Mao v BT Funds Management Limited - [2021] NSWSC 644

Supreme Court

New South Wales

Medium Neutral Citation: Mao v BT Funds Management Limited [2021] NSWSC 644
Hearing dates: 2 June 2021
Date of orders: 2 June 2021
Decision date: 02 June 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [62]-[63]

Catchwords:
CIVIL PROCEDURE – interlocutory applications – where plaintiff brought a claim against insurers for total and permanent disability benefits – where plaintiff lacked capacity to conduct litigation – where NSW Trustee was appointed to act on her behalf – where NSW Trustee settled the proceedings and a notice of discontinuance was filed – where plaintiff applied to set aside the discontinuance – where plaintiff challenged the validity of the steps taken on her behalf by the NSW Trustee – where plaintiff sought an adjournment of the application to obtain funding and allow her to prosecute a constitutional matter – constitutional matter unrelated to present application – adjournment refused – NSW Trustee had power to conduct and settle the proceedings – application to set aside discontinuance dismissed with costs

Legislation Cited:
NSW Trustee and Guardian Act 2009 (NSW), ss 40, 41
Superannuation Guarantee (Administration) Act 1992 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.14, 18.1

Cases Cited:
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97

Category: Procedural rulings
Parties:
Motion filed 17 March 2021 (as amended)
Youhua Mao (Applicant/Plaintiff)
BT Fund Management Limited (First Respondent/First Defendant)
AIA Australia Limited (Second Respondent/Second Defendant)
Maurice Blackburn Pty Ltd (Third Respondent)
NSW Trustee and Guardian (Fourth Respondent)
Motion filed 2 June 2021
Youhua Mao (Plaintiff)
BT Funds Management Limited (First Respondent/First Defendant)
AIA Australia Limited (Second Respondent/Defendant)
Maurice Blackburn Pty Ltd (Third Respondent)
NSW Trustee and Guardian (Fourth Respondent)
Representation:
Motion filed 17 March 2021 (as amended)
Counsel:
M Corkhill (First and Second Respondent/Defendant)
P Batley (Third Respondent)

Solicitors:
Maurice Blackburn Pty Ltd (Third Respondent)
J McCarthy (Fourth Respondent)

Y Mao (in person)

Motion filed 2 June 2021
Counsel:
M Corkhill (First and Second Respondent/Defendant)
P Batley (Third Respondent)

Solicitors:
Maurice Blackburn (Third Respondent)
J McCarthy (Fourth Respondent)
Y Mao (in person)

File Number(s): 2013/244238
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 9 June 2021

Two years ago a notice discontinuing these proceedings was filed by solicitors acting for the NSW Trustee and Guardian ("the Trustee") purporting to act as tutor for the plaintiff. The plaintiff has now applied by way of notice of motion to reverse the discontinuance and, I assume, have the proceedings reinstated.
The proceedings arose out of a claim made by the plaintiff, Youhua Mao (also known as Margaret Mao), for total and permanent disability benefits under a life insurance policy. The policy was underwritten by the second defendant, AIA Australia Limited ("AIA"). The policy was obtained through a superannuation fund of which Ms Mao was a beneficiary. The trustee of the fund was the first defendant, BT Funds Management ("BT").

Procedural background

The…

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.

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Details

Case: [2021] NSWSC 644
Decision Date: 02 June 2021

CaseChat Overview and Summary

In the matter of Mao v BT Funds Management Limited, the plaintiff sought total and permanent disability benefits from the defendant insurers. The dispute was brought to the Federal Circuit Court of Australia, where the plaintiff's capacity to conduct the litigation was in question. As a result, the New South Wales Trustee was appointed to act on her behalf. Subsequently, the Trustee settled the proceedings and filed a notice of discontinuance. The plaintiff later applied to set aside the discontinuance and challenged the validity of the steps taken on her behalf by the Trustee. Additionally, the plaintiff sought an adjournment of the application to obtain funding and allow her to prosecute a constitutional matter, which was unrelated to the present application.

The legal issues before the court were whether the NSW Trustee had the authority to settle the proceedings and file a notice of discontinuance, and whether the plaintiff had standing to challenge these actions. The court examined the statutory framework governing the appointment of the Trustee and the powers conferred upon them in such circumstances. The court also considered the plaintiff's capacity to conduct litigation and the implications of her constitutional matter on the present application.

The court held that the NSW Trustee had the power to conduct and settle the proceedings on behalf of the plaintiff. The court found that the Trustee's actions were valid and within their authority, and that the plaintiff did not have standing to challenge these actions. The court further determined that the plaintiff's application for an adjournment was not warranted, as the constitutional matter was unrelated to the present application. Consequently, the application to set aside the discontinuance was dismissed, with the plaintiff ordered to pay costs.

No further orders were made in relation to the adjournment application or the constitutional matter. The court's decision emphasised the importance of respecting the powers of court-appointed representatives and the need for careful consideration of applications to set aside discontinuances and obtain funding.

Orders