Mao v AMP Superannuation Ltd [2015] NSWCA 252

Mao v AMP Superannuation Ltd [2015] NSWCA 252

The Court of Appeal held that the summons for leave to appeal may have been incompetent because, if r 7.14 applied, Ms Mao had no capacity to commence or carry on the appeal without a tutor. However, that situation arose from the defective tutor application, because the motion sought appointment of a tutor without nominating a proposed tutor and without evidence of that person's consent as required by r 7.18(5). The Court therefore dispensed with compliance with r 7.14 for the appeal, granted leave, dispensed with filing a notice of appeal, and set aside the orders that purported to appoint a tutor and directed the AMP Parties to continue attempts to nominate one. The issue whether a...

Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Orders in Supreme Court of New South Wales Equity Division Proceedings Concerning Appointment of a Tutor for a Person Alleged to Be Under Legal Incapacity / Court of Appeal Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal allowed in part; orders (i) and (ii) made on 18 December 2014 set aside; question whether to appoint a tutor remitted to the Equity Division; appeal otherwise dismissed; respondents ordered to pay the applicant's costs of the summons seeking leave to appeal and of the appeal.
Legal Topics
['tutors' 'persons Under Legal Incapacity' 'commencement and Carrying on Proceedings' 'dispensing With Compliance With Rules of Court' 'interlocutory Appeal' 'recusal']
['civil Procedure' 'appellate Procedure'] ['tutors' 'persons Under Legal Incapacity' 'commencement and Carrying on Proceedings' 'dispensing With Compliance With Rules of Court' 'interlocutory Appeal' 'recusal']

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Orders in Supreme Court of New South Wales Equity Division Proceedings Concerning Appointment of a Tutor for a Person Alleged to Be Under Legal Incapacity / Court of Appeal Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) prevented Ms Mao from commencing and carrying on the application for leave to appeal and appeal without a tutor.' 'Whether orders purporting to appoint a tutor without naming a person as tutor and without evidence that a proposed tutor consented to appointment were regular under Pt 7 Div 4 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether leave to appeal should be granted from the interlocutory orders made on 18 December 2014.' "Whether the primary judge's orders that a tutor be appointed and that the AMP Parties continue to attempt to nominate a tutor should be set aside." 'Whether Emmett JA should recuse himself from sitting on the application for leave to appeal and any appeal.']

Ratio Decidendi

The Court of Appeal held that the summons for leave to appeal may have been incompetent because, if r 7.14 applied, Ms Mao had no capacity to commence or carry on the appeal without a tutor. However, that situation arose from the defective tutor application, because the motion sought appointment of a tutor without nominating a proposed tutor and without evidence of that person's consent as required by r 7.18(5). The Court therefore dispensed with compliance with r 7.14 for the appeal, granted leave, dispensed with filing a notice of appeal, and set aside the orders that purported to appoint a tutor and directed the AMP Parties to continue attempts to nominate one. The issue whether a...

Court Disposition

Leave to appeal granted; appeal allowed in part; orders (i) and (ii) made on 18 December 2014 set aside; question whether to appoint a tutor remitted to the Equity Division; appeal otherwise dismissed; respondents ordered to pay the applicant's costs of the summons seeking leave to appeal and of the appeal.

Orders

  • ['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.' 'Leave to appeal be granted.' 'The requirement for the filing of a notice of appeal be dispensed...