Supreme Court New South Wales Medium Neutral Citation: Mao v BT Funds Management Limited (No 2) [2021] NSWSC 692 Hearing dates: 10 June 2021 Date of orders: 10 June 2021 Decision date: 10 June 2021 Jurisdiction: Equity Before: Parker J Decision: See [18] Catchwords: CIVIL PROCEDURE – interlocutory application – where proceedings had been stayed – where the order for a stay has been overtaken by subsequent orders of the Court – where the proceedings have been settled and a valid notice of discontinuance was filed – where plaintiff applied to lift the stay – where plaintiff also sought to pursue an unrelated constitutional matter – no utility in lifting the stay because the proceedings have been resolved – application dismissed with costs Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW), s 41 Vexatious Proceedings Act 2008 (NSW) Cases Cited: Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 4) [2016] NSWSC 722 Category: Procedural rulings Parties: Youhua Mao (Applicant/Plaintiff) BT Funds Management Limited (Respondent/Defendant) Representation: Counsel: M Corkhill (Respondent/Defendant) Solicitors: Turks Legal (Respondent/Defendant) In person: Y Mao File Number(s): 2013/244238 Publication restriction: Nil Judgment – EX TEMPORE Revised from transcript; issued 15 June 2021 1. On 2 June I heard an application filed by the plaintiff, Youhua Mao (also known as Margaret Mao), to challenge a notice of discontinuance which was filed in these proceedings. The notice was filed by solicitors acting on the instructions of the NSW Trustee and Guardian ("the Trustee"), who was acting as tutor and statutory manager for the plaintiff pursuant to an order made under the NSW Trustee and Guardian Act 2009 (NSW), s 41. I decided that the notice of discontinuance was valid and effective, and dismissed the plaintiff's notice of motion which sought to have it reversed: Mao v BT Funds Management Ltd [2021] NSWSC 644. 2. In the course of my judgment I referred to another notice of motion which had been filed by the plaintiff. That motion was returnable before the Registrar today and, because of my familiarity with the matter, I directed that it be transferred to me in the Duty List. This judgment deals with that notice of motion. It assumes familiarity with my reasons of 2 June. 3. At [25] to [28] of my judgment I set out the relief claimed in the present notice of motion. Two days ago, in advance of today's hearing, the plaintiff advised the Court that she wished to amend the notice of motion. The proposed amended form is: 1. Order that the stay order by the Court on 26 May 2016 be lifted for the hearing of the Plaintiff's application to have Justice Hallen recuse himself. 2. Order that the Plaintiff's application to have Justice Hallen recuse himself be dismissed. 3. Order that NOTICE OF DISCONTINUANCE be dismissed. 4. Directs the plaintiff send by email to the Associate to Parker J a soft copy of the Court Book no later than 4:00 p.m. Friday, 11 June 2021. 5. Order that the matter be listed for directions on the Constitutional matter pursuant to Rule 1.22 of the Uniform Civil Procedure Rules 2005 on Wednesday, 16 June 2021, or on [date to be inserted by the Court]. 6. Costs in the cause. 1. It will be seen from proposed order 3 that in its amended form, the notice of motion seeks, again, to challenge the notice of discontinuance. That is an issue which I have already determined. 2. The only new matter in the proposed notice of motion is the reference to the stay order by Hallen J made on 26 May 2016. The reasons for his Honour's order are set out in a published judgment: Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 4) [2016] NSWSC 722. That order was: Orders pursuant to s 67 of the Civil Procedure Act, that the extant applications, in the Equity Division, be stayed until such time as any party makes such application in this Division, as she, or it, wishes to make, including one for the hearing of the Plaintiff's application to have me recuse myself, or for the determination of the notice of motion for the appointment of a tutor for the Plaintiff. 1. In his judgment his Honour explained that he was faced with an application by Ms Mao to have the further conduct of the proceedings heard and determined by another Judge of the Court. It was that application, and associated procedural applications, to which His Honour referred when he referred to the "extant applications" in his order. 2. The stay granted by his Honour has been overtaken by events, in particular the order by Ward CJ in Eq in 2017 appointing the Trustee as the manager of the plaintiff's litigation, and the subsequent settlement of the proceedings and filing of a notice of discontinuance described in my earlier judgment. 3. There would be no utility in lifting the stay because the proceedings have now been resolved and no question of Hallen J or any other Judge of the Court continuing to hear the plaintiff's claim can now arise. 4. Thus, there is nothing in the notice of motion in its amended form which would justify the Court in somehow removing the notice of discontinuance from the file and reinstating the proceedings. It follows that there is no point in permitting the plaintiff to amend her notice of motion and I decline to do so. 5. This leaves the notice of motion in its original filed form. In the course of today's argument it became clear that Ms Mao's real complaint is this: she objects, in principle, to the compulsory superannuation system instituted by the Commonwealth Government in 1992. As she sees it, that system involves taking part of her salary compulsorily and contributing it to superannuation. 6. As I touched on in my earlier judgment, there are formidable substantive difficulties in the weight of that contention. More importantly, for present purposes, the complaint has nothing to do with the parties to these proceedings, nor does it have anything to do with the pleaded issues which were raised in them. 7. Ms Mao appears to believe that in some way her rights as a beneficiary under the superannuation fund of which BT is trustee stem from the Commonwealth legislative scheme. In my view, that is misconceived. Those rights are equitable rights which exist under the general law as a result of the assumption by BT of obligations as trustee for the beneficiaries of the fund under the trust deed. 8. The statutory scheme operates at a different level, by requiring employers to make contributions to superannuation funds, the receipt of which then gives rise to rights on the part of those beneficiaries. A successful challenge to the scheme would, so far as I can see, have no impact whatever on the legal entitlements which exist under the superannuation fund, and still less under an insurance policy effected by BT for the benefit of Ms Mao. 9. I repeatedly explained this to Ms Mao but she refused to accept it. In the circumstances, I have no alternative but to dismiss Ms Mao's notice of motion. 10. In the course of the hearing, counsel for the defendants suggested that I should make an order under the Vexatious Proceedings Act 2008 (NSW) preventing Ms Mao from bringing future litigation about the issues that she has raised. I am not prepared to do that without proper notice being given to Ms Mao. 11. However, I believe that I can give appropriate procedural directions to ensure that the decision which I have now made twice, that the proceedings have been discontinued and cannot be pursued any further, should be respected. I propose to direct that the file be marked as "Closed" with a notation that no further process should be accepted for filing on the file without the prior leave of the Court. 12. The costs of this application must also follow the event and, accordingly, I will order that Ms Mao pay the defendant's costs of the motion. 13. The orders of the Court on the notice of motion filed 18 May 2021 are: 1. Order that the motion be dismissed. 2. Order that the plaintiff pay the defendant's costs of the motion. 3. Direct that the file be marked as "Closed" and that no further process may be filed by the plaintiff on the file without the prior leave of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2021