Background
Edward Harding, aged 94, was the sole shareholder and formerly the sole director of three companies. In 2018, he granted an enduring power of attorney to his niece, Kim Allan. In July 2025, he executed another enduring power of attorney appointing three other people and revoking Allan’s appointment. Allan disputed the later instrument’s validity, contending that Harding lacked capacity when he executed it.
Relying on the 2018 instrument, Allan executed shareholder resolutions purporting to remove Harding as director of the companies and replace him with Simon Kelly, who later purported to appoint Amelia Kelly in his place. Proceedings commenced in Harding’s name sought declarations that those actions were invalid and orders restoring him as sole director. Allan and Kelly cross-claimed for declarations that the July 2025 power of attorney was invalid and moved to stay Harding’s proceedings. By then, Harding’s solicitor had ceased acting, leaving Harding unrepresented.
The evidence included a report from consultant geriatrician Professor Tuly Rosenfeld, who diagnosed Harding with significant vascular brain disease, cognitive impairment, dementia with prominent executive impairment, and behavioural problems. Although directed to Harding’s capacity to execute the July 2025 instrument, the report concluded that he could not understand its nature, purpose, and consequences and that his incapacity continued.
The Court’s Holding
Parker J found that Professor Rosenfeld’s conclusions also established that Harding lacked capacity to conduct the litigation. Rule 7.14 of the Uniform Civil Procedure Rules 2005 therefore required the proceedings on Harding’s behalf to be conducted by a tutor. Because no application had been made under r 7.18 to appoint one, the Court stayed the proceedings on Harding’s statement of claim pending such an appointment.
The Court also stayed the cross-claim against Harding, as first cross-defendant, pending the appointment of a tutor. It did not stay the cross-claim against the other cross-defendants: those proceedings, including the challenge to the validity of the July 2025 power of attorney, remained properly constituted and were permitted to continue. The Court additionally dispensed with service of the notice of motion on Harding and listed the unstayed portion of the cross-claim for further mention.
Key Takeaways
- A person who lacks capacity to conduct litigation may participate only through a tutor under r 7.14 of the Uniform Civil Procedure Rules 2005.
- Where no tutor has been appointed, the Court may stay both proceedings brought in the person’s name and claims brought against that person.
- A stay based on one party’s incapacity does not necessarily halt the entire case; properly constituted claims against other parties may continue.
Why It Matters
The decision illustrates how an incapacity issue can produce a targeted procedural stay rather than suspending all related litigation. Harding’s own claim and the cross-claim against him could not proceed without a tutor, but the challenge to the July 2025 power of attorney could continue against the remaining cross-defendants.
For practitioners, the judgment underscores the need to address tutor appointment promptly when medical evidence indicates that a party cannot conduct proceedings. It also highlights the importance of identifying separately which claims require the incapable person’s participation and which remain properly constituted without it.