A power of attorney cannot be irrevocable unless valuable consideration is provided, as mandated by Section 6 of the Powers of Attorney Act 1949.

JUDGMENT

Gan Techiong JC:

Introduction

[1] Section 6 of the Powers of Attorney Act 1949 enables the creation of a power of attorney that, in favour of a purchaser, is irrevocable for an indefinite period. The solicitors who drafted the instrument dated 5 January 2021 purporting to create a power of attorney ("the said Instrument") appeared to have overlooked that the said s 6 requires "valuable consideration" to be given for the creation of a Power of Attorney irrevocable for an indefinite period - unlike s 7 of the Act. I shall explain my reasons for dismissing the Plaintiff's application to enforce the said Instrument by discussing the various sections of the .

[2] Two issues arose for determination in this case. The first issue was whether the said Instrument did create a power of attorney which was enforceable by the Plaintiff as an "irrevocable power of attorney for an indefinite period". The second issue was whether a private caveat, entered by a person who was not named as a party in this case, ought to be removed by an order of this Court without giving him a chance to be heard.

[3] The Originating Summons in this case was first filed by the Plaintiff in the High Court of Malaya at Shah Alam in March 2023 and was registered as BA-24NCvC-580-03/2023 ("the Shah Alam OS") wherein the Plaintiff prayed for leave to enforce the power of attorney, an order requiring the Defendant to deliver to the Plaintiff the land title of a property belonging to the Defendant, an order for a private caveat entered by one Shahrul Nizam bin Abdul Aziz - a stranger not named as a party to be removed. In response, the Defendant had filed an Originating Summons in the Kuala Lumpur branch of the High Court of Malaya, and it was registered as WA-24NCvC-1982-05/2023 ("OS No 1982") praying for a declaration that the power of attorney failed to comply with s 6 of the Powers of Attorney Act 1949 , and to be revoked.

[4] The Shah Alam OS was subsequently transferred to Kuala Lumpur because the subject matter was the power of attorney which was registered in this branch of the High Court of Malaya. The Shah Alam OS was re-registered as WA-24NCvC-3993-09/2023, ie this present case, that was heard before me, together with OS No 1982.

[5] My decision was to dismiss the Plaintiff's application in this case and to allow the Defendant's application in OS No 1982.

Background Facts

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

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

[8] The said Instrument was signed by the Defendant 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] DISB failed to pay the Settlement Sum agreed upon in the Settlement Agreement. This led to the Plaintiff demanding that the Issue Document of Title of the Defendant's Property be handed over to be transferred to the Plaintiff. However, the Defendant refused to do so despite repeated requests from the Plaintiff. The Plaintiff also discovered that the Defendant wanted to sell the Defendant's Property to a third party.

[10] The Plaintiff then decided to apply for enforcement of the said Instrument by filing an Originating Summons seeking the following prayers:

1. Bahama Plaintif dibenarkan untuk menguatkuasakan Surat Kuasa Wakil bertarikh 5 Januari 2021 di bawah No kes WA-SKW (IR)-2378-01/2021 yang dimasuki oleh Plaintif dan Defendan ("Surat Kuasa Wakil tersebut");

2. Bahawa Defendan meny