Mao v AMP Superannuation Limited - [2017] NSWCA 296

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mao v AMP Superannuation Limited [2017] NSWCA 296
Hearing dates: 13 November 2017
Date of orders: 13 November 2017
Decision date: 13 November 2017
Before: White JA
Decision:
Refer to [18] and [19] of judgment.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — interlocutory relief sought to stay orders made by primary judge pending application for leave to appeal — orders appointing NSW Trustee & Guardian as manager of part of applicant’s estate under s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) — mere filing of application for leave to appeal is not a basis to grant stay — no demonstrable basis for staying orders
CIVIL PROCEDURE — Parties — Joinder — application to substitute tutor — appropriate to join solicitors of current tutor to proceedings — leave granted to amend notice of motion
Legislation Cited: Civil Procedure Act 2005 (NSW), s 76
NSW Trustee and Guardian Act 2009 (NSW), s 41(2)
Superannuation Industry (Supervision) Act 1993 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 7.14
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Chen v Lym International [2009] NSWCA 121
Texts Cited: Nil
Category: Principal judgment
Parties: Youhua Mao (Applicant)
AMP Superannuation Limited (1st Respondent)
BT Funds Management Limited (2nd Respondent)
AMP Life Limited (3rd Respondent)
AIA Australia Limited (4th Respondent)
NSW Trustee and Guardian (5th Respondent)
Maurice Blackburn Pty Ltd (6th Respondent)
Representation:
Counsel:
Self Represented (Applicant)
E Esber (1st and 3rd Respondents)
D F Villa (2nd and 4th Respondents)
J Brouwer (5th Respondent)
N/A (6th Respondent)
Solicitors:
N/A (Applicant)
Turks Legal (1st-4th Respondents)
NSW Trustee and Guardian (5th Respondent)
N/A (6th Respondent)

File Number(s): 2017/230266
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 987

Date of Decision:

26 July 2017

Before:

Ward CJ in Eq

File Number(s):

2013/232241

Judgment

WHITE JA: On 26 July 2017 Ward CJ in Eq made orders including an order on the Court’s own motion pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appointing the NSW Trustee and Guardian (the “NSW Trustee”) as manager of so much of the estate of the plaintiff as pertains to the plaintiff’s right, title and interest in proceedings 2013/232241 and in proceedings 2013/244238 (the “Equity proceedings”). Although the statements of claim in those proceedings are not before me, it appears from the judgment of her Honour and other judgments in relation to the applicant (Ms Mao) that she commenced proceedings in 2013 against what has been called the “AMP entities” and the “BT entities”, claiming an entitlement to benefits under superannuation trust deeds for claimed total and permanent disabilities.
The background to the orders made by Ward CJ in Eq is set out in her Honour’s judgment and I will not repeat it.
On 5 October 2017 the applicant, Ms Mao, filed a summons seeking leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mao v AMP Superannuation Limited

Details

AGLC: Mao v AMP Superannuation Limited [2017] NSWCA 296
Case: [2017] NSWCA 296
Decision Date: 13 November 2017

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application by Ms. Mao for a stay of interlocutory orders made by a primary judge. These orders had appointed the NSW Trustee & Guardian as manager of a portion of Ms. Mao's estate pursuant to section 41(2) of the *NSW Trustee and Guardian Act 2009* (NSW). The application for stay was sought pending Ms. Mao's application for leave to appeal the primary judge's orders.

The central legal issue before the Court of Appeal was whether the mere filing of an application for leave to appeal was sufficient grounds to grant a stay of the primary judge's orders. The Court also considered an application to join the solicitors of the current tutor to the proceedings and to amend a notice of motion.

White JA held that the mere filing of an application for leave to appeal does not, in itself, constitute a basis for granting a stay of proceedings. The Court found that there was no demonstrable basis presented by Ms. Mao to justify staying the orders made by the primary judge. Consequently, the application for a stay was refused. The Court also granted leave to amend the notice of motion and ordered that the solicitors of the current tutor be joined to the proceedings.

Orders

Orders of the court

Refer to [18] and [19] of judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Mao v AMP Superannuation Limited [2017] NSWCA 296
Hearing dates:	13 November 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Before:	White JA
Decision:	Refer to [18] and [19] of judgment.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — interlocutory relief sought to stay orders made by primary judge pending application for leave to appeal — orders appointing NSW Trustee & Guardian as manager of part of applicant’s estate under s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) — mere filing of application for leave to appeal is not a basis to grant stay — no demonstrable basis for staying orders CIVIL PROCEDURE — Parties — Joinder — application to substitute tutor — appropriate to join solicitors of current tutor to proceedings — leave granted to amend notice of motion
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 76 NSW Trustee and Guardian Act 2009 (NSW), s 41(2) Superannuation Industry (Supervision) Act 1993 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 7.14
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chen v Lym International [2009] NSWCA 121
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Youhua Mao (Applicant) AMP Superannuation Limited (1st Respondent) BT Funds Management Limited (2nd Respondent) AMP Life Limited (3rd Respondent) AIA Australia Limited (4th Respondent) NSW Trustee and Guardian (5th Respondent) Maurice Blackburn Pty Ltd (6th Respondent)
Representation:	Counsel: Self Represented (Applicant) E Esber (1st and 3rd Respondents) D F Villa (2nd and 4th Respondents) J Brouwer (5th Respondent) N/A (6th Respondent) Solicitors: N/A (Applicant) Turks Legal (1st-4th Respondents) NSW Trustee and Guardian (5th Respondent) N/A (6th Respondent)
File Number(s):	2017/230266
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2017] NSWSC 987 Date of Decision: 26 July 2017 Before: Ward CJ in Eq File Number(s): 2013/232241