A power of attorney expressed as irrevocable for an indefinite period is invalid if it does not comply with Section 6 of the Powers of Attorney Act 1949, specifically lacking valuable consideration.

JUDGMENT

Gan Techiong JC:

Introduction

[1] The issue for determination in this case was about an instrument dated 5 January 2021 (" the said Instrument ") purporting to create an irrevocable power of attorney for an indefinite period - whether it was valid to appoint the 1st Defendant as the Plaintiff's attorney/donee irrevocably for an indefinite period. The said Instrument signed by the Plaintiff was deposited at the High Court at Kuala Lumpur in compliance with s 4 of the Powers of Attorney Act 1949 . The relevant law for the purpose of this case was s 6 of the said Act.

[2] The Plaintiff appeared to have filed the proceedings in this case in response to an Originating Summons filed by the 1st Defendant in the High Court of Malaya at Shah Alam in March 2023, which was registered as BA-24NCvC-580-03/2023 ("the Shah Alam OS") wherein the 1 st Defendant herein had prayed, inter alia, for leave to enforce the power of attorney purportedly created by the said Instrument and an order requiring the Plaintiff herein to deliver up the land title of a property belonging to the Plaintiff herein. The Shah Alam OS was subsequently transferred here, ie to the Kuala Lumpur branch of the High Court of Malaya and reregistered as Originating Summons No WA-24NCvC-3993-09/2023 ("OS No 3993").

[3] In this case, the Plaintiff sought a declaration that s 6 of the Powers of Attorney Act 1949 was not complied with, and for a consequential order that the power of attorney purportedly created by the said Instrument to be revoked.

[4] As the same issues arose in the 1st Defendant's action in OS No 3993, I had heard both actions together.

[5] My decision was to allow the prayers in the Plaintiff's Amended Originating Summons (encl 21) and to dismiss the 1st Defendant's application in OS.No 3993. My reasons are as explained below.

Background Facts

[6] The 1st Defendant and the 2nd Defendant (Demi Idaman Sdn Bhd) had entered into a Settlement Agreement dated 24 December 2020 ("the Settlement Agreement") to settle a claim made by the 1st Defendant against the 2nd Defendant. The amount was RM4,658,283.53 (" the Settlement Sum"). The Plaintiff was neither a director nor a shareholder of the 2nd Defendant company.

[7] As security for the Settlement Agreement, the 2nd Defendant undertook to cause a property owned by the Plaintiff held under PN 47804, Lot No 45072, Mukim Pekan Baru Sungai Buloh, Daerah Petaling, Selangor (" the Plaintiff's Property ") to be charged to the 1st Defendant.

[8] The said Instrument was signed by the Plaintiff and duly deposited with the High Court at Kuala Lumpur, in compliance with ss 3 and 4 of the Powers of Attorney Act 1949 .

The Plaintiff's Case

[9] The Plaintiff submitted that sometime in December 2020, her husband, who was serving as a consultant for the 2nd Defendant, had asked her to sign the said Instrument to create a power of attorney to appoint the 1st Defendant as her donee in respect of the Plaintiff's Property for the purpose of helping the 2nd Defendant. According to her, she was assured by her husband that following from the signing of the said Instrument, a valuation report would be prepared for the Plaintiff's Property together with a supplementary agreement between the 2nd Defendant and the 1 st Defendant, which would protect the Plaintiff's rights in the Plaintiff's Property.

[10] The Plaintiff alleged that she was never given a copy of the Settlement Agreement by the Defendants, and the first time she sighted the Settlement Agreement was after these proceedings were filed by the 1 st Defendant, presumably as an exhibit in the 1 st Defendant's affidavit. Her counsel pointed out that cl 2.3(c) of the Settlement Agreement did provide that a valuation report and an additional agreement shall be entered into. The said clause reads as follows:

c) Satu Perjanjian Tambahan (Supplementary Agreement) akan dimetaral setelah Laporan Penilaian dibuat oleh Penilai Professional. Syarat dan terma lain akan disebut di dalarr. Pe