Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mao v AMP Superannuation Ltd [2018] NSWCA 72 Hearing dates: 10 April 2018 Date of orders: 10 April 2018 Decision date: 11 April 2018 Before: Basten JA; Leeming JA Decision: (1) Refuse the application of the applicant for an adjournment of the proceedings.
(2) Refuse the applicant’s application for a stay of the proceedings.
(3) Dismiss the application for leave to appeal from the judgment of Ward CJ in Eq of 26 July 2017 as incompetent.Catchwords: APPEAL – application for leave – applicant incapable of managing her affairs – manager appointed to manage rights and interests pertaining to proceedings – application not brought by manager or tutor – whether application incompetent – whether requirement to bring proceedings by tutor should be waived – whether arguable error by trial judge
APPEAL – applicant incapable of managing her affairs – order appointing manager to manage rights and interests pertaining to proceedings – whether order interlocutory or final – whether leave requiredLegislation Cited: Civil Procedure Act 2005 (NSW), s 14
Constitution, s 51(xxxi)
Judiciary Act 1903 (Cth), s 78B
NSW Trustee and Guardian Act 2009 (NSW), ss 38, 39, 41, 71
Uniform Civil Procedure Rules 2005 (NSW), rr 7.14; 7.15, 7.18Cases Cited: Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794
Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534; 192 FLR 92
Re GHI (a protected person) [2005] NSWSC 581; [221 ALR 589Category: Principal judgment Parties: Youhua Mao (Applicant)
AMP Superannuation Ltd (First Respondent)
BT Funds Management Ltd (Second Respondent)
AMP Life Ltd (Third Respondent)
AIA Australia Ltd (Fourth Respondent)
NSW Trustee and Guardian (Fifth Respondent)Representation: Counsel:
Solicitors:
Applicant in person
Mr J G Duncan (First and Third Respondents)
Mr D F Villa (Second and Fourth Respondents)
Ms S Kaur-Bains/Mr A Smorchevsky (Amici Curiae)
Applicant self-represented
Turks Legal (First to Fourth Respondents)
NSW Trustee (Fifth Respondent)
File Number(s): 2017/230266 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity Division
- Citation:
- [2017] NSWSC 987
- Date of Decision:
- 26 July 2017
- Before:
- Ward CJ in Eq
- File Number(s):
- 2013/232241
Judgment
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JUDGMENT of THE COURT delivered by BASTEN JA: Some four years ago, Ms Mao, originally with legal representation, commenced proceedings in the Equity Division seeking to enforce entitlements she claimed to have in superannuation funds under the control of the respondents. Her solicitors ceased to act on 15 April 2014, in circumstances where Ms Mao’s mental health had deteriorated to an extent that her solicitors were unable to obtain meaningful instructions.
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If it were established to the satisfaction of the Court that the applicant was incapable of managing the litigation, then the litigation would be stayed until such time as a tutor was appointed or, if no tutor were available, an order was made appointing a…
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- AGLC
- Mao v AMP Superannuation Ltd [2018] NSWCA 72
- Case
- [2018] NSWCA 72
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two principal legal issues. Firstly, whether the application for leave to appeal was incompetent because it was not brought by the appointed manager or a tutor, and if so, whether the requirement to bring proceedings by a tutor should be waived. Secondly, the Court considered whether the order of Ward CJ in Eq of 26 July 2017 was interlocutory or final, and consequently, whether leave to appeal was required.
The Court reasoned that the rules of court generally require proceedings on behalf of a person under a legal incapacity to be brought by a tutor or, in this instance, by the appointed manager. As the application was not brought in this manner, it was deemed incompetent. The Court found no basis to waive this requirement. Furthermore, the Court determined that the order of 26 July 2017 was interlocutory, meaning that leave to appeal was indeed necessary.
Consequently, the Court of Appeal refused the applicant's applications for an adjournment and a stay of proceedings. The application for leave to appeal from the judgment of Ward CJ in Eq of 26 July 2017 was dismissed as incompetent.
Orders
Orders of the court
(1) Refuse the application of the applicant for an adjournment of the proceedings.
(2) Refuse the applicant’s application for a stay of the proceedings.
(3) Dismiss the application for leave to appeal from the judgment of Ward CJ in Eq of 26 July 2017 as incompetent.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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