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Representation: Counsel:
F Empeigne (first and second defendants)
Solicitors:
Vale Legal (first and second defendants)

File Number(s): 2026/79730

Publication restriction: Nil

JUDGMENT – EX TEMPORE

Revised from transcript and annotated; issued 16 September 2026

1. The plaintiff in these proceedings, Mr Edward Harding, is 94 years old. He is the sole shareholder, and was, at least up until December last year, the sole director, of three companies, Cheval Holdings Pty Limited, Chrisflo Pty Limited and Jorubay Pty Limited, which are the third, fourth and fifth defendants.

2. In 2018 Mr Harding executed an enduring power of attorney in favour of the first defendant, Ms Kim Allan. She is his niece.

3. In July last year Mr Harding executed a further enduring power of attorney in favour of three other persons and revoking the appointment of Ms Allan. The persons who were named in that instrument as the replacement power of attorneys were Mr Harding’s nephew Mr Ronald Harding, Mr Michael Seatter (who is the ex-partner of Mr Harding’s estranged daughter), and, as a substitute attorney, Ms Christine Anne Carter.

4. Ms Allan does not accept that the July 2025 instrument was valid. She contends that by the time the instrument was executed, Mr Harding had lost capacity. She has therefore continued to assert control of Mr Harding’s affairs relying on the 2018 power of attorney granted to her.

5. In December last year, Ms Allan, purporting to exercise her enduring power of attorney under the 2018 instrument, executed circulating shareholder resolutions for the three companies. The resolutions purported to remove Mr Harding as director and replace him with Mr Simon Kelly. Mr Kelly is married to Ms Amelia Kelly, who is a granddaughter of Mr Harding. In January, Mr Kelly purported to replace himself as sole director of the companies with Ms Kelly, who is the second defendant.

6. The present proceedings were commenced in the name of Mr Harding in February this year. The summons was filed by Mr Michael Clear, a solicitor in practice at Belrose. His firm is named “Clear Lawyers”.

7. The summons sought declarations that Ms Allan’s action in executing the circular resolutions was invalid because the 2018 power of attorney in her favour had been previously, and validly, revoked. Consequential orders were sought to restore Mr Harding as the sole director of the three companies.

8. The defendants through their solicitors raised with Mr Clear the question of Mr Harding’s capacity to conduct these proceedings. In May this year, they obtained a medicolegal report on Mr Harding’s capacity from Professor Tuly Rosenfeld, a consultant geriatrician and physician.

9. Professor Rosenfeld examined Mr Harding and diagnosed him as suffering with “significant vascular brain disease, cognitive impairment, dementia with prominent frontal lobe executive impairments, and significant behavioural problems”. These are known clinically as “behavioural and psychological symptoms of dementia”.

10. Professor Rosenfeld expressed the opinion that Mr Harding lacked capacity to grant the July 2025 power of attorney at the time he executed the instrument, in the sense that he was unable to understand its nature, purpose, and consequence. In Professor Rosenfeld’s opinion, that lack of capacity, being based on Mr Harding’s physical condition, continues.

11. Professor Rosenfeld’s report was provided to Mr Clear on 30 June. Mr Clear responded that he had “received expert medical input from an independent doctor in relation to [the report] and [Mr Harding’s] capacity” which had led Mr Clear to believe that “it may be appropriate” for a tutor to be appointed for Mr Harding. Mr Clear proposed that Mr Ronald Harding be appointed, or possibly Mr Ronald Harding’s adult daughter, Ms Sarah Harding.

12. This proposal was rejected by the defendants. On 9 July, Mr Clear wrote again, stating that in the light of the defendants’ opposition, neither Mr Ronald Harding nor Ms Sarah Harding pressed for appointment as tutor.

13. In the meantime, the proceedings had come before me in the Expedition List. I stood them over to find a procedural way to deal with the problem of Mr Harding’s contested capacity.

14. This resulted in Ms Allan and Ms Kelly filing a cross claim naming Mr Harding and his attorneys as cross defendants. They sought declarations that the July 2025 power of attorney is invalid. They also made an application by way of notice of motion to stay the proceedings by Mr Harding, which is the subject of this judgment.

15. By the time the notice of motion was filed, Mr Clear had filed a notice of ceasing to act in the proceedings, and Mr Harding became unrepresented. In the circumstances disclosed by the affidavit in support of the application, which included Professor Rosenfeld’s report, I am satisfied that service of the notice of motion on Mr Harding should be dispensed with.

16. Although the report is addressed specifically to the question of capacity to execute the power of attorney, the conclusions expressed by Professor Rosenfeld would equally have the result that Mr Harding lacks capacity to conduct these proceedings. [1] Rule 7.14 of the Uniform Civil Procedure Rules 2005 therefore applies, which provides that the proceedings may only be conducted on behalf of Mr Harding by a tutor. No application has been made for the appointment of a tutor under r 7.18. In those circumstances, I think there is no alternative but to stay the proceedings on the statement of claim. [2]

17. By r 7.14, the cross claim cannot continue against Mr Harding as a cross-defendant and the proceedings against him on the cross claim should therefore be stayed. However, the proceedings against the other cross-defendants, insofar as they concern the validity of the power of attorney, remain properly constituted and will continue.

18. On the defendant’s notice of motion filed 28 August 2026, the Court’s orders are:

19. Order that the service of the notice of motion be dispensed with.

20. Order that the proceedings on the plaintiff’s statement of claim be stayed pending the appointment of a tutor for him.

21. On the cross claim proceedings, the Court’s orders are:

22. Order that proceedings on the cross claim against the plaintiff (as first cross defendant) be stayed pending the appointment of a tutor for him.

23. On the defendants’ cross claim, list the proceedings (to the extent not stayed) for mention in the Expedition List on 25 September 2026.

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Endnotes

Murphy v Doman (2003) 58 NSWLR 51 at [52].

In my recent decision Sasterawan v Molla [2026] NSWSC 1116, delivered after delivery of my ex tempore judgment in these proceedings, I explain why I consider a stay is available, and suitable, in such circumstances.