Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd

[2016] NSWSC 382

Supreme Court

New South Wales

Medium Neutral Citation:

Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2016] NSWSC 382

Hearing dates:

4 April 2016

Date of orders:

04 April 2016

Decision date:

04 April 2016

Jurisdiction:

Equity

Before:

Hallen J

Decision:

Stand over the proceedings until 9:30 a.m. on Tuesday, 10 May 2016 for further directions.

Direct the first Defendant’s solicitors to inform the Plaintiff of the adjourned date, and provide her with a copy of these reasons by letter sent no later than Monday, 11 April 2016.

Catchwords:

The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 remitted to the Equity Division by Court of Appeal - Matter relisted before Court – No appearance by Plaintiff – Matter adjourned to enable Plaintiff to appear - No matter of principle

Legislation Cited:

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

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 Ltd [2015] NSWCA 252

Category:

Procedural and other rulings

Parties:

Youhua Mao (Plaintiff)
AMP Superannuation Ltd and AMP Life Ltd (Defendants in 2013/232241)
BT Funds Management Ltd and AIA Australia Ltd (Defendants in 2013/244238)

Representation:

Counsel:
Mr J Duncan (Defendants in 2013/232241)
Mr D Villa (Defendants in 2013/244238)

Solicitor:
Turks Legal (Defendants)

File Number(s):

2013/232241; 2013/244238

Judgment

1. HIS HONOUR: This is a further occasion that the matter has been listed before me for consideration. It has been listed on a number of other occasions for directions prior to an appeal being lodged.

2. It was listed today at my instigation, as this and an associated matter had been remitted to the Equity Division by the Court of Appeal following the determination of an application for leave to appeal from orders made by me on 18 December 2014. Today, it is only necessary to note that the medium neutral citation of the reasons for judgment is Mao v AMP Superannuation Ltd [2015] NSWCA 252. (My reasons for judgment bear the medium neutral citations Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794; and Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2) [2015] NSWSC 33).

3. Relevantly, the question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 was remitted to the Equity Division.

4. No application had been made by any party following the reasons for judgment of the Court of Appeal, to have the matters brought back before me so that consideration could be given to the determination of the question that was remitted by the Court of Appeal.

5. Notice was given to the Plaintiff that the matters were to be listed today by email sent by my Associate on 29 February 2016. When the matters were called this morning, there was no appearance, by her or on her behalf. Nor had any response to my Associate’s email been received by the Court, or by either of the Defendants.

6. Apparently the Plaintiff filed an affidavit on 16 February 2016 in relation to a letter sent by the Registry of the Court to her in late December 2015 relating to her failure to appear at another mention before the Registrar. She was informed that the matter would be dealt with in her absence on 17 February 2016. She did not appear on that date either, but the affidavit to which I have referred, which was not served on either of the Defendants, reveals that “the earliest date to appear at Court will be 15 April 2016”. In the affidavit, she requested “the matter for show cause to be listed on or after 15 April 2016”.

7. I shall infer that she has been unable to attend before me today because the listing was inconvenient to her. Regrettably, she did not inform the Court, or either of the Defendants, that she would be unable to attend.

8. The other issue that has been agitated this morning is the issue relating to the further conduct of the proceedings. Currently, there is no person who is identified as being prepared to appear as tutor for the Plaintiff and neither has the Plaintiff sought to nominate a person to act as her tutor.

9. I had considered whether the Court, of its own motion, should make an appropriate declaration as to the Plaintiff’s inability to manage her affairs and make a partial management order under s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) in my judgment (at [153]-[157] of my reasons for judgment the subject of the appeal). I did not make an order, at that time, because I concluded that there had been no submissions by any party on whether such an order should be made.

10. Each Plaintiff has submitted that, in all the circumstances, that may be an appropriate procedure to follow. No doubt, the Plaintiff would not think so and as previously, before considering the matter further, she should be given an opportunity to be heard.

11. I am of the view that because of the failure of the Plaintiff to appear today, the matters raised should not be dealt with in any way, but should be adjourned to a date after 15 April 2016, and that the Plaintiff should be given notice that on the adjourned date consideration will be given to the issues raised above. On that date, the matter will proceed by way of directions only.

12. In addition, a copy of these reasons should be provided to her.

13. If the date to which I adjourn the matter is not suitable to the Plaintiff, she should inform each of the Defendants’ solicitors, and the Court, of that fact, and should provide a range of dates when she might be available. Subject to the Defendant in each matter agreeing to an alternative date, the matter may be adjourned by order made in Chambers to the mutually convenient time to suit all parties.

14. I stand the matter over until 9:30 a.m. on Tuesday, 10 May 2016 for further directions. I direct the first Defendant’s solicitors to inform the Plaintiff of the adjourned date, and provide her with a copy of these reasons by letter sent no later than Monday, 11 April 2016.

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Decision last updated: 07 April 2016