Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mao v AMP Superannuation Ltd [2015] NSWCA 252 Hearing dates: 13 July 2015 Date of orders: 27 August 2015 Decision date: 27 August 2015 Before: Beazley ACJ; Emmett JA; Leeming JA Decision: 1 The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.
2 Leave to appeal be granted.
3 The requirement for the filing of a notice of appeal be dispensed with.
4 Appeal be allowed in part.
5 Orders (i) and (ii) of the orders made on 18 December 2014 be set aside.
6 The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 be remitted to the Equity Division.
7 Appeal be otherwise dismissed.
8 The respondents pay the applicant’s costs of the summons seeking leave to appeal and of the appeal.Catchwords: PROCEDURE – tutors – determination that a person is under a legal incapacity – whether such a determination by a court has the effect that proceedings involving such a person are automatically stayed – Uniform Civil Procedure Rules 2005 (NSW), r 7.14
PROCEDURE – tutors – application for appointment of tutor – requirement to nominate a person as tutor and to provide evidence that the proposed tutor consents to being appointed – Uniform Civil Procedure Rules 2005 (NSW), r 7.18(5)
PROCEDURE – tutors – appointment of tutor – regularity of orders purporting to appoint a tutor without naming a person as tutor – Uniform Civil Procedure Rules 2005 (NSW), Pt 7 Div 4Legislation Cited: Australian Human Rights Commission Act 1986 (Cth)
Civil Procedure Act 2005 (NSW), s 14
Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 5
Disability Discrimination Act 1992 (Cth)
NSW Trustee and Guardian Act 2009 (NSW), s 41
Privacy Act 1988 (Cth)
Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)
Privacy Regulation 2013 (Cth)
Succession Act 2006 (NSW), Ch 3 Pt 3.2
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 7.15, 7.16, 7.18, 36.15, 51.12, 51.16, 51.25Cases Cited: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794
Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2) [2015] NSWSC 33
Mao v AMP Superannuation Fund [2015] NSWCA 178Category: 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)Representation: Counsel:
Solicitors:
Self-represented (Applicant)
Mr JG Duncan (First and Third Respondents)
Mr DF Villa (Second and Fourth Respondents)
Self-represented (Applicant)
Turks Legal (Respondents)
File Number(s): 2015/13717 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Date of Decision:
- 18…
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- AGLC
- Mao v AMP Superannuation Ltd [2015] NSWCA 252
- Case
- [2015] NSWCA 252
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether a determination by a court that a person is under a legal incapacity automatically stays proceedings involving that person, and the proper application of rules concerning the appointment of tutors, particularly the requirement for the proposed tutor to consent to their appointment and the regularity of orders appointing a tutor without naming a specific individual.
The Court of Appeal considered the interplay between the rules governing legal incapacity and the appointment of tutors. It reasoned that while a determination of legal incapacity has significant procedural implications, it does not automatically trigger a stay of all proceedings. The court also addressed the specific requirements of rule 7.18(5) of the Uniform Civil Procedure Rules 2005 (NSW), which mandates the nomination of a tutor and evidence of their consent. The court found that certain orders made previously regarding the appointment of a tutor were irregular.
Ultimately, the Court of Appeal granted leave to appeal and allowed the appeal in part. It set aside specific prior orders and remitted the question of appointing a tutor for the applicant to the Equity Division for determination. The appeal was otherwise dismissed, with the respondents ordered to pay the applicant's costs.
Orders
Orders of the court
1 The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.
2 Leave to appeal be granted.
3 The requirement for the filing of a notice of appeal be dispensed with.
4 Appeal be allowed in part.
5 Orders (i) and (ii) of the orders made on 18 December 2014 be set aside.
6 The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 be remitted to the Equity Division.
7 Appeal be otherwise dismissed.
8 The respondents pay the applicant’s costs of the summons seeking leave to appeal and of the appeal.
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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