Antasha binti Abdul Rahim 1. ) Koperasi Pembiayaan Syariah Angkasa Berhad 2. ) Demi Idaman Sdn. Bhd.

WA-24NCvC-1982-05/2023 Kand. 42 24/09/2024 16:32:36 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA (BAHAGIAN SIVIL) SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 Dalam Perkara Perjanjian Penyelesaian bertarikh 24/12/2020 di antara DEMI IDAMAN SDN BHD (NO. SYARIKAT: 201001008177 [892801-P]) dan KOPERASI PEMBIAYAAN SYARIAH ANGKASA BERHAD (NO. PENDAFTARAN: W-6- 0717); Dan Dalam Perkara Surat Wakil Kuasa bertarikh 05/01/2021 di bawah kes WA-SKW(IR)- 2378-01/2021 di antara ANTASHA BINTI ABDUL RAHIM (NO. K/P: 650202-01-5804) dan KOPERASI PEMBIAYAAN SYARIAH ANGKASA BERHAD (NO. PENDAFTARAN: W-6-0717) Dan Dalam Perkara Seksyen 6 Akta Surat Kuasa Wakil 1949; Dan 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Dalam Perkara Aturan 7 dan Aturan 28 Kaedah-Kaedah Mahkamah 2012 ANTARA 1. ANTASHA BINTI ABDUL RAHIM (NO. K/P: 650202-01-5804) …PLAINTIF DAN 1. KOPERASI PEMBIAYAAN SYARIAH ANGKASA BERHAD (NO. PENDAFTARAN: W-6-0717) 2. DEMI IDAMAN SDN. BHD. (NO. SYARIKAT: 892801-P) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The issue for determination in this case was about an instrument dated 5th 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 Section 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 2 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Court of Malaya at Shah Alam in March 2023, which was registered as BA-24NCvC-580-03/2023 (“the Shah Alam OS”) wherein the 1st 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, i.e. 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 Section 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 (Enclosure 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 24th 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 3 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 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 S.3 and S.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 1st 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 1st Defendant, presumably as an exhibit in the 1st Defendant’s affidavit. 4 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Her counsel pointed out that Clause 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: [11] On a point of law, the Plaintiff’s stand was that since she did not receive any valuable consideration and there was no supplementary agreement signed, the said Instrument purporting to create the power of attorney was invalid and revocable. The 1st Defendant’s Case [12] The 1st Defendant’s stand was that pursuant to the Settlement Agreement made with the 2nd Defendant, the Plaintiff had by signing the said Instrument created an irrevocable power of attorney for an indefinite period and given the 1st Defendant a right to enforce the power of attorney and compel the Plaintiff to deliver up the original Issue Document of Title of the Plaintiff’s Property. The Plaintiff refused to do so despite repeated requests from the 1st Defendant. The 1st Defendant also discovered that the Plaintiff wanted to sell the Plaintiff’s Property to a third party. [13] The 1st Defendant then decided to apply for enforcement of the said Instrument by filing OS No.3993 seeking the following prayers: 5 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Decision regarding the validity of the said Instrument [14] There was no doubt that the 1st Defendant had intended to ask the Plaintiff to give it an irrevocable power of attorney in respect of the Plaintiff’s Property for an indefinite period. There was also no doubt that the Plaintiff did sign the said Instrument. S.4 of the Powers of Attorney Act 1949, which makes it mandatory for instruments creating powers of attorney to be deposited with the High Court, was also complied with. [15] The reference to “irrevocable powers of attorney” as “powers of attorney coupled with interest” had all along been the common law position when “value” had been given in consideration of the donor granting a power of attorney to the donee. The fact that irrevocability was conferred by valuable consideration was reiterated by Lord Romilly, who was Master of the Rolls in England more than one and a half century ago, in OLDHAM v. OLDHAM (1867) L.R. 3 Eq. 404 with his following words: “In the case of Wilkinson v. Wilkinson (1), to which I was referred, there was the ordinary case of a power of attorney given for value, which, as everybody is aware, is not revocable.” (emphasis added) 6 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] In the United Kingdom, the common law position was codified ninety-nine years ago in S.126 of their Law of Property Act 1925 (“UK LPA 1925”). When the British saw the need to introduce a Powers of Attorney Act in Malaya in the late 1940’s, our Powers of Attorney Act 1949 was enacted with S.6 and S.7 incorporating most parts of S.126 and S.127 of the UK LPA 1925 respectively. [17] Whilst S.126 and S.127 UK LPA 1925 had both been repealed five decades ago by their Powers of Attorney Act 1971 and replaced with a clearer version (in S.4 thereof) that expressly protects the rights of a donee who has acquired proprietary rights in the subject matter of the power of attorney, S.6 and S.7 of our Powers of Attorneys Act 1949 remain in force unamended. [18] In Sidambaram a/l Torosamy v Lok Bee Yeong (representative to the estate of Soma Sundram a/l Doraiswamy) [2017] 4 MLJ 570, reference was made by our Court of Appeal to the concept of “powers of attorney coupled with interest”, which is essentially a reference to S.6 of the Powers of Attorneys Act 1949 that made “valuable consideration” an essential requirement. The following passage from Sidambaram (supra) is instructive: “[19] A power of attorney coupled with interest to the donee will normally be referred to as irrevocable power of attorney to at least give effect to the intention of the parties which may be expressed or implied within the four corners of the terms of the power of attorney itself. Learned authors, Berna Collier and Shannon Lindsay on Power of Attorney in Australia and New Zealand on irrevocable power of attorney had this to say: The principle that an authority coupled with an interest is irrevocable except with the donee’s consent has been recognised for centuries. A good definition of an irrevocable power coupled with an interest 7 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal may be found in the case of CLERK v LAURIE [1857] 2 H&N 199; 157 ER 83: What is meant by an authority coupled with an interest being irrevocable is this — that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable.” (emphasis added) [19] Since S.6 of the Powers of Attorney Act 1949 (“the PA Act 1949”) is the applicable law, the issue for determination would be whether the said S.6 was complied with, for the power of attorney to be irrevocable for an indefinite period. In our present case, the said Instrument was drafted as follows: [20] The clause purportedly creating the power of attorney was worded as follows: 8 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [21] The said S.6 of the PA Act 1949 requires valuable consideration to be given for the Power of Attorney if it is expressed to be irrevocable for an indefinite period, to survive the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power. This could be seen from S.6(1) which states as follows: “(1) If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser— (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 of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and (b) any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and (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 of the power, without the concurrence of the donee of the power, or of the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power.” [22] In our present case, the Plaintiff was not a party to the Settlement Agreement. The 2nd Defendant is a private limited company – a separate legal entity from the Plaintiff and/or her husband who merely served as a 9 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal consultant for the 2nd Defendant. The Plaintiff may rely on the doctrine of privity of contract to distance herself from the terms and conditions of the Settlement Agreement made between the Defendants. [23] The draftsman who drafted the PA Act 1949 had wisely envisaged such situations where instruments drafted to create a power of attorney are invalid. This could be seen from the phrase “purporting to create a power of attorney” in S.4 of the PA Act 1949 that states: “Except as hereinafter provided no instrument purporting to create a power of attorney shall, after the commencement of this Act, have any validity to create such power within West Malaysia until…” [24] Borrowing the aforesaid phrase from the PA Act 1949, it is my judgment that the said Instrument purporting to create a power of attorney that was irrevocable for an indefinite period failed to do so because there was not a word in the said Instrument about any valuable consideration being given by the donee (the 1st Defendant) to the donor (the Plaintiff) for the power of attorney that was expressed to be irrevocable for an indefinite period. Neither did the 1st Defendant’s affidavit mention any valuable consideration being given by the donee (the 1st Defendant) to the donor (the Plaintiff). [25] In the absence of “valuable consideration” being stated and/or proven to have been given, this Court must assume that there was no valuable consideration given for the power of attorney. Consequentially, it was my finding that the said Instrument failed to comply with a mandatory provision of S.6 of the PA Act 1949 and was therefore not irrevocable for an indefinite period. 10 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [26] En passant, it is interesting to note the contrast between S.6 and S.7 of the PA Act 1949. S.7 does not make it mandatory for there to be “valuable consideration”. This could be seen from the phrase “whether given for valuable consideration or not” in S.7 – in contrast with S.6 that makes it mandatory for there to be valuable consideration given to the donor. [27] In our present case, the “power of attorney” was clearly expressed to be irrevocable for an indefinite period. S.6 of the PA Act 1949 was also expressly stated. Hence, the intention to go under S.6 was crystal clear. There was no room for any manoeuvre to steer it into S.7 as a power of attorney for a fixed period. [28] As highlighted above, the glaring absence of “valuable consideration” was fatal to the 1st Defendant’s claim. The Plaintiff was therefore entitled to demand the revocation of the said Instrument as it was not irrevocable for an indefinite period. [29] In any event, the irrevocability of a power of attorney validly created for an indefinite period under S.6 is effective only to protect a donee who was himself a purchaser and/or a purchaser who purchased the donor’s property from the done (in his capacity as the donee). Here, the 1st Defendant was not a purchaser eligible for protection under S.6 – as is evident from the phrase “in favour of a purchaser” in S.6(1) of the PA Act 1949. 11 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel for the Plaintiff: Mohd Hanif Bin Idris SOLICITORS FOR THE PLAINTIFF: MESSRS HANIF IDRIS & ASSOCIATES Advocates & Solicitors No. 40-1A, Jalan Telawi, Bangsar Baru, 59100 KUALA LUMPUR. Counsel for the Defendants: Mior Muhammad Nadjmie Bin Abdul Talib SOLICITORS FOR THE DEFENDANTS: MESSRS TAWFEEK BADJENID & PARTNERS Advocates & Solicitors Suite E-09-20, Amcorp Business Suite, 9th Floor, Menara Melawangi, Jalan Persiaran Barat, 46050 Petaling Jaya, SELANGOR DARUL EHSAN. 13 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal CASES REFERRED: (1) Oldham v. Oldham (1867) L.R. 3 Eq. 404 (2) Sidambaram a/l Torosamy v Lok Bee Yeong (representative to the estate of Soma Sundram a/l Doraiswamy) [2017] 4 MLJ 570 LEGISLATION REFERRED: (1) Section 3 Powers of Attorney Act 1949 (2) Section 4 Powers of Attorney Act 1949 (3) Section 6 Powers of Attorney Act 1949 (4) Section 7 Powers of Attorney Act 1949 (5) S.126 UK Law of Property Act 1925 (6) S.127 UK Law of Property Act 1925 (7) S.4 UK Powers of Attorney Act 1971 14 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR SAMAN PEMULA NO.: WA-24NCvC-1982-05/2023 S/N B5fznBSMw0CjJ4ai3N0GtQ **Note : Serial number will be used to verify the originality of this document via eFILING portal