Mao v AMP Superannuation Ltd

[2018] NSWCA 72

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 required

Legislation 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, 7.18

Cases 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 589

Category:

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:
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)

  Solicitors:
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

1. 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.

2. 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…