defendant and filed a cross-summons seeking a declaration that the property was held in trust by Debby Wong and Stanley Wong for her benefit and an order for the transfer of their legal interest in the property to her. Stanley Wong acknowledges that he holds his half-interest on trust for his mother. Debby Wong contends that this admission was made in order to defeat her claim to Stanley Wong’s interest in the property.

4 The property was acquired in 1989. Mrs Wong provided all of the purchase moneys. The property was registered in the names of Stanley Wong and Mrs Wong as joint tenants. On 1 February 1995, Mrs Wong executed a memorandum of transfer of her interest in the property to Debby Wong. The expressed consideration for the transfer was $1. Mrs Wong claims that Debby Wong holds her interest on a resulting trust for her. Debby Wong says that it was her mother’s intention to make a gift of a half-interest in the property to her and that the presumption of advancement has not been rebutted. She claims a 50 percent beneficial interest in the property pursuant to the transfer dated 1 February 1995.

5 In a further amended summons filed on 11 March 2008, Debby Wong claimed to be entitled to Stanley Wong’s half share of the property pursuant to an irrevocable power of attorney and a document called an “Irrevocable Authority” dated 19 December 2002. The power of attorney signed by Stanley Wong on that day conferred on his sister the authority under s 163B of the Conveyancing Act to do on his behalf anything he could lawfully authorise her to do in dealing with the property. The deed provided that the power created by the deed had been given for valuable consideration and was irrevocable.

6 The “Irrevocable Authority” was addressed to Debby Wong and stated:

“ I authorize payment to you or as you may direct, my [sic] share in the proceeds of the sale of the property ....
This authority is irrevocable. ”

7 Debby Wong contends that these documents were signed because Stanley Wong had agreed to transfer his half-interest in the property. Stanley Wong contends that he did not properly appreciate what it was he was asked to sign and that he believed that the purpose of the documents was to enable his sister to deal with the Owners’ Corporation of the building in which the property is situated.

8 The property was tenanted up until January 2003. Up to the end of 2002, rent from the property was paid into a joint account in the names of Stanley Wong and Mrs Wong. All of the rent and expenses in relation to the property were accounted for by Mrs Wong in her income tax returns. The property had a number of significant defects. It was vacant between January 2003 and 2005 because no tenant could be found. From 2005, Stanley Wong arranged for the property to be occupied in order to reduce the risk of damage by vandalism or neglect associated with an unoccupied property. No rent has been collected since 2003. Debby Wong has spent $25,773.16 in payment of rates, strata levies, water charges and repairs for the property. It was common ground that if Debby Wong was not entitled to a beneficial interest in the property, she should be indemnified by whoever was the beneficial owner or owners in respect of the moneys she has paid. It was common ground that if she is beneficially entitled to a half-interest in the property, but not the whole interest, the beneficial owner of the other half-interest should contribute to half of the expenses paid by her.

9 The issues to be decided are:

a) whether the transfer by Mrs Wong of her legal interest in the property to Debby Wong by the registration of the memorandum of transfer dated 1 February 1995 was by way of gift, or whether Mrs Wong retained the beneficial ownership of an half-interest in the property (the legal title to which was transferred to Debby Wong) under a resulting trust;

b) whether Stanley Wong held his half-interest in the property on trust for his mother;

c) whether by virtue of the power of attorney and the document called an “Irrevocable Authority” both dated 19 December 2002, Debby Wong was entitled to control the disposition of Stanley Wong’s interest in the property and could either transfer that interest to herself to be held on trust for her nephew, or could sell the property and hold the share of the proceeds of sale of the property referable to Stanley Wong’s interest on trust for her nephew.

10 Counsel for Debby Wong accepted during the course of final submissions, in my view correctly, that if Mrs Wong was the beneficial owner of Stanley Wong’s half-interest in the property, Mrs Wong’s title as a beneficial owner was first in time and had priority to any interest claimed by Debby Wong (either for herself or as trustee for Kyle Bray). As Debby Wong has not acquired the legal estate to the remaining half-interest in the property (of which Stanley Wong remains the legal owner) Mrs Wong’s beneficial interest would have priority irrespective of whether or not Debby Wong had notice of her mother’s beneficial interest.

11 In relation to the third issue concerning the effect of Stanley Wong’s execution of the power of attorney and irrevocable authority, the issues are:

a) whether those instruments are void or voidable on the principles of non est factum , unconscionable dealing, or unilateral mistake;

b) whether the power of attorney (and associated authority) should be terminated pursuant to s 28 of the Powers of Attorney Act 2003 (NSW) (which is applicable to the power of attorney pursuant to s 6(5) of that Act); and

c) whether the power of attorney or the irrevocable authority, or both, or conversations said to have taken place between Debby Wong and Stanley Wong, would authorise Debby Wong to transfer Stanley Wong’s interest in the property to herself to be held on trust for Kyle Bray, or to sell the property and apply the proceeds of sale, to the extent they reflected Stanley Wong’s interest in the property, for the benefit of Kyle Bray, notwithstanding Stanley Wong’s purported revocation of the power of attorney and his not consenting to such a course.

Transfer of an Half Beneficial Interest in the Property from Mrs Wong to Debby Wong

12 Debby Wong gave evidence that in late 1994 or early 1995 her mother told her (in Hainanese) that “I want to give you my interest in the unit at Campsie that I own with Stanley. You have nothing in your name and I have given Stanley and Michelle properties.” Debby Wong said that she thanked her mother for that proposal.

13 At that time, Mrs Wong had arranged for her son Stanley to have a half-interest in the then family house at Burwood. Mr Wong senior had died in 1974 and Mrs Wong controlled a number of properties. Even though Mrs Wong was illiterate both in any Chinese language and in English, had a very limited grasp of spoken English, and her son Stanley was assisting in the management of financial matters, she was capable of managing her own affairs. In 1980, the Burwood property was purchased in the names of Mrs Wong and Stanley Wong. In 1986, a flat in Unara Street, Campsie was purchased in the names of Stanley Wong and his sister Michelle Wong. Mrs Wong paid for the whole of the purchase price for the Unara Street property. As I have said, the Fourth Street property was purchased in the names of Mrs Wong and Stanley Wong in 1989, notwithstanding that Mrs Wong paid for the whole of the purchase price of that property.

14 There was nothing irrational in Mrs Wong transferring by way of gift her interest in the property to Debby Wong in 1995. A solicitor, Mr Dennis Yeung, acted on that transaction. He acted for Mrs Wong on the purchase of the property and also on the transfer of her half share of the property to Debby Wong. He gave evidence, which I accept, that he was instructed by Mrs Wong to transfer her half share to her daughter. He witnessed the signatures to the transfer.

15 In affidavits signed by Mrs Wong, she deposed that the instrument of transfer to her daughter had not been explained to her, and that she did not understand that the document might have the effect of transferring her interest in the property to her daughter, as opposed merely to noting her daughter’s name on the title without passing any interest. In her affidavit sworn on 28 December 2007 Mrs Wong deposed that she signed the document at her home when she was alone with her daughter. She deposed that she agreed to add Debby Wong’s name to the title, but told Debby that adding her name to the title would not mean that Debby would own the house. She deposed saying words to the effect of “You won’t get this property” and “This will only add your name. You will not own the house. If I add your name to this property, you can’t have it.” According to Mrs Wong’s affidavit, Debby Wong acknowledged this by saying “I know that”.

16 I do not accept that evidence. Mrs Wong was cross-examined through an interpreter. She said that she did not have any recollection of any conversation with her daughter before she signed the transfer. She also said she did not remember any dealings with Mr Yeung.

17 Contrary to the evidence given in Mrs Wong’s affidavits, the transfer was not executed by Mrs Wong at her house when she was alone with her daughter. I accept Mr Yeung’s evidence that it was signed in his presence and that such documents signed in his presence were signed at his office. I accept Debby Wong’s evidence that the document was signed at Mr Yeung’s office.

18 As a witness Mrs Wong presented very differently from what one would expect from reading her affidavits. Her evidence that she had no memory of conversations with her daughter before the transfer was signed was quite contrary to her affidavits sworn as recently as December 2007, in which she set out in some detail words attributed to herself and to her daughter.

19 Mrs Wong also swore an affidavit on 28 March 2008 (only four days before she gave oral evidence) in which she deposed that when the property was purchased she intended to buy the property in her own name. She deposed that until recently she was unaware that Stanley Wong’s name was registered on the title. That evidence was contradicted by Stanley Wong. He gave evidence that he had done nothing to put his name on the title to the property and he believed his mother had instructed Dennis Yeung to do that. His mother told him that his name had been placed on the title.

20 When Mrs Wong was called to give oral evidence, her counsel explained that Mrs Wong wished to correct evidence which she had given in her affidavit in this respect. Mrs Wong’s evidence was that she could not recall what happened in 1989. There was no explanation as to how she came to sign her affidavit of 8 February 2008 which set out in some detail her recollection of her intentions at the time of the purchase of the property. Her oral evidence bore no relation to her affidavits. Mrs Wong suffered a stroke in 1999. She received no education and is illiterate in both Chinese and English. I am not satisfied that she appreciated the substance of the things she deposed to in her affidavits. I give them no weight.

21 I conclude that Debby Wong is both the legal and beneficial owner of the property as tenant in common as to a 50 percent share. The presumption is that the beneficial ownership is in accordance with the legal title (Currie v Hamilton [1984] 1 NSWLR 687 at 690; Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421 at 22,422 [128]). Equity does not presume that Mrs Wong intended to retain the beneficial ownership of the property she transferred to Debby Wong, notwithstanding that the transfer was not for valuable consideration. Where the relationship is that of parent and child, there is a so-called “presumption” of advancement (Nelson v Nelson (1995) 184 CLR 538 at 547-548). The evidence in this case confirms that Mrs Wong intended to make a gift of her interest in the property to her daughter. That follows from her instructions to Mr Yeung and her conversations with her daughter referred to in para [12] above. I have rejected Mrs Wong’s affidavit evidence to the contrary.

22 I do not consider that the evidence of Mrs Wong’s intention to make a gift is outweighed by the fact that after 1995 Debby Wong did not collect rent, and her mother continued to receive the rent. There was a loose family arrangement whereby Stanley and Debby Wong were content that their mother should continue to receive the net rents, provided it did not affect her pension. This did not affect title to property.

23 It follows that Mrs Wong’s claim that she is the beneficial owner of the interest of which Debby Wong is the legal owner must be rejected.

Beneficial Ownership of Stanley Wong’s Half-Interest in the Property

24 As noted in para [3] above, Stanley Wong admitted that he held his half-interest in the property on trust for his mother. He said that he regarded the property as his mother’s property and believed that it was transferred into his name as joint tenant with her to facilitate dealing with the asset after his mother’s death.

25 For the reasons explained in para [10] above, this issue does not concern only Mrs Wong and Stanley Wong. If the position asserted by Mrs Wong and admitted by Stanley Wong is correct, Mrs Wong’s beneficial interest would have priority over the interest asserted by Debby Wong arising from her dealings with her brother in 2002.

26 Mr Blake SC, who appeared for Stanley Wong, accepted that the relevant question was that of Mrs Wong’s intention at the time of the purchase of the land in their joint names.

27 For the reasons I have given, the affidavit evidence of Mrs Wong on this question cannot be relied upon. There is some force in the submission of counsel for Mrs Wong that the presumption of advancement is weak where the party advanced is an educated adult son and the party making the advancement is an illiterate and uneducated mother. That is particularly so where the family is of Chinese origin and there are cultural differences which may make it inappropriate to apply such a presumption. The presumption is only an inference the Court draws as to what was the actual intention of the party providing the funds for the acquisition of property in joint names.

28 However, the presumption of advancement still applies, even though I accept that the presumption is not particularly strong in the circumstances of the present case. Stanley Wong said that he believed the reason for the property being transferred into the joint names of he and his mother was because there had been delays in administering his late father’s estate and that all of the assets were tied up for some years. Assuming that this motivated Mrs Wong, it does not suggest that Mrs Wong intended to retain the beneficial interest in the whole of the property. If this were the position, although the legal title to the property would pass to her son on her death by survivorship, he would nonetheless hold the property on trust for the executors of her estate. The property would be an asset of the estate and be subject to whatever claims there might be on her estate. Therefore, this is not a circumstance which would support an inference that Mrs Wong intended to retain beneficial ownership of the entire property.

29 The rent from the property was paid into a joint account in the names of Mrs Wong and Stanley Wong. However, until 2002, all of the rent was declared as income by Mrs Wong and she claimed a deduction for all of the expenses. Stanley Wong gave evidence that this was done after receiving advice from accountants, but he did not give evidence as to what instructions the accountants were given or what their advice was. Prima facie, the fact that rent was received into a joint account and, I assume, expenses were paid from the joint account, would be consistent with Stanley Wong being a joint beneficial owner of the property. Whilst it appears that all of the income was declared by Mrs Wong, it is not clear whether this was because she received all of the net income. I presume that to be the case. Nonetheless, I do not infer from the fact that Mrs Wong received the whole of the net rents of the property that she retained beneficial ownership of the property, notwithstanding the transfer of the property to the names of her children. As I have said in para [22], the fact that they were willing to allow her to collect the rents from the property (for so long as it did not affect her pension) is explicable as a loose family arrangement which did not affect title to property. In other words, Stanley Wong (and after 1995, Debby Wong) were happy for their mother to continue to collect the rents for the property, and so gifted the rents of the property to her. But that did not mean that Mrs Wong had not made gifts of the property to her children. The evidence of the arrangement of the family’s affairs was murky. In my view, the presumption that the beneficial ownership of the property was in accordance with the legal title has not been displaced.

30 It follows that Debby Wong’s claim to the half-interest of the property of which Stanley Wong is the registered proprietor is not defeated by a prior beneficial interest of Mrs Wong.

Validity of the Power of Attorney

31 The first ground upon which Mr Blake SC submitted that the power of attorney and irrevocable authority were not binding was on the ground of non est factum: that is, that Stanley Wong did not understand the nature of the instrument he was signing. Stanley Wong gave evidence that his sister asked for a power of attorney from him in order to deal with the body corporate of the block of units at Fourth Avenue. He said that he agreed to do that. He signed the instrument at the Gordon Golf Club when Debby Wong’s husband produced two documents for his signature. He deposed that he did not notice the word “Irrevocable” beside the printed heading “General Power of Attorney” and did not read clause 3 or clause 4. He said he believed that he would be able to revoke the power of attorney in the future and that he intended that his sister would receive the net rent from the property only until she obtained fresh employment and intended then to revoke the power of attorney. He said he did not appreciate that either document was expressed to be irrevocable and he did not know the meaning of the word.

32 Whilst the documents were signed by Stanley Wong at the golf club, for the reasons below I do not accept his evidence that he did not understand the word “irrevocable”, nor that he did not understand what he was signing. Nor do I accept his evidence that he believed he was signing the power of attorney only to enable his sister to deal with the Owners’ Corporation for the property.

33 Debby Wong said that two matters prompted her to obtain the power of attorney and irrevocable authority. They were concerns she had about the application of the proceeds of sale of the family house at Burwood, and that Stanley Wong had become the sole registered proprietor of the property in Unara Street, Campsie.

34 The Burwood house had been registered in the joint names of Mrs Wong and Stanley Wong. After Mrs Wong suffered a stroke in 1999, she was admitted to a nursing home. In December 2001, her pension was stopped because the family home in Burwood ceased to be excluded from a calculation of her assets for the purposes of a means test for the pension. This ultimately led to the Burwood property being sold. It was sold in October 2002. All of the proceeds of sale were applied in the purchase by Stanley Wong and his wife of a property at Lindfield. Stanley Wong said that this was with the agreement of his mother.

35 The Unara Street property was purchased in 1986 in the names of Stanley Wong and his sister Michelle Wong. Mrs Wong provided the whole of the purchase price for that property. It was put into their names as joint tenants. Michelle Wong died in 2000. Title to the property passed to Stanley Wong by survivorship. Debby Wong believed that Stanley Wong ought to have held a half-share of the Unara Street property for the benefit of Michelle’s son, Kyle Bray. She deposed that in late 2002, she had a conversation with Stanley Wong to the following effect:

“ I said: ‘As you are using or have used the sale proceeds from Burwood to buy a property for you and Kathy [his partner] at Lindfield, you should transfer your interest in the Campsie unit in Fourth Street to me which I will share with my nephew [referring to my sister Michelle’s son].’

He said: ‘Alright then.’”

36 Stanley Wong admitted that there was a conversation in similar terms. He said that he believed it took place in the context of dealings with the property which would occur when their mother was deceased but gave no other evidence about any such qualification. In cross-examination, he said that whilst there was a conversation to that effect, it had to have occurred in the context of what would happen after Mrs Wong died because she, according to Stanley Wong, beneficially owned the property. I do not accept that in 2002 Stanley Wong considered his mother to be the beneficial owner of the property. He sent a number of emails to Debby Wong from October 2002 in relation to declaring the income from the property. He asserted that as both he and Debby Wong owned the property, they should each declare half of the rent.

37 It was after this correspondence that a conversation occurred to the effect deposed to by Debby Wong set out above. I do not accept that that conversation occurred in the context of what would happen after Mrs Wong’s death. Rather, I accept Debby Wong’s evidence that, at that time, her brother agreed to transfer his interest in the property to her.

38 Debby Wong instructed a solicitor, Mr Alan Yeung, to prepare the documents to transfer Stanley Wong’s half-interest in the Campsie property to her. Her instructions to Mr Yeung were that there was an alleged misappropriation of funds which was to be resolved by Stanley Wong agreeing to transfer his share in the property to her. Alan Yeung advised Debby Wong that stamp duty would be payable on any transfer, and that an irrevocable power of attorney and an irrevocable authority was an easier option which provided the same protection and was as good as a transfer. On 11 December 2002, he forwarded those documents to Debby Wong and they were signed by Stanley Wong at the golf club.

39 It is unlikely that Stanley Wong could have signed the power of attorney without noticing that it was expressed to be irrevocable. It would have been impossible for him to have signed the irrevocable authority without noticing that that was what it was called. His evidence that he did not understand the meaning of the word was unpersuasive. He is highly educated. Nor could Stanley Wong have signed the latter document without appreciating that it authorised payment to Debby Wong or as she might direct of his share in the proceeds of the sale of the property. The document was so short that Stanley Wong could not have signed it without noticing what he was signing. It had nothing to do with authorising his sister to deal with the Owners’ Corporation.

40 In January 2003, Stanley Wong authorised the agent to pay all future payments of rent from the property to Debby Wong. In fact, only one such payment was made before the tenant vacated the property. Nonetheless, this is corroborative of Debby Wong’s evidence as to the circumstances in which the power of attorney and irrevocable authority were executed. Moreover, from January 2003, Debby Wong started to meet all of the expenses associated with the property. Stanley Wong’s evidence was that his agreeing to allow her to collect all the rent from the property was only a temporary arrangement. He was aware when rent from the property ceased to be collected. He had no explanation as to why he allowed Debby Wong to meet all of the expenses associated with the property without offering to contribute half.

41 This is objective support for Debby Wong’s evidence as to how the documents came to be signed. I do not accept Stanley Wong’s evidence on this topic.

42 It follows that each of the defences raised as to the validity of the power of attorney and irrevocable authority, namely non est factum, unilateral mistake and the unconscionable advantage taken of Stanley Wong’s alleged position of special disadvantage fails on the facts. There are difficulties in law with these defences, but it is unnecessary to consider them.

43 It does not follow that the power of attorney and irrevocable authority authorise Debby Wong to transfer Stanley Wong’s half-interest in the property to herself. Nor does it necessarily follow that she could transfer his interest in the property to herself as trustee for Kyle Bray.

44 I accept that unless the power of attorney is terminated by an order of the Court pursuant to s 28 of the Powers of Attorney Act, it cannot be revoked or otherwise terminated without the consent of Debby Wong. The power of attorney is contained in a deed and is expressed to be given for valuable consideration. It is expressed to be irrevocable. Pursuant to s 160(1) of the Conveyancing Act it remains effective notwithstanding anything done by the principal without the concurrence of the attorney, which includes Stanley Wong’s purported revocation of the power. It remains effective unless an order is made for its termination pursuant to s 28 of the Powers of Attorney Act.

45 It does not follow that the power of attorney authorises Debby Wong to use the power for her own benefit. The power of attorney conferred on Debby Wong the authority under s 163B of the Conveyancing Act to do on Stanley Wong’s behalf anything which he might lawfully authorise an attorney to do. The key words are “to do on my behalf”.

46 Section 163B of the Conveyancing Act relevantly provided:

“ 163B Power conferred by prescribed form of instrument
(1) Subject to this section, an instrument (whether or not under seal) in or to the effect of the form in Schedule 7 confers on the attorney thereby appointed authority to do on behalf of the person executing the instrument anything the person executing the instrument may lawfully authorise an attorney to do.
(2) The authority conferred by an instrument referred to in subsection (1) does not include:
(a) authority to exercise or perform any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrument, or
(b) unless it is expressly conferred by the instrument—authority to execute an assurance or other document, or do any other act, as a result of which a benefit would be conferred on the attorney appointed by the instrument. ”

47 No authority is expressly conferred in the deed for the attorney to do any act which would confer a benefit on herself. The limitation in s 163B(2)(b) is reflective of the common law (Sweeney v Howard [2007] NSWSC 852; (2007) 13 BPR 24,381 at 24,399 [59]). As Dixon J (as his Honour then was) said in Tobin v Broadbent (1947) 75 CLR 378 at 401:

“ Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. ‘ The primary object of a power of attorney is to enable the attorney to act in the management of his principal's affairs. An attorney cannot, in the absence of a clear power so to do, make presents to himself or to others of his principal's property.’ Per Russell J, Reckitt v Barnett Pembroke and Slater Ltd (1928) 2 KB 244 at p 268 a judgment approved in the House of Lords [1929] AC 176 at 183,195.”

48 Mr Gyles, who appeared for Debby Wong, submitted that such an authority was conferred by the irrevocable authority. He submitted that the two instruments should be construed together because they were both executed at the same time and in the same circumstances. I shall assume that to be so on the principle expressed in Halsbury’s Laws of England, 4th ed, vol 12 “Deeds and Other Instruments” at [1470] that:

“ When a single transaction is carried into effect by several instruments, they are treated as one instrument, and, ... they must all be read together for the purpose of ascertaining the intention of the parties; this is so whether the instruments are actually contemporaneous, that is all executed at the same time, or are executed within so short an interval that the court comes to the conclusion that they in fact represent a single transaction. ”

Nonetheless, I do not consider that the direction in the irrevocable authority authorising Debby Wong to receive payment of Stanley Wong’s share in the proceeds of the sale is an unambiguous authority for her to receive such proceeds for her own benefit or for the benefit of anyone other than Stanley Wong, on whose behalf she is authorised to act. There is no inconsistency between her receiving payment of his share of the proceeds of the sale, or her directing payment of those proceeds, and Stanley Wong retaining the beneficial ownership of the proceeds of sale referable to his share in the property.

49 Debby Wong now disclaims any intention to hold Stanley Wong’s share of the property for her own benefit, although she had previously asserted that she believed she was entitled to ownership of the property. However, an attorney cannot make gifts of the principal’s property to herself or to others. I do not consider that Debby Wong could exercise the power of attorney to sell her brother’s share of the property and apply the proceeds for the benefit of her nephew, or transfer her brother’s interest to herself to be held for her nephew’s benefit, except with her brother’s consent. Whilst I conclude that such consent was given in 2002, it has since been withdrawn.

50 It was submitted for Debby Wong that there was consideration for the transaction given effect to by the power of attorney and irrevocable authority, or that Stanley Wong is estopped from denying the continued validity of that transaction. The consideration was said to be Debby Wong’s forbearance from taking steps to challenge the application by Stanley Wong of the proceeds of sale of the Burwood property, her forbearance from taking steps to challenge Stanley Wong’s exercise of rights of full ownership of the Unara Street property after Michelle Wong’s death, and her forbearance from giving greater scrutiny to Stanley Wong’s management of his mother’s financial affairs. Debby Wong deposed that had her brother not signed the power of attorney and irrevocable authority, she would have sought legal advice on the first two matters and given greater scrutiny to his management of her mother’s affairs and the influence she claims he has exercised over Mrs Wong.

51 These matters were not raised in any communications between Debby Wong and Stanley Wong prior to the execution of the power of attorney and irrevocable authority. She made no threat to seek such legal advice or to consider challenging any transaction which Stanley Wong had effected. More to the point, she did not offer to forbear from taking any such action as the quid pro quo for Stanley Wong’s execution of the documents. There was no consideration for his agreement to transfer his interest in the property to her absolutely or for the benefit for their nephew.

52 Nor do the principles of estoppel preclude Stanley Wong from withdrawing his consent to his interest in the property being applied for the benefit of his nephew. First, I consider that Debby Wong’s evidence, referred to in the preceding paragraph, as to what steps she would have taken had Stanley Wong not signed the documents is an afterthought in an attempt to provide consideration for the transaction. It is significant that notwithstanding the purported revocation of the power of attorney in 2003, Debby Wong did not take any of the steps she says she would have taken had the documents not been signed. Accordingly, I do not accept her assertion that she would have acted differently had Stanley Wong not agreed to sign the documents. In any event, her position was not altered to her detriment by her failing to pursue any of the matters referred to in the preceding paragraph. She had no interest in the Burwood property or in the Unara Street property. She has no direct interest in her mother’s financial affairs. The only detriment that Debby Wong has suffered as a result of the transaction is payment of all of the expenses in relation to the property. That detriment is remedied by a monetary award. It is common ground that on the sale of the property she is entitled to recoup half of those expenses.

53 It follows that Stanley Wong’s consent to the transaction in late 2002 was voluntary and can be withdrawn. His consent to the power of attorney being exercised for the purpose of benefiting either his sister or his nephew has been withdrawn. The power of attorney could not properly be exercised for the purpose for which it was given.

54 Stanley Wong filed a cross-summons seeking an order that the power of attorney be terminated pursuant to s 28 of the Powers of Attorney Act. That section applies notwithstanding that the power of attorney was executed before the commencement of that Act (s 6(5)).

55 Section 28 provides:

“ 28 Supreme Court may order the termination of irrevocable power of attorney

The Supreme Court may order that an irrevocable power of attorney is terminated and may order that the instrument creating the power be delivered up for cancellation if the Court considers that:
(a) the objects of the power of attorney have been carried out, or
(b) the objects of the power of attorney have become incapable of being carried out, or
(c) the power of attorney is otherwise exhausted. ”

56 Mr Blake SC submitted that the power of attorney should be terminated and an order made for its delivery up for cancellation on the grounds in s 28(a), namely, that the objects of the power had been carried out. He submitted that the objects for which the power had been given was to enable Debby Wong to deal with the Owners’ Corporation. For the reasons I have given, I do not accept that that was the object of the power of attorney. However, for the further reasons I have given, I consider that the objects of the power of attorney have become incapable of being carried out. That is to say, the object of the power of attorney was to enable Debby Wong to apply Stanley Wong’s share of the property for the benefit of their nephew, or arguably, for the benefit of herself. However, that object could only be carried out with the consent of Stanley Wong because to exercise the power for that purpose would not be for his benefit. Having withdrawn his consent, as he is entitled to do, the object of the power of attorney is now incapable of being carried out. Accordingly, pursuant to s 28(b) I will order that the power of attorney be terminated and the instrument delivered up for cancellation. Without the power of attorney, the irrevocable authority will have nothing on which to operate because Debby Wong will not be entitled to receive proceeds of the sale of the property referable to Stanley Wong’s share.

Result of Proceedings

57 The proceedings started as a straightforward application by a co-owner of property for the appointment of trustees for sale. That is how they will be concluded. I have rejected Mrs Wong’s claim to beneficial ownership of the property. Her cross-summons should be dismissed. I have rejected Debby Wong’s claim that she is able to deal with Stanley Wong’s share of the property pursuant to the irrevocable power of attorney and irrevocable authority for the benefit of herself or her nephew. I will order the power of attorney to be terminated and for it to be delivered up for cancellation. The result is that Debby Wong is entitled to an order for the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act. There is no issue about the fitness of the proposed trustees. As noted earlier in these reasons, the parties were agreed that Debby Wong should be reimbursed for half of her expenditure on the property from Stanley Wong’s share of the proceeds of sale. The orders appointing trustees for sale should provide for the deduction from the net proceeds of sale of reasonable costs and expenses of the trustees.

58 I direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. I will hear the parties on costs.

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