Smith v Associated Dominions Assurance Society Pty Ltd (In Liquidation) [1956] HCA 58

95 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

'SMITH . A eatcie ' ' - . . APPELLANT ;

AND

ASSOCIATED DOMINIONS ASSURANCE SOCIETY PROPRIETARY LIMITED $ Responpenr.

(In Ligurpation)

Life Assurance Policy—Premiums—Payment—Conditions 'of policy—Default in A CvoneAs

payment—Policy, voidable or void—Election to determine policy—Attitude of parties—A ppeal—Jurisdiction of High Court—Life Insurance Act 1945-1953, Pt. III, Div. 8, 8. 67 (3) (4).

1956. Qe

Sypney,

A society, on 15th March 1950, issued a policy of insurance on the life of Sept. 11;

G.'s husband, S., who died on 4th August 1953. The society is in liquidation and G., who is also the executrix of S., brought an appeal from the rejection by the liquidator of her proof of debt in respect of the sum of £2,300 alleged to have become payable under the policy, the ground of rejection being that the policy had become "null and void". The policy specified a yearly premium of £44 9s. 4d. which was expressly declared to be due and payable "at and for the time or times stated " in an appended schedule which indicated that the date of payment of premium was " 15th March " and that the duration of payments of premium was " until the death of the assured". Endorsed conditions of the policy provided : 1. that if any premium be not paid on the due date or within thirty days thereafter the policy should be null and void and any premiums paid in respect thereof should be retained by the society unless death occurred within such thirty days in which case the overdue premiums and the unpaid premiums for the whole of the then current year of assurance should be deducted from the amount payable by the society under the policy ; 2. for the revival of the policy within two years of default in payment of the premium on such terms as the directors considered reasonable 2 and 3. in the case of policies which had been at least three full years in force, for setting off the surrender value of the policy against overdue premiums. 8. paid the specified yearly premium in 1950 and 1951, but in 1952 he failed to make any payment on the due date or within thirty days thereafter whereupon the society noted in its "' Lapse Register" that the policy had "lapsed", but notification thereof was not given toS. Some days after that notation had been made, on 22nd April 1952, 8. paid to the society £11 3s. '2d. on account of the outstanding premium and sums of £11 2s. 4d. and £11