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  • The Court of Appeal recently considered the construction of a contract of life insurance.
  • The Court examined the Trustee’s duties, in particular a trustee’s statutory duties, and confirmed that construction of the policy is to be approached objectively.
  • The Court accepted that commercially sophisticated and well-advised parties in the same position would have been well aware of the scope of the Trustee’s duties.

In Resolution Life Australasia Ltd v N. M. Superannuation Pty Ltd [2023] NSWCA 138 (22 June 2023), the Court of Appeal of the Supreme Court of New South Wales issued a unanimous decision regarding the proper construction of a contract of life insurance.

The issue on appeal was whether, as a matter of construction, the policy contained a ‘separate promise’ by the Trustee that premiums would be paid in relation to each member until his or her cover ceased.

Meagher JA made several observations about the text, context, legislative context and purpose of the policy. His Honour also observed the promise which the appellant sought to imply could not be enforced in debt or damages or by specific performance, in view of the content of the other relevant express terms of the policy.


Resolution Life Australasia Ltd was a life insurer (‘Insurer’) and N. M. Superannuation Pty Ltd (the ‘Trustee’) was the trustee of the AMP Super Fund (‘Fund’).

The Fund was a ‘regulated superannuation fund’ within the meaning of s 19 of the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SIS Act’).

The Trustee arranged life insurance for Fund members. Approximately 274,000 Fund members (the ‘Master Trust Portfolio’) held the benefit of life insurance under nine  contracts of life insurance issued by the Insurer to the Trustee.

The proceeding related to four of those contracts (‘Contracts’). The Contracts had been issued between 1991 and 2004, and generated an estimated annual premium to the Insurer of approximately $265 million.

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