Steer v AMP Life Limited & AMP Superannuation Ltd - [2021] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STEER v AMP LIFE LIMITED & AMP SUPERANNUATION LTD
[2021] SADC 109
Judgment of his Honour Judge Burnett
8 October 2021
INSURANCE - LIFE INSURANCE - CLAIMS AND PAYMENT
INSURANCE - LIFE INSURANCE - SURRENDER
SUPERANNUATION - INDUSTRY SUPERVISION - GOVERNING RULES
SUPERANNUATION - PRIVATE SECTOR FUNDS - TRUSTEES - POWERS AND DUTIES
The applicant is the executor of the estate of the late Carolyn Christina Burns (the Deceased). The Deceased was a member of the superannuation fund known as the AMP Retirement Trust. The second respondent, AMP Superannuation Limited (AMP Super) was the trustee of that Fund. AMP Super, as trustee of the Fund, entered into various group insurance policies, including a group life insurance policy with the first respondent, AMP Life Limited (AMP Life). Under the life insurance policy, the Deceased was entitled to certain life insurance benefits. As at 30 June 2019, the value of the life insurance benefits of the Deceased was in the sum of $259,720.90.
The Deceased was a member of the Fund through her previous employment at the Workers Employment Association of South Australia (WEA). Part of the benefits she received as a member of the Fund were the life insurance benefits. The Deceased ceased working with the WEA in 2014.
In the period between 2014 to 2019, the Deceased’s life insurance benefits were maintained and premiums were deducted from her superannuation account by AMP Super and paid to AMP Life. The Deceased ceased making contributions to her superannuation account.
In March 2019, new legislation was introduced, the Treasury Laws Amendment Act (Protecting Your Superannuation Package) 2019 (TLAA). The TLAA introduced a new s 68AAA of the Superannuation Industry (Supervision) Act (the SIS Act) which provided under subsection (1) that a trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to a member by taking out or maintaining insurance if the member’s account had been inactive for 16 months and the member had not elected for the benefit to be maintained. Section 68AAA(2) provided that the trustee must ensure that the inactive member may elect in writing that the benefit is to be provided.
A further requirement was imposed by part of the TLAA which did not become part of the SIS Act. Item 3, sub-item 4, of Part 2 of Schedule 2 of the TLAA required the trustee, in respect of inactive accounts, to send a notice in writing to such members before 1 May 2019 stating that on and after 1 July 2019 a benefit will not be provided to the member by the taking out or maintaining insurance if the account was inactive and the member had not elected that the benefit will be provided, even though the account was inactive.
The Deceased’s account with AMP Super was inactive at all relevant times in 2019 within the meaning of s 68AAA of the SIS Act and the TLAA as it had been inactive since 2014 (and therefore more than the required period of 16 months). AMP Super, in purported compliance with s 68AAA and the TLAA sent emails to the Deceased on 18 April 2019 and 4 June 2019 in which it advised the Deceased about the new legislation and her right to make an election. A third email was sent to the Deceased dated 7 July 2019 and advised her that that the policy had been cancelled. AMP Super cancelled or surrendered the life insurance benefits of the Deceased on 1 July 2019 on the basis that it was not able to provide the life insurance benefits to the Deceased after that date because of s 68AAA of the SIS Act. All of the above emails were sent to an email address of the Deceased at the WEA which the Deceased had not accessed since 2014. The Deceased did not receive the emails and therefore did not make an election to maintain the life insurance benefits. The Deceased’s health deteriorated and on 16 October 2019 she died. Shortly before the death of the Deceased, AMP Super sent a letter to the Deceased on 10 October 2019 advising that it had not received an election from the Deceased and would contact her before cancelling the life insurance benefits.
The applicant, as the executor for the Estate, made a claim on the policy but AMP Life refused to pay on the ground that the life insurance policy had been cancelled or surrendered prior to the death of the Deceased. The applicant contended that AMP Super failed to comply with the provisions of s 68AAA of the SIS Act and the TLAA by sending the emails to the wrong address. The applicant contended that the cancellation of the life insurance benefits of the Deceased was invalid and of no effect and therefore AMP Life was obliged to provide the life insurance benefits to the Deceased. Further, the applicant submits that the conduct of the AMP Life and AMP Super was in breach of various duties that they owed to the Deceased.
Held:
(1) AMP Life and AMP Super did not engage in misleading or deceptive conduct contrary to ss 1041E and 1041H of the Corporations Act or ss 12DA and12DB of the Australian Securities and Investments Commission Act (ASIC Act) in relation to the sending of the letter on 10 October 2019 as that letter did not come to the attention of the Deceased and therefore was not relied upon by the Deceased. The sending of the letter, although misleading, did not cause any loss to the Deceased.
(2)     AMP Life was not required to respond to the claim by the applicant under the Life Insurance Policy as AMP Super had cancelled or surrendered the life insurance benefits of the Deceased.
(3) AMP Life was therefore not required to comply with the requirements of s 210(5) of the Life Insurance Act or s 59 of the Insurance Contracts Act as it did not cancel the life insurance benefit for non-payment of a premium or for any other reason. It was AMP Super who cancelled the life insurance benefits.
(4) AMP Super was not a life insurer within the meaning of Life Insurance Act or the insurer within the meaning of the Insurance Contracts Act. There was no evidence of a contract of insurance between the AMP Super, as trustee of the Fund and the Deceased. The only relevant evidence was the Amending Deed and that did not provide any evidence of AMP Super undertaking the role of an insurer. In fact, it evidenced AMP Life as undertaking the role of life insurer: United Super Pty Ltd v Built Environs Pty Ltd [2001] SASC 339 distinguished; Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245 followed.
(5)     AMP Super therefore did not owe a duty of the utmost good faith to the Deceased.
(6)     AMP Super had mistakenly paid premiums to AMP Life in respect of the other insurance benefits for Temporary and Permanent Disability and Temporary Salary Continuance that had previously been held by the Deceased but had been terminated some years previously. These mistaken payments gave rise to claim in restitution by AMP Super to recover, on behalf of the superannuation account of the Deceased, the amounts of these payments. The mistaken payments could not be allocated against the premiums due under the life insurance benefits such that they represented an overpayment of those premiums.
(7) AMP Life owed a duty of the utmost good faith towards the applicant pursuant to ss 11(1) and 13(3) the Insurance Contracts Act and at common law. AMP Life did not breach that duty as it did not cancel the life insurance benefits of the Deceased. It was AMP Super who cancelled those benefits. Further, it was AMP Super who was under a duty to notify the Deceased of its right to elect under s 68AAA of the SIS Act and the TLAA. It was the actions of AMP Super which deprived the Deceased of that right. The contract of insurance had been cancelled by AMP Super and therefore there could not be any breach of duty by AMP Life in not accepting the claim of the applicant.
(8) AMP Super breached its duties to act in the best interests of the Deceased contrary to s 52(2)(c) of the SIS Act in that it did not give notice to the Deceased of the proposed cancellation of the life insurance benefits. The WEA email address was not used by the Deceased and emails sent to that address did not come to the attention of the Deceased. Under s 68AAA of the SIS Act, AMP Super was required to ensure that Deceased was given the right to elect for the insurance benefits to continue to be paid. By not providing the Deceased with notice, AMP Super did not ensure that the Deceased was given the right to elect to maintain the payments and the Deceased lost the right of election. Further, AMP Super did not pursuant to item 3 of Part 2 of schedule 2 of the TLAA give the required notice of election to the Deceased. The Deceased did not give express or inferred consent pursuant to s 9(1) of the Electronic Transactions Act for the receipt of communications from AMP Super by email: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 and Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 distinguished. By not giving notice and thereby not giving the Deceased the right to elect and then cancelling or surrendering the life insurance benefits, AMP Super did not act in the best interests of the Deceased.
(9) AMP Life and AMP Super did not engage in unconscionable conduct within the meaning of s 991 of the Corporations Act or s 12CB of the ASIC Act. There was no conduct of AMP Life or AMP Super that was so far outside the societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that was offensive to conscience: Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 applied.
(10)     The Deceased lost the opportunity to elect to maintain the life insurance benefits by agreeing to the continued payment of the life insurance premiums from her superannuation account with AMP Super to AMP Life. If she had been given notice of the election, the Deceased would have elected to maintain the life insurance benefits by the payment of the premiums.
(11)     The applicant is entitled to judgment against AMP Super in the sum of $259,720.97 before costs and interest.
(12)     The claim by the applicant against the AMP Life is dismissed.
Treasury Treasury Laws Amendment Act (Protecting Your Superannuation Package) 2019 (Cth) sched 2; Superannuation Industry (Supervision) Act 1993 (Cth) s 52(2)(c), 68AAA; Corporations Act 2001 (Cth) s 763, 766, 991, 1041E, 1041H; Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12DA, 12 DB; Life Insurance Act 1995 (Cth) s 59, 210(5); Insurance Contracts Act 1984 (Cth) s 11, 13, 14, 59, 63, 210; Electronic Transactions Act 2000 (SA) s 7A, 9(1), referred to.
Pitt v Commissioner for Consumer Affairs [2021] SASCA 24, applied.
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 ; Hossam v Minister for Immigration and Border Protection [2016] FCA 1161, distinguished.
Erzurumlu v Kellogg Superannuation [2013] NSWSC 1115; Verinder v Australian Institute of Steel Construction [2003] NSWSC 975; (2004) 13 ANZ Ins Cas 61-589; McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197; CE Heath Casualty & General Insurance Ltd v Grey (1993) 32 NSWLR 25; Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214 at [70]; (2005) 13 ANZ Ins Cas 90-123; United Super Pty Ltd v Built Environs Pty Ltd [2001] SASC 339; Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245; Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; (1960-61) 105 CLR 602; Caboche v Ramsey [1993] FCA 611; (1993) 119 ALR 215; Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548; The Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd [1974] HCA 3; (1974) 130 CLR 1; The Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945; Dumitrov v SC Johnson & Son Superannuation Pty Ltd [2006] NSWSC 1372; Ziogos v FSS Trustee Corporation as trustee of the First State Superannuation Fund [2015] NSWSC 1385; (2016) 19 Ins Cas 62-094; CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36; (2007) 235 CLR 1; Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204; Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Pty Ltd [2006] VSC 112; (2006) 15 VR 87; Commonwealth of Australia v Smith [2005] NSWCA 478; Hopcroft & Edwards v Edmunds [2013] SASCFC 38; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86; Talacko v Talacko [2021] HCA 15, considered.

STEER v AMP LIFE LIMITED & AMP SUPERANNUATION LTD
[2021] SADC 109
Civil
Introduction

The applicant is the executor of the estate of the late Carolyn Christina Burns, deceased (the Deceased). The Deceased was a member of the superannuation fund known as the AMP Retirement Trust (the Fund) of which the second respondent, AMP Superannuation Ltd (AMP Super) is and was the trustee. AMP Flexible Super is a product of that Trust. AMP Super, as trustee of the AMP Retirement Trust, entered into various group insurance policies including relevantly a group life insurance, with the first respondent, AMP Life Limited (AMP Life). That policy was known as the AMP Flexible Lifetime Super (Personal Investment and Risk) and AMP Flexible Super (Employee and Personal Risk Only) (the Life Insurance Policy). Under the Life Insurance Policy, the Deceased was entitled to certain life insurance benefits (the life insurance benefits). It is not disputed that as at 30 June 2019 that the life insurance benefits included a payment of $259,720.97 in the event of the death of the Deceased. What is in dispute, is whether after that date AMP Life remained liable under the Life Insurance Policy to make that payment or, if not, whether AMP Life or AMP Super are liable for the loss of that benefit.
The Deceased was a member of the Fund through her previous employment at the Workers Employment Association of South Australia (WEA). Contributions were made through her employment. Part of the benefits that she received as a member of the Fund included the life insurance benefits. The employment of the Deceased with WEA ceased in April 2014. The premiums in respect of the benefits that she was entitled to receive under the Life Insurance Policy were paid from the balance in her account held by her in the Fund.
In March 2019, new legislation was introduced, the Treasury Laws Amendment Act (Protecting Your Superannuation Package Act) 2019, (Cth) (the TLAA). The TLAA inter alia, amended the Superannuation Industry (Supervision) Act 1993 (Cth) and inserted s 68AAA into that Act. Section 68AAA provided that the trustee of a superannuation fund that offered a product under which a benefit may be provided to a member by taking out or maintaining insurance, must ensure that the benefit is not provided in respect of a member’s account in a superannuation fund that had been inactive for a continuous period of at least 16 months and where the member had not elected that the benefit provided under the insurance policy was to be maintained. That provision came into effect on 1 July 2019.
AMP Super, in reliance upon this provision, ceased to provide premiums from the Fund to AMP Life in respect of the life insurance benefits of the Deceased that were provided through the Policy. AMP Super cancelled or surrendered the right of the Deceased to obtain the life insurance benefits under the Policy on 1 July 2019. The Deceased died on 16 October 2019.
AMP Life has refused to pay the life insurance benefits to the estate of the Deceased on the ground that the Deceased’s entitlement to those benefits under the Policy had been cancelled or surrendered prior to her death. The applicant has claimed that the Deceased was not given proper notice under the TLAA of her right to elect to maintain the benefits and therefore the cancellation or surrender of the benefits was either of no effect or the Life Insurance Policy was liable to be reinstated. The applicant claims:
(1)That AMP Life and AMP Super engaged in misleading and deceptive conduct contrary to ss 1041E and 1041H of the Corporations Act, 2001 (Cth) and sections 12DA and 12DB of the Australian Securities and Investments Commission Act, 2001 (Cth) (ASIC Act) regarding the sending of a letter dated 10 October 2019 (the 10 October letter);
(2)AMP Life breached its duty to act in the utmost good faith towards the applicant pursuant to sections 13 and 14 of the Insurance Contracts Act 1984, (Cth) (ICA) and the unwritten law regarding the sending of the 10 October letter;
(3)AMP Super breached its duty to act in the best interests of the deceased and the applicant contrary to section 52(2)(c) of the Superannuation Industry Supervision Act, 1993 (Cth) (the SIS Act) regarding the sending of the 10 October letter) and further breached s 52(7) of the SIS Act;
(4)AMP Life breached the terms of the Life Insurance Policy by cancelling the life insurance benefits held under the Policy without sending the Deceased proper notice;
(5)AMP Life and AMP Super breached their duties under s 210 of the Life Insurance Act, 1995 (Cth) (LIA) and s 59(3) of the ICA and the duty to act in the utmost good faith by cancelling the life insurance benefits under the Policy without sending the Deceased proper notice;
(6)AMP Life and AMP Super breached their duties to act in the utmost good faith to the Deceased and breached their duty to act in the best interests of the Deceased and were negligent and failed to give notice or effective notice of their intention to terminate or their termination of the life insurance benefits under the Policy or what the Deceased needed to do to reinstate the policy;
(7) AMP Life and AMP Super breached their duties by wrongly deducting premiums for other policies and not allocating those premiums to the premiums due in respect of the life insurance benefits that were provided under the Life Insurance Policy;
(8)AMP Life and AMP Super acted in breach of their duty to act in the utmost good faith and in the best interests of the deceased in 14 different ways in relation to the way in which the life insurance benefits under the Policy were cancelled, the claim was refused and notice not provided in accordance with the LIA and TLAA and SIS Acts;
(9)AMP Life and AMP Super engaged in unconscionable conduct within the meaning of s 991A of the Corporations Act and section 12CB of the ASIC Act in refusing to make the payment of the life insurance benefits under the Life Insurance Policy.
Course of the trial
The dispute was primarily documentary in nature. Two volumes of documents were tendered, generally by consent. Some additional documents were also tendered.
Three witnesses were called. Each of these witnesses gave evidence about some background matters that assisted in placing the claims and the documentary evidence in context. None of the evidence of these witnesses was controversial or determinative. None of the witnesses were challenged in a serious way by the other side. I have no hesitation in accepting the evidence of each of the witnesses.
The applicant, Mr Steer, gave evidence. He is the executor of the estate of the Deceased, who was his sister. He gave evidence about her residence at Morphett Road, Morphettville, her health and her ultimate hospitalisation. He gave evidence that the Deceased did not own a computer and that she received a small number of emails on her iPhone. He said that he examined her iPhone after her death and there were about 10 emails on the phone, none of which were from AMP. He gave evidence that these were spam emails and that the Deceased did not use emails to communicate and used the phone only for calls or texting.

The applicant also called Ms Lofts to give evidence. She was the step-daughter of the applicant. She knew the Deceased. Ms Lofts gave evidence about the problems that the Deceased experienced with her iPhone in 2019 and the attempts to fix the phone. She gave evidence that during this period emails were not working on the phone. She said that the Deceased used the phone mainly for phone calls and text messages.
The respondents called one witness, Mr Roveto, who, since 2017, has been the head of customer communications at AMP. He had also previously held that position. He gave evidence about the templates that were created for other departments within AMP for communications to members and customers and the addresses including, if applicable, electronic addresses to which these communications were to be sent. He also gave evidence about the records of AMP which detailed, for each customer, what document was sent, when it was sent, the method by which it was sent and if it was returned. Mr Roveto gave evidence that the letters to the Deceased dated 18 April 2019 and 4 June 2019 were sent by email and that the email address was part of the data he received from Salesforce, which was the customer relationship management system of AMP. No one was called from Salesforce. Mr Roveto accepted in cross-examination that there had been no communication from the Deceased that she wished to receive or consented to receiving communications by email.
Background facts
It is necessary to examine in some detail the communications between the Deceased and AMP Life and AMP Super. I make the findings set out below.
The Deceased died on 16 October 2019 at the age of 54. Probate was granted to the applicant on 24 January 2020. Prior to her death, the Deceased went into hospital on 27 September 2019. She did not leave the hospital.
The Deceased had many health issues throughout her life. She was born with spina bifida and was wheelchair bound her whole life. From about 2014, her health began to deteriorate and her mobility became increasingly restricted. By 2019, her health was very poor.
The Deceased lived at 1/109 Morphett Road, Morphettville. She did not possess a computer, but did have an iPhone. The applicant gave evidence, which I accept, that there were about 10 emails on her iPhone, none of which were from AMP Life or AMP Super. The emails were from travel agents or spam. Her email address was [email protected] which she commenced using in about 2016 or 2017.
The Deceased was a member of the AMP Retirement Trust of which AMP Super was the trustee. AMP Flexible Super was a product of that Trust. AMP Super entered into a group insurance policy with AMP Life. That policy included the Life Insurance Policy. The policy entered into between AMP Life and AMP Super was described as the AMP CustomerSuper Group Policy, Flexible Lifetime-Super (personal) Policy and AMP Flexible Super (risk) Superannuation Policy and provided for a range of other policies in addition to the Life Insurance Policy. An earlier claim made by the Deceased in respect of benefits that she held under that policy in respect of Temporary Salary Continuance Benefits and Total and Permanent Disability was settled.
The Deceased became a member of AMP Flexible Super through her then employment at WEA. The Deceased was dismissed from her employment at the WEA in about May 2014. The annual statements sent by AMP Super record that the Deceased became a member of AMP Flexible Super on 15 October 2012, although that may have been a rollover from another fund.
Each year for the years ending 30 June 2014 - 30 June 2019 (inclusive), AMP Super sent to the Deceased by post to her residence at 1/109 Morphett Road, Morphettville an annual statement recording her account balance and her death cover. Her account for the year ending 30 June 2014 shows regular contributions to her superannuation account being made by her employer, WEA. The annual statements for the account show premiums being paid from the account of the Deceased for, inter alia, her life insurance benefits. The annual statements in later years show no contributions being made to the account other than government tax credits but continued to show debits from that account to pay for her premiums for the life insurance benefits.
An examination of the records of AMP Super show that up to 2016 almost all communications between AMP Super and the Deceased were by post. After 2016, almost all communications were sent by email, except for the annual statements which continued to be sent by post. At no time had the Deceased communicated with AMP Super by email.
On 15 May 2014, a letter was sent by AMP Super to the Deceased by post to her home address at 1/109 Morphett Road, Morphettville in which AMP referred to the Deceased ceasing work for WEA and requested her to advise them if her contact details had changed. The letter stated that the Deceased could update her personal details by going onto the website or by contacting them.
On 6 July 2016, AMP Super sent a notice to all members, including the Deceased, that it was transitioning to electronic communications and to set up an AMP app. The letter stated that if the member preferred, they could continue to receive communications by post. In fact, in the case of the Deceased, usually the only communication that she received was the annual statement and that continued to be sent by post.
As a result of the enactment of the TLAA, AMP Super issued a product disclosure statement in which they advised members that from 1 July 2019 they were required by law to cease providing the insurance benefit in super accounts if no contributions or rollovers had been received into the account for a continuous period of 16 months, unless the member had told them that they wanted to keep their insurance. The disclosure statement went on to state that if the member did not make the election (and the account was inactive), the insurance cover would be cancelled.
AMP also sent a number of emails to the Deceased about the proposed changes in legislation. It appears that these emails were sent on behalf of AMP Super, although I cannot be certain of that as the letter simply states “AMP”.
Unfortunately, the emails were sent to the Deceased at her WEA email address, [email protected] (the WEA email address) and she did not receive them. It is not clear on the evidence as to how AMP came to use that address or what consent, if any, had been given by the Deceased for AMP to use that email address in communications with her. Counsel for AMP Life and AMP Super properly acknowledged that there was no evidence as to how AMP Super came to have the WEA email address and whether it had been provided by the Deceased or WEA or in some other way.
The first email was sent by AMP on 18 April 2019 to the Deceased at her WEA email address. That email advised that as a result of the recent legislation, superannuation providers were required to cancel insurance inside super once the account had been inactive for a continuous period of 16 months unless the member notified the trustee that she wished to maintain the insurance benefits. That advice was incorrect in that superannuation providers were required, in the case of inactive accounts, to cease making payments of premiums for insurance unless they received notification that the member wanted the premiums to continue to be paid. The email also advised that the life insurance benefits (or death cover as it was called) of the Deceased were in the sum of $259,720.97. The email was expressed to have been sent by AMP Super.
A further email was sent by AMP on 4 June 2019, again to the WEA address. That email recorded that the insurance benefits would cease to be provided on 1 July 2019 if the account remained inactive, unless the Deceased advised that she wanted to keep the insurance inside the superannuation account.
Haysman Financial Services, who were authorised representatives of AMP Financial Planning Pty Limited, also sent emails to the Deceased (and other members of AMP Super) on 13 May 2019 and 25 June 2019 about the proposed legislative changes, but again they were sent to the WEA email address. These emails advised that the Deceased must act before 1 July 2019 if she wished to keep her insurance benefit, otherwise it would be cancelled on 1 July 2019.
A further email was sent by AMP on 7 July 2019, again to the WEA email address which advised that AMP had cancelled the insurance cover as from 1 July 2019 because (1) AMP had not received any request to keep the insurance and (2) there had been no contributions or rollovers into the account for at least 16 months.
I find that none of the above emails were received by the Deceased. The emails were not sent to the Deceased’s email address. I accept that AMP did not receive any bounce backs from WEA after sending the email. However, there is no evidence that they were forwarded on by WEA or received by the Deceased. In fact, the records from the Deceased’s iPhone suggest that the emails had not been forwarded on. Further, when the Deceased left the employ of WEA, she did not have an email account on her iPhone. There was no email address which she could have advised WEA to continue to forward emails.
AMP Life and AMP Super submitted that in essence, the life insurance benefits held by the Deceased under the Policy had been surrendered by AMP Super, rather than cancelled. That is contrary to the terminology used by AMP in its correspondence. I do not consider the labels “cancellation” or “surrender” to be determative: what is important and does not appear to be in dispute, is that it was an act of AMP Super that terminated the life insurance benefits.
On 6 August 2019, AMP sent a letter to the Deceased by post to her address at 1/109 Morphett Road, Morphettville in which they said that the Australian Taxation Office had given them new contact details for the Deceased which they wished to confirm. Following the receipt of the letter, the Deceased rang AMP. A transcript of that telephone call was tendered. That transcript recorded that the Deceased said that she had got a letter (the 6 August letter) which said that her details with the ATO did not match up. The AMP operator asked to check her mobile and also her email address. The Deceased gave the email address of [email protected], but said that the email was not currently working. The Deceased also updated her mobile telephone number. The AMP operator stated that the Deceased might need to speak to her planner about adding insurances to the policy because she did not have any insurances. The AMP operator further said that she had insurances up to 1 July and that the letters might have been going to the wrong email address. The Deceased asked the operator to put everything in the post so that she could have a look at it when it arrived. When asked if she wanted to reinstate any of the cover she had, the Deceased said no, she wasn’t in the position at the moment to be speaking to anybody about things like that.
The above conversation took place a couple of months before the Deceased died and at a time when her health was failing. It is apparent that the Deceased did not have any understanding of the emails that had been sent or what insurance was cancelled and why. It was clear that the Deceased wanted anything relevant to be sent by post for her consideration.
As a consequence of that telephone call an email was sent by a Ms Judy Strapps of Haysman Financial Services to the Deceased at her BigPond email address on 20 September 2019 enclosing her Portfolio Report. That Portfolio shows the payment of death cover premiums of $51.40 each month over the previous 12 months. The monthly premium of $51.40 accords with the total premium paid for death cover of $616.80 in the account statement for the year ending 30 June 2019.
On 10 October 2019, AMP sent a letter to the Deceased by post to her address at 1/109 Morphett Road, Morphettville in which they advised her that from 1 July 2019, as they had not received any contributions from her for 16 months, unless they received notification from the Deceased that she wanted to keep her insurance, they must cancel the insurance. The letter is expressed to have been written by AMP, but any advice in the document is said to come from AMP Super. The letter went on to state that before they cancelled the insurance, they would send a notice to her as to what she needed to do to keep her cover. That part of the letter was clearly misleading as the insurance cover had already been cancelled. However, I find that the Deceased did not ever receive that letter as she died 6 days later and had been in hospital since 27 September 2019. There is no evidence that the letter was brought to the attention of the Deceased.
Subsequent communications between AMP and the lawyers for the applicant confirm that AMP’s position was that the life insurance benefits had been cancelled on 1 July 2019 and the date of death was after that cancellation. AMP also confirmed that it sent the three emails to the WEA email address of the Deceased on 18 April 2019, 4 June 2019 and 7 July 2019 (the disputed emails).
The Life Insurance Policy
The Amending Deed was entered into between AMP Life and AMP Super as the trustee for the AMP Superannuation Savings Trust and, relevantly, the AMP Retirement Trust. The Amending Deed also records that AMP Life will provide, inter alia life insurance benefits in the way of a lump sum if the member dies. The Amending Deed sets out the benefits that AMP Life agrees to pay to AMP Super in respect of members of the Fund. Premiums for the cover were to be deducted from the member’s interest in the Fund.
The Produce Disclosure Statement of AMP Flexible Super records inter alia that insurance cover, including death cover, can be operated through super and that premiums for such cover will be deducted from the account at the beginning of each month.
Legal relationship between AMP Life, AMP Super and a member (the Deceased)
The tri-parte legal relationship between AMP Life, AMP Super and the Deceased as a member of the Superannuation Fund means that the duties and obligations owed by the respective parties and the remedies available to a party such as the Deceased are not straightforward.
The contractual relationship is between AMP Life and AMP Super. AMP Super is the policy owner.[1] The member, the Deceased in these proceedings, is not a party to the policy of life insurance. The life insured is the life of the member.
[1] Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, I Enright, P Mann, R Merkin QC, S Traves and G Pynt Group Life Insurance, Background Paper 28 at [2.1]-[2.4].
The trustee, AMP Super, owes duties to the member to act in the best interests of the member under the SIS Act and at general law. A trustee has duties in equity to act in the best interests of beneficiaries. The trustee of a superannuation fund has further duties imposed under the SIS Act. Section 52 of the SIS Act provides:
(1)     If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.
Note: There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant.
General covenants
(2)    The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) –(b)…
(c) to perform the trustee's duties and exercise the trustee's powers in the best financial interests of the beneficiaries;
(d)-(j)…
(3)-6)…
Insurance covenants
(7)    The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a)   to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters:
(i) the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries;
(ii) the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries;
(iii) the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity;
(iv) the method by which the insurer is, or the insurers are, to be determined;
(b)   to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level;
(c) to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries;
(d)   to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success.
Covenants relating to risk
(8) …
The applicant in his statement of claim relies upon s 52(2)(c), incorrectly pleaded as section 52(1)(c), and s 52(7) of the SIS Act and the duty of AMP Super to act in the best interests of the deceased.
As the policy owner, AMP Super is the party that enters into the contract with the life insurer, AMP Life, for the life cover. AMP Super pays the premiums due under the Policy, but deducts the member’s share of the premium from his or her superannuation account.[2]
[2] Ibid at [2.7].
As the life insured, the Deceased has rights against AMP Life as the life insurer, as well as AMP Super as the trustee.[3] In Erzurumlu v Kellogg Superannuation, the Court held:
53. The Trustee has a duty to apply the trust assets in accordance with the Trust Deed. In performing that duty, it is required to inform itself properly of the relevant facts: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 at [30] ff. It is also required to act in good faith, on a real and genuine consideration of the material before it and for sound reasons, although it is not obliged to give reasons for its decision: see Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [32] ff per Santow JA (with whom Spigelman CJ and Tobias JA agreed). If, for any reason, the Trustee has failed to discharge its duties in considering the member's claim, the appropriate order is to refer the matter back to the Trustee. The court generally does not itself seek to execute the trust: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [33].
54. Although a member is not a party to the contract with the insurer who provides insurance cover to the trustee of a superannuation fund, the member has standing to enforce the contract as a beneficiary of the trust which holds the insurance policy as one of its assets. The member does not have a personal claim but is entitled to seek an order that the insurer pay to the trustee the amount due to the trustee under the contract: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [78] ff. An insurer, when considering a claim, must comply with its obligation of utmost good faith. That obligation requires the Insurer to act reasonably in considering the claim. The obligation to act reasonably includes an obligation to consider and to determine the correct question. It also includes an obligation to give the member an opportunity to answer any material on which the insurer intends to rely: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [35] ff. Although the obligations of the trustee and the insurer are expressed in different terms, from a practical point of view, the grounds on which the decision of each may be challenged are similar: Sayseng (2003) at [77]. The duty of the court is to determine whether the insurer breached its duty of utmost good faith. It is not to substitute its own view for that of the insurer. However, if an insurer refuses a claim in breach of its obligation of good faith, the court itself can determine whether, on the material available to it, the claim fell within the policy: Sayseng (2005) at [36].
[3] Ibid at [2.8] citing McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197; Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115.

To similar affect was the decision in Verinder v Australian Institute of Steel Construction[4] where the Court held that a superannuation fund member had rights directly enforceable against the life insurer even though the superannuation trustee was the policy holder. Under s 48A(1)(a) of the ICA, the Deceased as a third party beneficiary has the right to recover from the insurer any benefit from the insurer in accordance with the contract even though they are not a party to the contract.
[4] [2003] NSWSC 975; (2004) 13 ANZ Ins Cas 61-589.
The above analysis suggests there are two ways in which the third party beneficiary may directly seek to hold the life insurer to account: first, by enforcing the terms of the life insurance policy and secondly, by bringing an action that the insurer has breached its duty to act in the utmost good faith.
Section 13(1) of the ICA provides that each party to a contract of insurance is required to act towards each other in respect of any matter arising under the contract or in relation to it, with the utmost good faith. Under section 13(3) a reference to a contract of insurance incudes a reference to a third party beneficiary under the contract. Even prior to the amendment of s 13 in 2013 to extend the duty to third party beneficiaries in the sense described in s 13 (3), decisions in CE Heath Casualty & General Insurance Ltd v Grey[5] and Hannover Life Re of Australasia Ltd v Sayseng[6] suggested that life insurers owed a duty of utmost good faith to the third party beneficiaries in relation to matters relating to the contract.
[5] (1993) 32 NSWLR 25.
[6] [2005] NSWCA 214 at [70]; (2005) 13 ANZ Ins Cas 90-123.
The applicant also relied upon the decision of Gray J in United Super Pty Ltd v Built Environs Pty Ltd.[7]In that case, Gray J held that in addition to the trust relationship between the trustee and the member, there was also a contractual relationship between them, the contract being formed by the acceptance of the application form by the trustee and comprising the application form and the trustee deed. Further, Gray J held that contract itself was a contract of insurance as a result of the definition of a contract of insurance in s 10 of the ICA. As a contract of insurance, the trustee owed duties of the utmost good faith to the member.[8]
[7] [2001] SASC 339.
[8] Ibid at [58].
That decision appeared to be a consequence of the quite peculiar circumstances of that case: being the terms of the application form and the summary of the rules which set out the member’s insurance benefits and obligation.[9] It was expressly stated that United Super would provide disability cover on the terms specified and suggested that the member was contracting with United Super for the selected insurance benefit. The name or existence of any insurer was not disclosed.
[9] Ibid at [54].
In the present case, no evidence was adduced of the application process undertaken by the Deceased to become a member of the superannuation fund. The application form was not tendered in evidence. The documents constituting any contract were not identified or tendered. Documents that were in evidence, such as the AMP Flexible Super fact sheet, insurance for employees,[10] identified AMP Life as the insurer. The Amending Deed clearly showed that AMP Life was the life insurer and not AMP Super. In these circumstances, I do not find on the evidence before me that there is a contract of insurance between AMP Super and the Deceased. A similar conclusion was reached in Edington v Board of Trustees of the State Public Sector Superannuation Scheme[11] where Bond J held that United Super was a different result, on different evidence, in relation to a different superannuation scheme.
[10] Exhibit A2, p 359 at 360.
[11] [2015] QSC 245 at [174].
The decision in United Super has been the subject of some criticism[12] and as being contrary to the High Court and other authority relating to the nature of a member’s interest in a Superannuation Fund. Hill J, writing extrajudicially, referred to:
(1)The decision in Tooheys Ltd v Commissioner of Stamp Duties[13] where the Court considered whether there was consideration for the trustee of a superannuation fund holding contributions and investments on the trust set out in the scheme’s rules and deed. Walsh J in the Supreme Court (whose judgment was accepted by the High Court) held that:[14]
An acceptance of a trust and an agreement to hold the trust property upon the terms of the trust and to administer it accordingly, do not constitute the giving of consideration by the trustees for the property so accepted. If it were so, every trust would have to be regarded as created for full consideration.
Dixon CJ in Tooheys held that the placing of the trust fund in the trustee’s hands was no consideration for the present or future equitable interests created by the deed. Windeyer J agreed with Walsh J.[15]
(2) The decision in Caboche v Ramsey[16] where Gummow J held:
This is not a case involving contractual restraining…Mr Bond was not a party to the deed and his rights as beneficiary are not contractual. Whether the trust was established voluntarily or pursuant to a binding agreement does not affect the nature of rights over the assets of the fund, which are governed by trust law.
[12] See G Hill “The True Nature of a Member’s interest in a Superannuation Fund” (2002) 5(1) Journal of Australian Taxation”.
[13] [1961] HCA 35; (1960-61) 105 CLR 602.
[14] [1960] SR (NSW) 539 at 548.
[15] [1961] HCA 35; (1960-61) 105 CLR 602 at 624.
[16] [1993] FCA 611; (1993) 119 ALR 215 at 232.
Gummow J went to quote from the judgment in Gosper v Sawyer[17] where Mason and Deane JJ held:
The origins and nature of contract and trust are, of course, quite different...
There is however no dichotomy between the two. The contractual relationship provides one of the most common bases for the establishment or implication and the definition of a trust. Conversely, the trust, particularly the resulting and constructive trust, represents one of the most important means of protecting parties in a contractual relationship and of vindicating contractual rights.
Gummow J then stated:
Many equitable rights and interests have their genesis in contract or voluntary covenant…
But once the trust is constituted, it is accurate to characterise the rights of the beneficiary simply as equitable.
[17] Ibid. [1985] HCA 19; (1985) 160 CLR 548 at 568-9.
The decision of Gray J in United Super was also criticised in Wickens “The Law of Life Insurance in Australia”.[18] The learned author stated:
It is submitted that the finding in that case of an insurance contract between the trustee of a superannuation fund and a member of the fund was wrong.
[18] R B Sharpe Law Book Co, “Wickens, The Law of Life Insurance in Australia” at [10.505].
The learned author went to say:[19]
…the relationship between the trustee and the member pursuant to which superannuation benefits are paid is wholly and exclusively that of trustee and beneficiary. That relationship is governed by the governing rules of the fund, the general law of trusts and the SIS Act. There is no contract of insurance between the trustee and the member. The Australian Securities and Investments Commission (ASIC) has said that the interest that the member acquires is a superannuation interest.
[19] Ibid.
The applicant has also brought certain claims based on statutory rights. The life insurance policy and the superannuation products are both financial products within the meaning of ss 763A and 763C of the Corporations Act and for the purposes of the ASIC Act. The provision of a service in relation to a financial product may amount to provision of a financial service pursuant to s 766A of the Corporations Act and for the purposes of the ASIC Act. The applicant claims that AMP Life and AMP Super have breached various provisions of the Corporations Act and the ASIC Act relating to misleading conduct and unconscionable conduct.
It follows from the above analysis that the applicant may have the following remedies potentially available to him, which forms the basis of the causes of action pleaded by the applicant:
(1)A claim, based on contract, directly against AMP Life for breach of the terms of the Life Insurance Policy.
(2)A claim against AMP Life for breach of its duty of utmost good faith in relation to the refusal to pay the claim.
(3)A claim against AMP Super for breach of its duty to act in the best interests of the Deceased and other claims under the SIS Act;
(4)Statutory claims against both AMP Life and AMP Super for misleading and deceptive conduct and unconscionable conduct.
These claims must be examined in the context of the surrender or cancellation of the life insurance benefits of the Deceased held in her superannuation account and the events which led to that cancellation of the insurance cover.
Cancellation of the Policy
By reason of the TLAA,[20] the SIS Act was amended from 1 July 2019 by the inclusion of s 68AAA. Section 68AAA provided:
[20] No 19 of 2019, schedule 2.
68AAA Benefits provided by taking out insurance--inactive accounts
(1)    Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a) the member's account is inactive in relation to that product for a continuous period of 16 months; and
(b) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.
Note: This section does not apply in relation to regulated superannuation funds with fewer than 5 members (see section 68AAD).
(2)    Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.
(3)    For the purposes of this section, a member of a regulated superannuation fund has an account that is inactive in relaion to a choice product or MySuper product for a period if the trustee, or trustees of the fund, have not received an amount in respect of the member that relates to that product during that period.
(4)    The prohibition in subsection (1) ceases to apply to benefits provided to, or in respect of, a member of the fund under a choice product or MySuper product held by the member if the trustee, or trustees of the fund, receive an amount in respect of the member that relates to that product after the account has been inactive in relation to the product for 16 months.
(5)    However, the prohibition in subsection (1) applies again if the member's account is again inactive in relation to the product for a period of 16 months.
(6)-(8)… [not relevant]
In addition, the TLAA provided for some application and transitional provisions in relation to section 68AAA. These provisions do not form part of the SIS Act. Item 3 of Part 2 of schedule 2 of the TLAA provided:
Part 2 – Application and transitional provisions
3 Application of section 68AAA
(1) Section 68AAA of the Superannuation Industry (Supervision) Act 1993, as inserted by item 1 of this Schedule, applies on and after 1 July 2019 (the commencement day).
(2) However, a period during which a member's account is inactive in relation to a choice product or MySuper product offered by a regulated superannuation fund is to be taken into account for the purposes of section 68AAA even if the period begins before the commencement day.
(3)     Each trustee of a regulated superannuation fund that offers a choice product or MySuper product under which a benefit may be provided by taking out or maintaining insurance must ensure that:
(a) on 1 April 2019, each member of the fund who has an account in relation to one or more of those products that has been inactive for a continuous period of 6 months before that day is identified; and
(b) on or before 1 May 2019, each of the members of the fund identified under paragraph (a) is given notice in writing in accordance with subitem (4).
(4)     The notice must:
(a) state that, on and after 1 July 2019, a benefit will not be provided to the member under the product by taking out or maintaining insurance if:
(i) for a continuous period of 16 months, the member's account is inactive in relation to that product (as defined for the purposes of section 68AAA of the Superannuation Industry (Supervision) Act 1993); and
(ii) the member has not elected that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months; and
(b)   set out the method by which the member can make such an election in writing.
(5) An election made under paragraph (4)(b) before the commencement day has effect on and after the commencement day as if it were an election made under subsection 68AAA(2) of the Superannuation Industry (Supervision) Act 1993 .
(6)    Despite subitem (3), a trustee of a regulated superannuation fund that offers a choice product or MySuper product does not have to ensure that a notice is given to a member of the fund to whom it would otherwise be required to be given under that subitem if:
(a) after 8 May 2018 but before 1 April 2019, the member has given the fund notice in writing that the member elects to have one or more benefits provided under the product or the products held by the member by taking out or maintaining insurance; and
(b) the only benefits provided to the member under the product or products held by the member by taking out or maintaining insurance are covered by the election.
The notice mentioned in paragraph (a) has effect on and after the commencement day as if it were an election made under subsection 68AAA(2) of the Superannuation Industry (Supervision) Act 1993.
The provisions of the Electronic Transactions Act 1999 (Cth) (the ETA) must also be considered in the context of considering the sufficiency of the emails sent by AMP Super to the Deceased advising her of the amendments introduced by the TLAA.
Section 9 of the ETA provides:
Requirement to give information in writing
(1)    If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a) in all cases--at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication--the entity's requirement has been met; and
(c)   if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information--the entity's requirement has been met; and
(d) if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity--the person to whom the information is required to be given consents to the information being given by way of electronic communication.
(2)-(3)…
(4)    This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.
(5)    For the purposes of this section, giving information includes, but is not limited to, the following:
(a)   making an application;
         (b) making or lodging a claim;
        (c) giving, sending or serving a notification;
        (d)   lodging a return;
        (e) making a request;
        (f) making a declaration;
        (g) lodging or issuing a certificate;
        (h)   making, varying or cancelling an election;
        (i) lodging an objection;
        (j)    giving a statement of reasons.
Section 7A of the ETA provides that the regulations may provide that specified provisions of the ETA do not apply to particular transactions, requirements, permissions or electronic communications. By virtue of regulation 4 of the Electronic Transactions Regulations 2000 and Schedule 1 of those regulations, s 9 of the ETA does not apply to s 68AAA of the SIS Act, but does apply to Part 2 of the TLAA (Application of s 68AAA).
Determination
The Statement of Claim is a somewhat confusing document and somewhat conclusionary in nature. That said, the basis of the claims are sufficiently clear. There was no objection by AMP Life or AMP Super to the maintenance of the causes of action or their restriction to pleaded facts. Both parties proceeded on the basis that the central and determinative issue in the case was the effect of s 68AAA of the SIS Act and item 3 of Part 2 of Schedule 2 of the TLAA and whether the Deceased had been notified and given the right of election in accordance with those provisions. I therefore propose to consider each of the pleaded causes of action and not take an unduly technical approach to the pleading.
Misleading and deceptive conduct
The applicant claims that by sending the 10 October letter, both AMP Life and AMP Super engaged in misleading and deceptive conduct contrary to ss 1041E and 1041H of the Corporations Act and ss 12DA and 12DB of the ASIC Act. It is not clear on what basis it is alleged that both respondents are responsible for sending that letter. The letter encloses the annual statement of the Deceased of her superannuation account with AMP Super. Although the letter is headed simply “AMP”, the end of the letter states that any advice in the letter was provided by AMP Super. The subject matter of the letter also suggests that it was sent by AMP Super (as it was required to do).
Although there are difficulties with establishing the requirement under s 1041E(1)(b) that (1) the statement induced the Deceased to apply for or dispose of the life insurance policy or (2) had an effect on the price of the financial product or (3) was a representation as to the nature or quality etc of financial services as required under s 12DB of the ASIC Act, there is a fundamental flaw with the claim for misleading conduct. That is there is no plea or evidence that the Deceased in any way relied upon the 10 October letter or that it caused her to take some action or refrain from taking some action. The letter was sent some 6 days before the death of the Deceased and at a time when the Deceased was in hospital. The Deceased did not return to her house. There was no evidence that the 10 October letter was ever brought to her attention. The applicant submitted that it was not known whether she got the letter, but that it is not sufficient. The applicant must prove reliance and causation. In the circumstances that I have described, I find that the 10 October letter did not come to the attention of the Deceased. It follows therefore, that the sending of the letter cannot have caused any loss to the Deceased.
Further, as I have said, the 10 October letter was not sent by AMP Life, so there could be no claim in any event against AMP Life for misleading and deceptive conduct.

For the reasons that I have expressed, I reject the claims of the applicant based on misleading and deceptive conduct.
Breach of the terms of the Life Insurance Policy
The applicant claims that the respondents breached the terms of the Life Insurance Policy and s 210 of the LIA and s 59(3) of the ICA by purporting to cancel the Policy when it did not comply with those provisions or provide notification of the cancellation. The applicant further alleges that it was an implied term of the Policy that it would only be cancelled if notice was given in accordance with s 210 and 59(3) above.
This claim also proceeds on a flawed premise. That premise is that the respondents cancelled the Life Insurance Policy because of the failure on the part of the Deceased to pay the premiums. Section 210(1) of the LIA provides relevantly that a policy is not liable to be forfeited because of the non-payment of a premium. Section 210(5) provides that:
A life company may only forfeit a policy because of the non-payment of a premium if:
(a) the company has given the policy owner a written notice:
(i) setting out the amount of the premium and the day on which it became, or will become, due; and
(ii) stating that the policy will be forfeited at the end of 28 days after the giving of the notice or 28 days after the day on which the premium became, or will become, due, whichever is the later if the amount due to the company has not been paid; and
(b) at least 28 days have elapsed since:
(i) the day on which the notice was given; or
(ii) the day on which the premium became due;
whichever is the later.
In the present case, there has been no failure on the part of the Deceased to pay premiums. As shown, the last premium was paid on the due date on 1 June 2019. What has happened as a result of the TLAA, AMP Super determined that it would be unlawful for it to continue to pay premiums from the superannuation account of the Deceased to AMP Life for death cover of the Deceased. It therefore surrendered or cancelled the cover of the Deceased. Pursuant to clause 9.3 of the Amending Deed, the benefit payable to a member ceased on the cancellation of the insurance benefit.
In these circumstances, there has been no breach by either respondent of s 210 of the LIA.
Section 59 of the ICA (which also provides for a requirement of notice before cancellation by the insurer) is in wider terms and applies to any exercise of a right of cancellation by an insurer and is not limited to cancellation for non-payment of premiums. Section 59 provides:
(1)     An insurer who wishes to exercise a right to cancel a contract of insurance shall give notice in writing of the proposed cancellation to the insured.
(2)    The notice has effect to cancel the contract at whichever is the earlier of the following times:
(a) the time when another contract of insurance between the insured and the insurer or some other insurer, being a contract that is intended by the insured to replace the first-mentioned contract, is entered into;
(b)   whichever is the latest of the following times:
(i) 4 pm on the applicable business day;
             (ii) if a time is specified for the purpose in the contract--that time;
             (iii) if a time is specified in the notice--that time.
(2A) In subparagraph (2)(b)(i):
"applicable business day" means:
(a) in respect of a contract that is not a contract of life insurance:
(i) if the contract is in force because of section 58- the fourteenth business day; or
(ii) otherwise ¾ the third business day; or
(b) in respect of a contract of life insurance- the twentieth business day;
after the day on which the notice was given to the insured.
(3) This section does not apply to a contract of life insurance if the life policy that is constituted by the contract may be forfeited in accordance with subsection 210(5) of the Life Insurance Act 1995.
Section 59(3) provides that the section does not apply if the policy was a policy of life insurance which was liable to be forfeited in accordance with s 210 of the LIA. However, as I have found s 210 does not apply because the policy was not forfeited for failure to pay a premium, s 59(3) has no application. Sections 59(1) and 59(2) will only apply if the life insurance benefits held within the Life Insurance Policy was cancelled by the insurer, AMP Life. In this case, the evidence was that the life insurance benefits held within the Life Insurance Policy were in fact cancelled by AMP Super. The contract of Life Insurance was between AMP Life and AMP Super. It was AMP Super who paid the premiums for the life insurance benefit and who, subsequent to 1 July 2019, was precluded from doing so by the TLAA. If that is the case, there is no breach of s 59 by AMP Life (as it did not cancel the Life Insurance Policy) or by AMP Super (as s 59 did not apply to it).
Pursuant to s 63(3) of the ICA, a purported cancellation of a policy by an insurer in contravention of s 59 or s 210 is of no effect. There is no basis to imply a term in the Life Insurance Policy that any notice purporting to cancel the policy should be in writing and sent to the Deceased. The Life Insurance Policy sets out in clear terms the circumstances in which a policy may be cancelled. The applicant did not make any submission as to how the normal requirements for the implication of a term had been satisfied.
It follows therefore that there is no basis for a claim for breach of contract against AMP Life as it did not cancel the life insurance benefits held within the Life Insurance Policy and therefore did not breach the terms of the Policy. AMP Life also did not contravene s 59 of the ICA or s 210 of the LIA. It also follows that AMP Life has not breached its duty of utmost good faith as it has not taken any action in relation to the Policy.
The applicant further submitted that because no notice was given to the Deceased, the life insurance benefit remained uncancelled and AMP Life was obliged to respond to the claim. Again, that submission misstates the way in which the life insurance policy was cancelled. The life insurance benefits were cancelled or surrendered by AMP Super as the policy holder under the Life Insurance Policy. Following that surrender or cancellation, there was no life insurance benefit provided by AMP Life to AMP Super in respect of the Deceased.
Overpayment of premiums
The applicant has alleged that the Deceased overpaid premiums in relation to other policies of insurance held with AMP Life. AMP Life and AMP Super had entered into a policy of insurance where inter alia, Temporary Salary Continuance (TSC) benefits and Total and Permanent Disability (TPD) benefits were paid to the Deceased. The Deceased was a third party beneficiary to these policies. Following the termination of her employment with the WEA, the Deceased made a claim under these policies. A settlement was reached between the Deceased, AMP Super and AMP Life which was recorded in a Deed of Settlement. Pursuant to the Deed of Settlement, the Deceased received the sum of $155,000. In exchange, the Deceased agreed that any further right, interest or entitlement in respect of her benefits under the TSC and TPD policy were forever extinguished and that, in respect of her, those policies were void and of no effect.
Notwithstanding the extinguishment and voidness of the policies, AMP Super continued to pay premiums from the account of the Deceased for these policies to AMP Life. The premiums that were paid subsequent to the Deed of Settlement totalled $8,119.78. The applicant has not claimed restitution for these monies, but has submitted that those monies represent payments of the premium for the life insurance benefits under the Life Insurance Policy.
I reject that submission. The payments potentially give rise to a claim in restitution on behalf of the Deceased against AMP Life for payments made under a void contract or payments made under mistake. If such a claim was made (and none has) and restitution ordered, AMP Life may be obliged to make payment in the sum of $8,119.78 to AMP Super. AMP Super would not have had any right or obligation to allocate those payments to the payment of premiums under the Life Insurance Policy, but would be obliged to pay them into the Deceased’s superannuation account. At the relevant times that the payments were made, there was no shortfall in the payments of the premiums under the Life Insurance Policy. The superannuation account of the Deceased with AMP Super was in credit in excess of $300,000. There was no power or even reason for AMP Super to allocate that amount to the payment of premiums for the life insurance benefits under the Life Insurance Policy. Further, any such allocation could only be made once the monies were received into the account of the Deceased.
For the above reasons, I reject the claim of the Deceased that the payments of the premiums in respect of the Salary Continuance Policies or the Total and Permanent Disability Policies represented an overpayment of the premiums under the Life Insurance Policy such that AMP Super could not cancel that Policy when the new TLAA commenced.
Duty of utmost good faith
The applicant has made a number of claims that both AMP Life and AMP Super breached their duties of utmost good faith under ss 13 and 14 of the ICA and under the unwritten law.
There is some debate, which does not need to be resolved for the purposes of these proceedings, as to whether the insurer owed to the beneficiary a duty of the utmost good faith or the duty of good faith and fair dealing and, if so, how they differ. In The Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd,[21] Stephen J found the insurer to owe a duty of good faith and fair dealing to a third party beneficiary. In the context of a life insurer considering a claim by a third party beneficiary under a life insurance policy, McClelland J in Edwards v The Hunter Valley Co-Op Dairy Co Ltd,[22] held that the life insurer was under a duty of good faith and fair dealing when exercising its powers which required it to have due regard to the interests of the claimant. It was required to act reasonably in considering and determining the matter.[23] To similar effect was the decision of Bryson J in Sayseng v Kellogg Superannuation Pty Ltd,[24] which was upheld on appeal in Hannover Life Re if Australasia v Sayseng.[25]
[21] [1974] HCA 3; (1974) 130 CLR 1.
[22] (1992) 7 ANZ Ins Cas 61-113 at 77,536.
[23] Ibid.
[24] [2003] NSWSC 945.
[25] [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123.
Some cases have equated the duty to act in good faith and fair dealing to that of utmost good faith: see Dumitrov v SC Johnson & Son Superannuation Pty Ltd,[26] where Gzell J did not draw a distinction between a duty of good faith and fair dealing and a duty of the utmost good faith and Ziogos v FSS Trustee Corporation as trustee of the First State Superannuation Fund,[27] where Ball J referred to the duty of utmost good faith as being sometimes described as the duty of good faith and fair dealing.
[26] [2006] NSWSC 1372.
[27] [2015] NSWSC 1385 at [65]; (2016) 19 Ins Cas 62-094.
However, s 13(3) of the ICA now extends the post contractual duty of utmost good faith to a third party beneficiary under the contract. A third party beneficiary is defined under s 11(1) of the Act as a person who is not a party to the contract but is specified or referred to in the contract, whether by name or otherwise, as a person to whom the benefit of the insurance cover provided by the contract extends. The insurer must act towards the third party beneficiary in respect of any matter arising under or in relation to the contract, with the utmost good faith.
The accepted formulation of the duty of utmost good faith[28] is set out in CGU Insurance Ltd v AMP Financial Planning Pty Ltd[29] where Gleeson CJ and Crennan J held:[30]
We accept the wider view of the requirement of utmost good faith adopted by the majority in the Full Court, in preference to the view that absence of good faith is limited to dishonesty. In particular, we accept that utmost good faith may require an insurer to act with due regard to the legitimate interests of an insured, as well as to its own interests [citing Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd [1974] HCA 3; (1974) 130 CLR 1 a 331 per Stephen J]. The classic example of an insured's obligation of utmost good faith is a requirement of full disclosure to an insurer, that is to say, a requirement to pay regard to the legitimate interests of the insurer. Conversely, an insurer's statutory obligation to act with utmost good faith may require an insurer to act, consistently with commercial standards of decency and fairness, with due regard to the interests of the insured. Such an obligation may well affect the conduct of an insurer in making a timely response to a claim for indemnity.
[28] P Mann “Mann’s Annotated Insurance Contracts Act” LawbookCo, 2016 [13.10.5].
[29] [2007] HCA 36; (2007) 235 CLR 1.
[30] Ibid at [15].
In the same case, Callinan and Heydon JJ held:[31]
At the outset we should say that we agree with the Chief Justice and Crennan J that a lack of utmost good faith is not to be equated with dishonesty only. The analogy may not be taken too far, but the sort of conduct that might constitute an absence of utmost good faith may have elements in common with an absence of clean hands according to equitable doctrine which requires that a plaintiff seeking relief not himself be guilty of tainted relevant conduct. We have referred to the doctrine of clean hands because, as with another equitable doctrine, that he who seeks equity must do equity, it invokes notions of reciprocity which are of relevance here. That is not to say that conduct falling short of actual impropriety might not constitute an absence of utmost good faith of the kind which the Insurance Act demands. Something less than that might well do so. Utmost good faith will usually require something more than passivity: it will usually require affirmative or positive action on the part of a person owing a duty of it. It is not necessary, however for the purposes of this case, to attempt any comprehensive definition of the duty, or to canvass the ranges of conduct which might fall within, or outside s 13 of the Insurance Act.
[31] Ibid at [257].
The applicant claims that AMP Life (or AMP Super) engaged in conduct that was in breach of its duty of utmost good faith in a number of respects. First, the applicant claims that the sending of the 10 October letter was in breach of the duty of utmost good faith. Although that letter mistakenly implied that the Life Insurance Policy was still on foot, I have found that the Deceased did not receive that letter and was not aware of the existence of the letter at the time of her death. In these circumstances, it cannot have been a breach of the duty for AMP Life to correct the position in subsequent communications. The Deceased did not adopt any position as a consequence of that advice, such that it could be said that it was unfair or unreasonable or contrary to the ordinary standards of business to retract the error. Further, I have found that it was AMP Super who sent that letter. It is not pleaded that AMP Super had breached its duty of utmost good faith in respect of the 10 October letter. In any event, I have found that AMP Super was not an insurer and therefore did not owe a duty of the utmost good faith to the Deceased.
It is further pleaded that AMP Life and AMP Super breached their duty of utmost good faith by cancelling the Life Insurance Policy without complying with the provisions of s210 of the LIA or s 59(3) of the ICA (which require notice when the policy is to be cancelled for the lack of payment of premiums) or failed to give proper notice of their intention in sending the emails regarding the TLAA and s 68AAA of the SIS Act.
I have found that: (1) The Life Insurance Policy was not cancelled for the failure to pay the premiums and therefore s 210 of the LIA and s 59(3) of the ICA had no application (2) AMP Super surrendered or cancelled the life insurance benefits of the Deceased Life Insurance Policy because it was prohibited from making payments under the provisions of the TLAA. In these circumstances, there can be no breach of the duty of utmost good faith by either AMP Life or AMP Super in not sending the notices relating to proposed termination for non-payment of premiums. Equally, as AMP Life did not cancel the life insurance benefits in the Life Insurance Policy and AMP Super did not owe the duty of utmost good faith, there could be no breach of the duty of utmost good faith in terminating the Policy without sending the notices required under the TLAA or s 68AAA of the SISAct.
I have already found that the overpayment of premiums may gave rise to a claim for restitution against AMP Life. That claim resided in AMP Super as trustee for the Deceased. The claim, if successful, therefore would have resulted in AMP Super receiving the refund from AMP Life and then applying it to the account of the Deceased with AMP Super. As I have already found, there was no basis for AMP Super to allocate that amount to the payment of premiums for the Life Insurance Policy. Such an allocation would have, in any event, infringed s 68AAA of the SIS Act.
That leaves the claim by the applicant that there was a breach of the duty of utmost good faith because the cancellation of the life insurance benefit under the Life Insurance Policy contravened s 68 AAA of the SIS Act and TLAA in that the required notice was not given. Notice was required to be given by AMP Super, as trustee of the Fund, to the Deceased as a member of the Fund. The TLAA and s 68AAA of the SIS Act prevented AMP Super from giving any benefit in the defined circumstances. It was AMP Super who therefore cancelled (or surrendered) the benefit. In these circumstances, there could be no breach of duty of AMP Life in (1) providing notification to the Deceased about the changes in legislation (as it was AMP Super who was required to provide notice and did in fact send the disputed emails); (2) not considering whether it was justified in cancelling the Life Insurance Policy as it was AMP Super who undertook that act or (3) refusing to pay out on the claim in circumstances where the policy had been cancelled.
The applicant also claimed that AMP Life and AMP Super breached their duty of utmost good faith by their reliance upon the Deed of Release. AMP Life amended their defence to exclude reliance on the Deed, so that issue is no longer applicable.
Was AMP Super acting in the best interests of the Deceased
The applicant submitted that the same matters which gave rise to his claims for a breach of the duty of utmost good faith on the part of AMP Life and AMP Super, also give rise to a claim that AMP Super breached its duties to act in the best interests of the Deceased.
Section 52 of the SIS Act (as it was in force at the relevant time) provided that the trustee was required to perform its duties and exercise its powers in the best interests of the beneficiaries. It should be observed that in 2021 by the Treasury Laws Amendment (Your Future, Your Super) Act 2021, (Cth) - Schedule 3, s 52(2)(c) was amended to delete the words “best interests” and substitute “best financial interests”. Further, s 220A was inserted which dealt with the evidential burden in civil proceedings relating to the duty to act in the best financial interests of beneficiaries). However, the breach of the relevant duty is alleged to have taken place prior to these amendments and consequently the amendments do not apply to these proceedings. Sections 54B and 55 of the SIS Act then gives a remedy to a beneficiary if the trustee has contravened a provision in the governing rules, including the rules implied by s 52.
What is meant by the duty to act in the best interests of beneficiaries under s 52(c) is well settled, although its application will depend on the range and character of the beneficiaries.[32] In Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd,[33] Giles JA (Young and Whealy JJA agreeing) held:
Nor in my opinion does s 52(2)(c) materially add to breach by the respondent of its general law duty to act in the best interests of members of the Fund. The respondent's general law obligation could be expressed, in the language of s 52(2)(c), as an obligation to perform and exercise its duties and powers in the best interests of the beneficiaries. The words "to ensure" add nothing; an obligation is an obligation. Again, the respondent was exercising a discretionary power, and "to ensure" does not turn the question of exercise of a discretionary power into one of strict liability. There is liability if the discretionary power is exercised improperly, but otherwise there is not.
[32] S Hepburn “Principles of Equity and Trust” 6^th ed, 2020, Federation Press at [32.3].
[33] [2011] NSWCA 204 at [121].

That finding (made in relation to the pre 2013 version of s52(2)(c)) was in accordance with the conclusion of Byrne J in Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Pty Ltd[34] and Jacob’s Law of Trusts in Australia.[35] This approach was followed in MLC Nominees v McNally.[36]
[34] [2006] VSC 112; (2006) 15 VR 87 at [102]-[107].
[35] LexisNexisButterworths, 8^th ed at [2921].
[36] [2018] FCA 1950 at [68].
In Cowan v Scargill,[37] Megarry V-C provides guidance (in the context of investments made by a trust) of what was meant by acting in the best interests of the trust. He held:
[37] [1985] Ch 270 at 286-7.
The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must of course, obey the law, but subject to that, they must be the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interests of the beneficiaries are normally their best financial interests…
Megarry V-C went on to hold[38] that “Trustees must do the best they can for the benefit of their beneficiaries and not merely avoid harming them”.[39]
[38] Ibid at p295.
[39] Approved in Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd, [2011] NSWCA 204 at [107].
The applicant has alleged that AMP Super has breached this duty by failing to notify the Deceased under s 68AAA of the SIS Act and the TLAA and then cancelling the policy without first providing the beneficiary the opportunity to elect to continue her life insurance benefits under the Life Insurance Policy.
Item 3 of Part 2 of Schedule 2 of the TLAA imposes an obligation upon AMP Super to ensure that each member of the fund who has an inactive account is given notice in writing in accordance with sub-item (4) (which says the insurance benefit will not be provided if the member does not elect to continue to maintain insurance).
AMP Super submits that it complied with that requirement because it sent the disputed emails to the Deceased. AMP Super relies upon s 9 of the ETA which provides that where a person is required to give information in writing, that requirement is satisfied when the person gives the information by means of an electronic communication if the person to whom the information is required to be given, consents to the information being given by way of electronic communication. AMP Super further submited that the consent of the Deceased to the provision of this notice being given by way of email may be inferred from the fact that she supplied her WEA email address to AMP Super. Section 5 of the ETA provides that consent includes consent that can reasonably be inferred from the conduct of the person concerned.
AMP Super relies on the decision of the Full Federal Court in Beni v Minister for Immigration and Border Protection[40] where the Court held:
Neither party suggested that anything turned on s 9 of the Electronic Transactions Act. In particular, the question of the appellant’s consent under s 9(1)(d) of the Electronic Transactions Act was not raised as an issue by the parties. No consideration was given to whether s 9 of the Electronic Transactions Act was inconsistent with later provisions of the Act and Regulations, reg 2.55 having commenced on 10 August 2001, nor of the consequence if there were any such inconsistency. In any event, however, as the Minister submitted when the question was raised whether the appellant had given consent as contemplated by s 9(1)(d), the appellant’s consent may be inferred from the fact that she provided her email address to his Department in her application for the visa. The Minister also noted that this issue was not raised before the Tribunal or the Federal Circuit Court and it cannot now be raised in this appeal. Despite the appellant being given the opportunity, at the hearing of this appeal, to consider seeking leave to raise further grounds, no application was made to raise any issue in this respect.
[40] [2018] FCAFC 228 at [21].
A number of observations may be made about this passage. First, it is clearly obiter and in fact, was not even the subject of argument by the appellant. Secondly, the Court found that consent for the purposes of s 9(1)(d) may be inferred from conduct. Thirdly, in that case, the email address of the appellant was provided in the application for the visa. Fourthly, the Migration Regulations 1994 (Cth) have a detailed regime relating to dispatch and receipt of electronic communications.
Section 9 of the ETA and the issue of inferred consent was also considered by Perry J in Hossam v Minister for Immigration and Border Protection.[41] Perry J held that in that case there was sufficient material and evidence in the circumstances to raise a prima facie consent was given. That material was the election to receive communications on the Authorised Recipient’s declaration; the appellant’s nomination of the Authorised Recipient in his application for review, including provision of the Authorised Recipient’s email address and the Authorised Recipient’s receipt and acknowledgment of correspondence via email.[42] That material can be readily contrasted with the material in the present case where all that is known is that, in a way unknown and in circumstances unknown, AMP Super had been provided with the WEA email address.
[41] [2016] FCA 1161.
[42] Ibid at [62].
It appears to me that s 9(1)(d) requires a factual inquiry - has the recipient of the information in all the circumstances agreed to the information being given by electronic means? The relevant circumstances are not limited to an express agreement in writing. That would be impracticable and may be contrary to an established system of communications between the parties. The issue of inferred consent requires an objective inquiry into the communications between the parties and the conduct of the Deceased. The history of communications between the parties would be a relevant consideration, although the weight that could be attached to that history would be dependent on finding that the parties had adopted between each other a particular form of communication.
In the present case, AMP Super relies on three matters to establish the inferred consent that communications could be sent to the WEA email address of the Deceased: first, the provision of the WEA email address of the Deceased to AMP Super; secondly (and in conjunction with that), the letter sent by AMP Super on 15 May 2014 relating to the contact details of the Deceased; and thirdly, the letter sent by AMP Super on 6 July 2016 about going digital.
There is no evidence as to the circumstances in which the WEA email address of the Deceased was supplied to AMP Super. It is not known who supplied the email address or in what circumstances. It is therefore very difficult to infer the relevant consent of the Deceased to receive the information electronically from the mere provision of that email address. This is a very different case from Beni or Hossam where the email addresses were provided in the application and it could be reasonably inferred that all communications relating to the application, including a refusal of the visa application, could be given to that email address.
Further, in the present case, AMP Super could not point to any particular act or conduct of the Deceased where it could be said that the Deceased had elected to receive this information electronically. For example, there was no form where the Deceased indicated that she wished or agreed to receive information electronically. The change to electronic communications represented a change to the pre-existing form of communications between the parties. Therefore, in the absence of any particular consent being given to the provision of this information, it must be a consent that applies to the provision of all information by AMP Super. There is also no evidence of such a consent.
The applicant also placed reliance on the fact that it was known to AMP Super that the Deceased had left the employment of WEA in 2014 and therefore it was known to AMP Super, on the basis of constructive knowledge, that communications that were sent to that address would not be received by the Deceased as the email address was her old work email address which was no longer used or accessed by the Deceased. I am not prepared to make a finding that AMP Super had constructive knowledge that the email address to which emails in April, June and July 2019 were sent to the previous work email address of the Deceased. The approach to be taken to an inquiry as to whether a person had constructive knowledge of a particular fact was discussed by Tennent J in Kaye v Hoffman (No 2).[43] Tennent J approved[44] the following passage from Santow JA in Commonwealth of Australia v Smith:[45]
The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 478 at [103]. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances.
[43] [2008] TASSC 2.
[44] Ibid at [9] and [42].
[45] [2005] NSWCA 478 at [103].
In the present case, AMP Super, whilst knowing that the Deceased had left the employ of the WEA, could not be expected to know that that the email address was her old WEA email address. In my opinion, the particular circumstances of AMP Super should be taken into account when assessing whether it had constructive knowledge that the WEA email address of the Deceased was her old work email address. I consider the position of AMP Super, as a corporate trustee of a superannuation fund, should be taken into account. Having a list of email addresses of members, it cannot be expected to inquire into the conformity of that address with other information held by AMP Super about the Deceased. This question of constructive knowledge is a different question to whether the Deceased impliedly consented to the provision of the information by this means.
AMP Super also relied upon the letter it sent to the Deceased on 15 May 2014 in which it noted that it had been advised by WEA that the Deceased was no longer employed by WEA. The letter further stated:
To help make sure we can keep you up to date on your account, please let us know if your contact details have changed. You can update your personal details on My Portfolio by simply going to amp.com.au/myportfolio to login or register or you can contact us.
The Deceased did not respond to this letter.
There are a number of difficulties in finding that this letter and the lack of response from the Deceased constituted an inferred consent on the part of the Deceased to the information being provided by AMP Super by email to the WEA email address. First, the letter was sent to the Deceased by post to her home address. On the face of the letter, there was nothing for the Deceased to update. Secondly, there was no mention of the WEA email address anywhere in the letter. Therefore, there was nothing in the letter to suggest that information would be sent by electronic communications at all or to the WEA email address. Thirdly, care must be had before finding that the failure to respond to a letter indicates acceptance of some proposition advanced in the letter. In this case, there is no proposition advanced in the letter, which it could be said that the Deceased has impliedly accepted. In the context of implied acceptance of a contract by silence, the relevant assessment is that made by an objective bystander. In Hopcroft & Edwards v Edmunds,[46] White J (Kourakis CJ, Stanley J agreeing) held:
For the reasons given earlier, I consider that the question of whether the Edmunds’ making the appellants shareholders and directors of Smoothpool indicated acceptance of the appellants’ offer should be determined by reference to the position of the objective bystander. The issue is whether a reasonable person in the appellants’ position would have regarded the Edmunds’ conduct as indicating that their offer had been accepted.
[46] [2013] SASCFC 38 at [86].
In the present case, that test can be reframed as follows: would a reasonable person in the position of AMP Super have regarded the failure of the Deceased to respond to the letter of 15 May 2014 as indicating that the Deceased accepted that all subsequent information could be sent by AMP Super by electronic communications to the Deceased at the WEA email address. In my opinion, the answer to that question is no.
Thirdly, reliance is placed on the letter sent by AMP on 6 July 2016 when it advised that they were going digital. I accept the submission of the applicant that the purpose of that letter was to elicit the consent of the Deceased to a change in the way that she received communications. The Deceased did not provide that consent or agree to the receipt of documents by electronic means. She did not respond to that communication. In these circumstances, I do not consider that the letter provides any basis for inferred consent to the receipt of the information in the disputed emails being sent electronically to the WEA email address. Further, the evidence suggests that this notice was sent by email, making it most unlikely that it came to the attention of the Deceased.
It follows that in my opinion, AMP Super has not complied with item 3 of Part 2 of Schedule 2 of the TLAA in that it failed to give notice to the Deceased of her right to elect to continue to receive the life insurance benefit. By not giving that notice to the Deceased and by subsequently cancelling or surrendering the Life Insurance benefit, AMP Super has breached its duty to act in the best interests of the Deceased. The Deceased has lost the opportunity to continue to receive the life insurance benefits held within the Life Insurance Policy. In effect, AMP Super has taken away a benefit of the Deceased without providing notice to the Deceased.
I also consider that AMP Super has breached its duty to act in the best interests of the Deceased by failing to comply with s 68AAA of the SIS Act. That section imposes a slightly different requirement than item 3 of Part 2 of Schedule 2 of the TLAA. It imposes an additional requirement as item 3 applies prior to 1 July 2019 and s 68AAA applies to all accounts after that date. Section 68 AAA(2) requires that each trustee must ensure that each member of the fund may elect in writing that a benefit specified in the election is to be provided. In contrast, the TLAA requires that the trustee must ensure that a member is given notice. Further, s 9 of the ETA does not apply to s 68AAA of the SIS Act as it is excluded by the Schedule 1 to the Electronic Transactions Regulations (s 9 being part of Part 2 of the ETA). As the Court held in Manglicmont:[47]
Unlike the surrounding paragraphs, para (c) is introduced by the words 'to ensure that'. This means that the statute is inserting into the trust deed a covenant whereby 'the Trustee agrees to ensure that the Trustee's duties and powers are performed and exercised in the best interests of the beneficiaries'. Elsewhere in the SIS Act, the word 'ensure' is employed to impose an obligation upon a director to cause a company to act in a particular way or upon a person or company to achieve a stipulated objective. It is difficult to see how these words add anything to a covenant by a trustee simply to perform and exercise its duties and powers in the best interests of the beneficiaries.
[47] [2013] NSWCA 204 at [107].
It seems to me that s 68AAA is imposing an obligation on the trustee to ensure that the member is given an election. It can only ensure that a member is given an election if the member receives notification of the right to make an election. If the member does not receive notice, they cannot make an election. In the present case, I have found that the Deceased did not receive the disputed emails that were sent to the WEA email address. It follows that AMP Super has not ensured that the Deceased has had an election.
I therefore find that AMP Super has contravened s 68AAA and by doing so has failed to act in the best interests of the Deceased. Clearly, it was in the best interests of the Deceased that she be given an election to continue to receive the benefit.
Further claims under the SIS Act and Negligence
The applicant in his statement of claim also pleaded that AMP Super had contravened 52(7) of the SIS Act which inter alia requires AMP Super to formulate review and give effect to an insurance strategy. The applicant did not adduce any evidence or make any submissions in support of his claim. It is not clear from the pleading of the statement of claim how it was alleged that a breach of s 52(7) had occurred. In these circumstances, I reject any claim of the applicant based on s 52(7).
In his written closing submissions, the applicant also made passing reference to s 52(d)(i), (ii) and (iii). The statement of claim did not plead a cause of action relying on s 52(2)(d). Other than the passing refence in the closing address, there was no submission as to how these sections were breached or any reference to any evidence that is said to support such a contention.
I therefore reject any claim based on s 52(2)(d) of the SIS Act.
The applicant also pleaded that AMP Life and AMP Super were negligent in sending the notices to the disputed email addresses. The applicant did not open on negligence or make any submissions in closing of this plea. I am not therefore prepared to make any finding as to negligence although I do note that the alleged negligent conduct was committed by AMP Super and not AMP Life.
Unconscionability
The applicant has also made claims that AMP Life and AMP Super engaged in conduct that was unconscionable within the meaning of s 991A of the Corporations Act and s 12CB of the ASIC Act.
The pleading of unconscionability was in the broadest terms and the applicant did not plead the required material facts and did little more than plead the conclusion of unconscionability. No submissions were made in support of the plea of unconscionability in the closing address by the applicant. The claim of unconscionability was not opened upon by the applicant.
Section 991A of the Corporations Act provides:
A financial services licensee must not, or in relation to the provision of a financial service, engage in conduct that is, in all the circumstances, unconscionable.
Section 12CB of the ASIC Act is in similar terms. It provides:
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply or possible supply of financial services to a person; or
(b) the acquisition or possible acquisition of financial services from a person;
engage in conduct that is, in all the circumstances, unconscionable.
Section 12CC of the ASIC Act then lists a number of matters that the Court may have regard to in determining whether the impugned conduct was unconscionable.
The Court of Appeal in Pitt v Commissioner for Consumer Affairs[48] examined the test for statutory unconscionability. In that case, the Court held that the applicable standard was a normative one involving the evaluation of the conduct of the respondent in determining whether it was so far outside the societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience. The Court went on to state that although this approach did not require special disadvantage, the inquiry under statutory unconscionability will often look at the vulnerability of one party and the exploitation by the other.
[48] [2021] SASCA 24.

In the present case, there is no evidence on any behaviour of AMP Super that meets the above standard of unconscionability. Merely sending the emails of notification to the wrong address is not of itself unconscionable. Nor is cancelling or surrendering the policy because benefits were not able to be paid by reason of s 68AAA of the SIS Act sufficient. At the very least, in these circumstances, conduct that was intended to deprive a member of their election would be required. Insofar as equitable principles may inform this inquiry, the applicant fails to establish the two threshold questions:[49]
(1)the need for the suggested disability or disadvantage affecting the ability of the person said to be suffering from the unconscionable conduct from making a judgment in their best interests; and
(2)the need to demonstrate that the special disability or disadvantage was known or sufficiently evident to the other party.
[49] See Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86 at [111].
In the present case, there is no evidence of either of the above matters. There is no evidence that the Deceased was not able to form a judgment that was in her best interests and no evidence that AMP Super knew of any such special disability. Although these matters are not conclusive in the case of statutory unconscionability, they are indicative of a conclusion that there is no claim for statutory unconscionability.
For the above reasons, the claim for unconscionability is dismissed.
Assessment of damages
I have found that the breach of duty by AMP Super caused the Deceased to lose the opportunity to elect to continue to maintain the life insurance benefit held within the Life Insurance Policy. As with all cases involving a breach of duty involving the loss of opportunity, the value of the lost opportunity must be determined.
The High Court recently in Talacko v Talacko,[50] considered the approach to the assessment of a loss of opportunity. The Court held that it was important to distinguish between two categories of cases: first, where the acts of a defendant that were in breach of duty deprives the plaintiff of a chance to which they are not entitled, but where the deprivation causes an immediate loss; and secondly, where the act in breach of duty reduces or extinguishes the plaintiff’s existing right, where the value might be quantified by reference to the likelihood of future events.
[50] [2021] HCA 15.
The claim of the applicant in the present case falls into the second category. There has been a loss of a commercial interest of value which is no longer available because of the breach of duty.[51] There was a permanent impairment of the value of the Deceased’s life insurance benefits when AMP Super failed to give her the right to elect to maintain those benefits. The value of those benefits was reduced to zero because the benefit was surrendered.
[51] Ibid at [42].
In these circumstances, I must make a realistic and reasoned assessment of a variety of circumstances in order to determine what the level of loss has been.[52] In assessing the value of the election, I have taken the following matters into account. First, the Deceased initially took out three different types of insurance benefits within the Fund: Total and Permanent Disability, Temporary Salary Continuance and the life insurance benefit. This indicates to me that she considered insurance important. It also indicates, in the case of the life insurance benefit, that she wished to provide a benefit for her estate. Secondly, the Deceased received a payment in respect of the Total and Permanent Disability and Temporary Salary Continuance benefits. This indicates to me that she was aware of the value of insurance. Thirdly, the Deceased continued to pay the premiums of the life insurance cover right up to the end of June 2019. Whilst it is true that these premiums were deducted automatically from her account, the annual member statement that was sent to the Deceased clearly showed the value of the life insurance cover and the amount of the premiums deducted for that cover. Fourthly, the election itself cost the Deceased nothing. The only ongoing cost was the cost of the premiums. Fifthly, during June-July 2019, the Deceased’s health was deteriorating. Having maintained the life insurance cover over a long period of time, it would be illogical to cancel or surrender that benefit at a time when it may lead to a payment being made to her estate. Sixthly, as at 30 June 2019, the Deceased’s superannuation account was in credit in the sum of $377,544.61, so the cost of the premiums was insignificant to the amount in the account.
[52] Ibid at [43] citing Vasiliou v Hajigeorgiou [2010] EWCA Civ 1475 at [25].
For the above reasons, I consider, when assessing the value of the lost opportunity, that no deduction should be made for the possibility that the Deceased, had she been given the right to elect, may have elected not to maintain the life insurance benefits. On the evidence before me, I consider that the Deceased would have elected to maintain the life insurance benefit.
Conclusion
The claim of the applicant against AMP Life is dismissed.
The claim of the applicant against AMP Super is upheld and the applicant is entitled to damages in the sum of $259,720.97.
I will hear the parties as to costs and interest.