Mao v BT Funds Management Limited [2021] NSWSC 644

Mao v BT Funds Management Limited [2021] NSWSC 644

The adjournment was refused because the proposed constitutional challenge was unrelated to the 17 March motion and was beset with substantive and procedural difficulties. The application to set aside the discontinuance failed because the Chief Judge's management orders gave the NSW Trustee and Guardian full power over the plaintiff's legal causes of action, including power to conduct and settle the proceedings; the settlement had been approved, the claims had been compromised and the settlement payment made, so there was no basis to invalidate the discontinuance or related steps.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Civil Procedure Interlocutory Applications in Equity Proceedings Arising From a Claim for Total and Permanent Disability Benefits Under a Life Insurance Policy Obtained Through a Superannuation Fund / Hearing of the Plaintiff's Motion to Set Aside a Notice of Discontinuance and Related Steps, and Motion for an Adjournment
Outcome
Both the notice of motion filed 17 March 2021, as amended, and the notice of motion filed 2 June 2021 were dismissed with costs.
Legal Topics
['legal Incapacity to Conduct Litigation' 'tutor' 'nsw Trustee and Guardian Management Order' 'notice of Discontinuance' 'settlement of Proceedings' 'adjournment Application' 'constitutional Matter' 'costs']
['civil Procedure' 'equity' 'protective Jurisdiction' 'superannuation' 'insurance'] ['legal Incapacity to Conduct Litigation' 'tutor' 'nsw Trustee and Guardian Management Order' 'notice of Discontinuance' 'settlement of Proceedings' 'adjournment Application' 'constitutional Matter' 'costs']

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Procedural Posture

Civil Procedure Interlocutory Applications in Equity Proceedings Arising From a Claim for Total and Permanent Disability Benefits Under a Life Insurance Policy Obtained Through a Superannuation Fund / Hearing of the Plaintiff's Motion to Set Aside a Notice of Discontinuance and Related Steps, and Motion for an Adjournment

Legal Issues

  1. 1 ['Whether the hearing should be adjourned to allow the plaintiff to obtain funding and pursue a constitutional matter concerning Commonwealth superannuation legislation.' 'Whether the notice of discontinuance filed on behalf of the plaintiff should be declared void and of no effect.' "Whether the NSW Trustee and Guardian and Maurice Blackburn had authority to take steps on the plaintiff's behalf, including appointment of solicitor, costs agreement, settlement and discontinuance." 'Whether cross-examination of Mr Parish should be permitted on the motion.' 'Whether costs should be ordered against the applicant.']

Ratio Decidendi

The adjournment was refused because the proposed constitutional challenge was unrelated to the 17 March motion and was beset with substantive and procedural difficulties. The application to set aside the discontinuance failed because the Chief Judge's management orders gave the NSW Trustee and Guardian full power over the plaintiff's legal causes of action, including power to conduct and settle the proceedings; the settlement had been approved, the claims had been compromised and the settlement payment made, so there was no basis to invalidate the discontinuance or related steps.

Court Disposition

Both the notice of motion filed 17 March 2021, as amended, and the notice of motion filed 2 June 2021 were dismissed with costs.

Orders

  • ['On the notice of motion filed 17 March 2021, as amended: Order that the motion be dismissed.' 'On the notice of motion filed 17 March 2021, as amended: Order that the applicant pay the costs of Maurice Blackburn Pty Ltd and the NSW Trustee and Guardian of the motion.' 'On the notice of motion filed 2 June 2021:...