The underlining is mine.
10 The modern law is well stated in the Corpus Juris Secundum, Volume 2A paragraph 138 on page 739, which, omitting irrelevant details, is as follows:
"Where the authority of an agent is derived from joint principals who are jointly interested in its execution, the death of one of the principals generally terminates the agency … except where the agency is coupled with an interest; but an agent who has been authorized by two principals, one of whom dies, continues to be authorized to act for the survivor if the authorization of the survivor so indicates.
"A power of attorney which, although conferred by two principals, is clearly issued severally by them, is not revoked by the death of one of the principals ... ."
11 One thus needs to construe this power of attorney to see whether it is a power given by the jointure of the husband and wife or by each of them severally. There are indications both ways. The "we" in the typed part, particularly in view of what has been omitted, suggests that it is a joint power. On the other hand, although the word "we" has been inserted twice, the donors have left the word "my" wherever it appears.
12 Generally speaking, one cannot construe a document with reference to subsequent conduct of the parties; see eg Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. Santow J thought that rule might not still exist; see Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290. However, his views have not been met with universal acclamation. Whatever the extent of the rule in Schuler v Wickman, it is clear that there are some exceptions. One exception is where it is necessary to construe an ancient land grant; see eg Watcham v Attorney-General of East Africa Protectorate [1919] AC 533 and Administrator of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353. A second is where the Court needs to consider whether a contract has been made at all; see eg Pacific Film Pty Ltd v Film Bars Pty Ltd (1980) 1 BPR 9147. A third is where one needs to work out what are the terms of the contract. The most stark illustration is Wrigley v Cornelius 44 NE 406 (1896) (Illinois Supreme Court) where on the issue as to whether the defendant contracted to purchase from the plaintiff 10,000 pictures with frames or merely 5,000, evidence was given that shortly afterwards the defendant made a contract for 10,000 frames to be delivered.
13 Within this third exception appears to be the case where it is unclear whether an instrument was to operate jointly, severally or jointly and severally. The passage from the Corpus Juris Secundum supports this, as do the authorities behind it, namely, Whitney v Krasne 225 NW 245 (1929) (Iowa SC) and even more significantly, Ferguson v Pilling 1 NW (2d) 662 (1942) (Iowa SC).
14 There are other exceptions, not relevant to the instant case such as conduct showing the true consideration for the contract and whether there was a condition precedent to its operation; see Chitty on Contracts (Sweet & Maxwell, London, 1999) 28th ed 12-106 et seq.
15 In the instant case there is evidence that the property was jointly owned, so that one could reasonably expect the power of attorney to be a power of attorney which would operate jointly whilst both survived and then for the survivor. There is also the use of the word "my" in the power of attorney and the additional evidence by conduct that since the death of Mr Jeffery, Mrs Jeffery has on at least 10 occasions been involved in discharging mortgages through her attorney, Mrs Cox. Mrs Cox has met with Mrs Jeffery. Both the solicitors and Mrs Cox have reported to Mrs Jeffery what they are doing and Mrs Jeffery has always indicated complete satisfaction.
16 On all these matters it is clear that the power of attorney was intended to operate and does operate as a grant of authorisation by Mr and Mrs Jeffery jointly and severally. This being so, the death of Mr Jeffery does not terminate Mrs Cox's authority to act for Mrs Jeffery.
17 I will make the appropriate declaration.
18 Two other matters should be mentioned. In his interesting submissions, Mr Haffenden of counsel for the applicants, put that if I did not come to that conclusion then it was a case where Mrs Jeffery was "incommunicate" within the meaning of sections 163D and 163G of the Conveyancing Act 1919. I do not consider that the definition of that term covers the case where a person is somewhere on the high seas, and can't communicate. It appears to me that it is only where a person is physically unable because of some handicap of body or mind that the section can be utilised. However, had I been of the view that Mrs Jeffery was incommunicate, then it would seem to me there would be no trouble with section 163G(2) and that the Court may, amongst other things, appoint a person to fill a vacancy in the office of attorney.
19 There is an apparent problem with the words "on the application by the principal". However, this is partly cured by section 163H of the Conveyancing Act. Further, one assumes that when a solicitor informs the Court that he acts for the plaintiff, that he does so. Mrs Jeffery could well have been made a co-plaintiff and the solicitor properly could have informed the Court he represented her. In any event this is a mere matter of procedure and Lord Cottenham's golden rule in Wallworth v Hall (1841) 4 My & Cr 619, 635; 41 ER 238, 244, that the Court never allows rules of general procedure to get in the way of doing equity, would have applied.
20 Even if I had not come to the view that the power of attorney was valid, a simple method of dealing with the matter would have been to order Mrs Jeffery to execute the instrument herself within a short period of time, and then, when she did not comply, order that the instrument be executed by Mrs Cox under section 100 of the Supreme Court Act 1970.
21 There are, of course, also remedies by way of appointing a receiver or by invoking the provisions of section 98 of the Conveyancing Act, but these involve additional administration and expense.
22 Accordingly, I declare that the power of attorney registered Book 4097 No 32 continues in force as a power of attorney from Jennifer Nora Jeffery to Glynis Megan Cox, notwithstanding the death of Peter Frederick Jeffery.