Report 18 (1974) - Powers of Attorney

Appendix A - Extracts From The Conveyancing Act, 1919

PART I- INTERPRETATION
7. (1) In the interpretation of this Act, and of any rules or regulations madethereunder, unless the context or subject matter otherwise indicates or requires-	Interpretation.
“Assurance” includes a conveyance and a disposition made otherwise than by will; and “assure” has a corresponding meaning.
“Purchaser” means a purchaser for valuable consideration, and includes a lessee, mortgagee, or other person who for valuable consideration acquires an interest in property, except that in Part IV, Divisions 5 and 6 of this Act “purchaser” means only a person who acquires an interest in or charge on property for money’s worth; and purchase has a meaning corresponding with that of “purchaser”.
PART XVI - POWERS OF ATTORNEY.
158. (1) In this Part the expression “power of attorney” or “power” shall include an authorised substitution, delegation, or appointment of sub-attorney : Provided that nothing in this Part shall enable the donee of a power irrevocably to appoint a substitute, delegate, or sub-attorney, unless expressly authorised so to do.	Definition. New subsection added, Act No.23, 1920, s.2.
(2) This Part shall extend to powers of attorney authorising, whether expressly or in general terms, the execution of dealings under the Real Property Act, 1900.	Application of Part XVI to land under Real Property Act, 1900. Amended, Act No.17, 1972, s.12(a).
159. (1) The donee of a power of attorney may execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal (where sealing is required) by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.	Execution under power of attorney, 44 & 45 Vic., c.41, s.46.
(2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
160. (1 ) Subject to any stipulation to the contrary contained in the instrument creating a power of attorney, such power shall, so far as concerns any act or thing done or suffered thereunder in good faith, operate and continue in force until notice of the death of the donor of the power, or, until notice of other revocation thereof has been received by the donee of the power.	Powers of attorney to continue in force until notice of death or revocation. See Ibid. s.47. 1901, No.37, s.14.
(2) Every act or thing, within the scope of the power done or suffered in good faith by the donee of the power after such death or other revocation as aforesaid, and before notice thereof has been received by him, shall be as effectual in all respects as if such death or other revocation had not happened or been made.	All acts to be valid if done before receipt of any such notice.
(3) A statutory declaration by the donee of the power in or to the effect of the form set out in the Seventh Schedule hereto, if made at the time such act or thing was done or suffered, or at any time after shall be taken to be conclusive proof of such non-revocation at the time when such act or thing was so done or suffered in favour of all persons dealing with the donee of the power in good faith and for valuable consideration without notice of such death or other revocation.	Declaration by donee of power of non-receipt of notive to be proof of non-revocation. Seventh Schedule.
(3A) Where the donee of the power is a corporation aggregate the declaration may be made by any officer of the corporation appointed for that purpose either generally or in the particular instance by the board of directors, council, or other governing body by resolution or otherwise; and where the declaration contains a statement that the declarant is an officer of the corporation appointed for the purpose of makincy the declaration, that statement shall be conclusive evidence in favour of the persons mentioned in subsection three of this section.	cf. 15 Geo. V. c.20, s.124(2). New subsection added, Act No.44, 1930, s.29(a).
(4) (a) Where any instrument made after the commencement of this Act is made or purports to be made in exercise of a power of attorney, a statement that the donee of the power has no notice of the revocation of the power of attorney at the time of the makino, by him of such instrument if contained-	Amended Act No.65, 1932, s.3(1)(i).
(i) in the body of the instrument; or
(ii) in a memorandum indorsed on the instrument signed by the donee of the power at the time of making such instrument, and stating the date and place of signature, such signature being attested by one witness,
shall have the same force and effect as the statutory declaration mentioned in subsection three.
(b) Any donee of a power of attorney or person purporting to act as a substitute, delegate, or sub-attorney who signs any such instrument or memorandum knowing such statement to be untrue, or falsely states in such memorandum the date of the signature thereof, shall be guilty of a misdemeanour.	Amended Act No.23, 1920, s.2.
(4A) * * * * *	New subsection added, Act No.8, 1943, s.2(a). Amended Act No.29, 1943,s.2(1). Repealed Act No.17, 1972, s.12(b).
(4B) * * * * *	New subsection added, Act No.29, 1943, s.2(2). Repealed Act No.17, 1972, s.12(b).
(5) In this section “revocation” includes the determination of the power otherwise than by the expiration of a fixed period of time.
(6) * * * * *	Repealed Act No.23, 1920, s.2.
(7) This section applies to powers of attorney executed in or out of New South Wales, and whether executed before or after the commencement of this Act.
161. (1) Where a power of attorney given for valuable consideration (whether executed in or out of New South Wales) is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser,-	Irrevocable power of attorney for value. See 45 & 46 Vic., c.39, s.8.
(a) the power shall not be revoked at any time, either by anything done by the donor of the power without,the concurrence of the donee, or by the death, mental disability or bankruptcy of the donor; and	Amended Act No.17, 1972, s.12(c).
(b) any act done at any time by the donee of the power m pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, mental disability or bankruptcy of the donor, had not been done or had not happened; and	Amended, Ibid.
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor without the concurrence of the donee, or of the death, mental disability or bankruptcy of the donor.	Amended Act No.17, 1972, s.12(c).
(2) This section applies only to powers of attorney created by instruments executed after the commencement of this Act.
162. (1) Where a power of attorney (whether executed in or out of New South Wales, and whether given for valuable consideration or not) is in the instrument creatingthe power expressed to be irrevocable for a fixed time therein specified, not exceeding two years from the date of the instrument, then, in favour of a purchaser,-	Power of attorney made irrevocable for fixed time. See 45 & 47 Vic., c.39, s.9.
(a) the power shall not be revoked for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee, or by the death, mental disability or bankruptcy of the donor; and	Amended, Ibid. s.12(d).
(b) any act done within that fixed time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, mental disability or bankruptcy of the donor had not been done or had not happened; and	Amended, Ibid.
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice, either during or after that fixed time, of anything done by the donor during that fixed time without the concurrence of the donee, or of the death, mental disability or bankruptcy of the donor within that fixed time.	Amended, Ibid.
(2) This section applies to powers of attorney created by instruments executed before or after the commencement of this Act.
162A. Any act done, whether before or after the commencement of the Conveyancing (Amendment) Act, 1930, in professed exercise of a power mentioned in either section one hundred and sixty-one or section one hundred and sixty-two of this Act, and within the time, if any, fixed by the power, shall, in favour of a purchaser without notice of the revocation of the power with the concurrence of ithe donee thereof, be as valid as if the power had not been so revoked.	Protection of purchaser under irrevocable power. New section added, Act No.44, 1930, s.29(b).
163. (1) Any instrument (whether executed before or after the commencement of this Act) creating a power of attorney for any purpose whatever may be registered.	Registration of powers of attorney. See Vict. Act No.2, 6/2, s.219.
(2) Where such instrument is executed after the commencement of this Act no conveyance or other deed not being a lease or agreement for a lease for a term not exceeding three years, and no memorandum by this Act operating as a deed executed by the donee of the power in pursuance of the power shall be of any force or validity whatsoever unless the instrument creating the power has been registered:	See 44 & 45 Vic., c.41, s.48.
Provided that on registration of the instrument creating the power every such conveyance deed or memorandum executed by the donee of the power shall take effect as if the instrument creatino, the power had been registered before the execution of the conveyance deed or memorandum.	Proviso added, Ibid s.29(c)(i).
(3) Any instrument revoking any such power may also be registered.
(4) Every such conveyance and other deed and memorandum as is mentioned in subsection two executed by the donee of a power of attorney before the commencement of the Conveyancing (Amendment) Act, 1930, shall have the same effect as if that Act had been in operation at the time of the execution.	New section added, Ibid. s.29(c)(i).
(5) Nothing in the last preceding subsection shall affect the rights of any party to any proceeding at law or in equity concluded before or pending at the commencement of the Conveyancing (Amendment) Act, 1930.	New subsection added, Ibid.

 

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