LEUNG CHEE KUEN CAROL MACRADY v. AMERICAN INTERNATIONAL ASSURANCE CO (BERMUDA) LTD

DCCJ 2035/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2035 OF 2004

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J U D G M E N T

1.  Leung, the Plaintiff, joined AIA, the Defendant insurance company, as an insurance agent in 2002.  Their relationship lasted for less than a year and officially ended on 15 May 2003.  Leung claims compensation for wrongful termination.  AIA denies liability and counterclaims for the return of the advanced payments made to her when recruiting her.

Background

2.  Leung had years of experience as an insurance agent by the time when she joined AIA.  In March 2002, she was still an agent of another insurance company, Winterthur Life (Hong Kong) Limited (“Winterthur”).  So Kam Wing, Bernard (“So”), was her superior at the time.  So then moved to join AIA.  Before he did so, he asked Leung to consider joining his move.

3.  On 24 June 2002, a meeting was arranged with Leung by So, who was then a manager of AIA, to discuss her move from Winterthur to AIA.  Also attending the meeting were three other senior representatives of AIA: Chin Siu Lung, Peter, Senior District Director (“Chin”); Tse Wing Cheong, Garrick, District Manager (“Tse”); and Daniel Miu, Assistant Vice President (“Miu”).  Like So, Tse and Miu used to be with Winterthur, only that Tse and So joined AIA after Miu did.

4.  After the meeting, Leung signed an Application Form for Agent’s Contract dated the same date (“the Application”).  This was certified by So and Chin who also signed on the document.

5.  Leung then received from AIA a lump sum advanced payment of HK$239,472 representing her recruitment bonus in the sum of HK$78,000 and monthly bonus for the first 12 months in the sum of HK$161,472.  The payment advice from AIA shows that the payment was made on 2 July 2003.

6.  On 17 July 2002, Leung was de-registered as an agent of Winterthur and on 14 August 2002 registered as an agent of AIA.

7.  In relation to her recruitment, Leung had signed various documents.  Those not in dispute consisted of an undated set of Production Challenge Bonus terms covering the period of 1 year from 1 August 2002 (“the PCB Terms”), an undated Letter of Understanding (“the LOU”) and a Career Representative’s Contract dated 1 August 2002 (“the Contract”).  The Contract also had an addendum dated 1 August 2002 but its terms are not relevant to the dispute and therefore no particular reference was made to it.

8.  In March 2003, AIA informed Leung in writing of its consideration to terminate her with immediate effect.  On 23 April 2003, AIA informed Leung in writing that the Contract would be terminated with effect from 15 May 2003.

9.  On 26 June 2003, AIA sent a written demand to Leung for the repayment of the sum of HK$239,472 mentioned above with interest.

10.  In April 2004, Leung commenced the present action alleging wrongful termination by AIA.  As amended in August 2005, the pleaded claim is for:

(1)  a declaration that Leung was wrongfully terminated by AIA;

(2)  an order for AIA to deliver up the records of the policies secured by Leung for the purpose of calculating the outstanding commissions due to Leung by AIA;

(3)  an order for the payment of the commissions held by AIA wrongfully and in breach of the Contract;

(4)  damages for breach;

(5)  interest; and

(6)  costs.

11.  During the trial, Mr Wong for Leung abandoned her claim for the declaration.

12.  AIA alleges that Leung was terminated pursuant to the Contract.  Upon such termination, Leung allegedly became liable to repay the amounts advanced to her including the sum of HK$239,472 mentioned above with interest.  AIA bases its claim on a loan agreement also signed by Leung (“the Loan Agreement”) but this is in dispute.

13.  Broadly, there are the following major issues in dispute:

(1)  whether AIA’s termination of the relationship with Leung was wrongful;

(2)  whether Leung is entitled to the remedies sought;

(3)  whether the Loan Agreement was binding; and

(4)  whether AIA is entitled to the counterclaim.

The contractual documents

The LOU

14.  The LOU was signed by AIA, Leung (as the Applicant) and So together with Tse and Chin in consideration of Leung’s agreeing to sign the Contract and to remain as an insurance agent of AIA for a minimum of 3 years.  It contained, among others, the following terms:

Clause 1

“The Applicant agrees to sign the Contracts in September 2002 and to abide by all of the terms and conditions in the Contract.”

Clause 2

“The parties agree that this LOU is to be read as separate and independent contract from any other contracts that the Applicant may enter into with the Company.  In case of any conflict, this LOU shall prevail over the Contracts.”

Clause 5

Subject to Clause 6 and Clause 7 below, after the Applicant has (i) signed the Contracts, (ii) registered with the Hong Kong Federation of Insurers as an agent of the Company and (iii) commenced services as an agent of the Company (“the Commencement Date”), the Company agrees to pay the Applicant a Monthly Bonus in the sum of ……(HK$13,456.00) at the end of each month for a maximum period of 12 months subject to the Applicant’s meeting the following validation requirements in relation to the annualised first year premiums net after terminations for individual life and personal accident business written with the Company by the entire agency managed by and including the Applicant of an amount equal to …… (HK$520,000.00) (“the Amount”) at the end of the following dates (measured from the Commencement Date):-

Payment of the Monthly Bonus will cease immediately upon the Applicant’s failure to meet the above validation requirement on a timely basis for any reason ……”

Clause 6

“In the event that any of the Contracts is terminated for any reason by either the Applicant or the Company within twelve (12) months after the Commencement Date, the Applicant agrees to refund to the Company all of the Monthly Bonus paid in Clause 5 above from the Commencement Date up to the date of termination, immediately and unconditionally.”

Clause 7

“In the event that any of the Contracts is terminated for any reason by either the Applicant or the Company within the period from the first (1^st) year to third (3^rd) year after the Commencement Date, the Applicant agrees to refund a part of the Monthly Bonus paid in Clause 5 above to the Company immediately and unconditionally, as follows:-

Clause 9

“It is hereby mutually agreed and declared that nothing contained herein shall be construed to create the relationship of employer and employee whether expressly or impliedly between the Company and the Applicant ……”

Clause 11

“This LOU contains the entire agreement of the parties with respect to the subject matter of this LOU and supersedes all prior agreements between the parties, whether written or oral, with respect to the subject matter of this LOU.”

Clause 14(g)

“The Applicant hereby represents and warrants to the Company that (i) he has never, prior to his execution of this LOU, been declared or adjudged bankrupt by any court of law in Hong Kong or elsewhere or …… and (ii) he has no plan or intention of applying for bankruptcy in Hong Kong in six (6) months immediately after his execution of this LOU.”

(Emphasis added)

The PCB Terms

15.  By a memorandum dated 28 June 2002, i.e, 4 days after the meeting between Leung and the representatives of AIA, Chin was provided with the PCB Terms applicable to Leung.  This was signed by, among others, Leung and witnessed by Chin.

16.  The PCB Terms set out the production challenge bonus payable to Leung on the basis of the first year premiums for policies introduced by Leung during the 12-month period immediately after the Contract Date, i.e., 1 August 2002 (“FYP”).  In particular, if the FYP produced reached HK$520,000 (i.e., the target triggering the payment of the monthly bonus under clause 5 of LOU), production challenge bonus in the sum of HK$78,000 would be payable.

17.  This was subject to the following conditions:

“In the event that the Career Representative’s Contract is terminated for any reason by either yourself or the Company within the period from the first (1^st) year to third (3^rd) year after the Contract Date, you agree and undertake to refund a part of the Production Challenge Bonus paid to the Company immediately and unconditionally as follows:

18.  It should be noted that the monthly bonus payable for 12 months under clause 5 of the LOU became the advanced payment of the sum of HK$161,472 to Leung.  The production challenge bonus payable pursuant to the PCB Terms became the recruitment bonus in the sum of HK$78,000 paid to Leung in advance.  Both were calculated on the basis of the target FYP of not less than HK$520,000.

The Contract

19.  According to the LOU, Leung agreed to sign the Contract in September 2002.  But the document was apparently backdated to 1 August 2002.  By the Contract, Leung was authorised to procure and to transmit to AIA applications for insurance policies.  The Contract contains, among others, the following terms:

Recital

“The Company agrees to pay and the Career Representative agrees to accept as full and complete remuneration for his services under this Agreement while it is in force Commissions and Bonuses as specified in the Schedule of Commissions, which Schedule shall be subject to change at any time on written notice by the Company.”

COMMISSIONS

Clause 1

“The Career Representative shall be entitled to Commissions on any insurance where his name appears on the application for such insurance……”

RIGHT OF COMPANY TO TERMINATE AGREEMENT

Clause 16

“If the Career Representative shall …… or shall violate any of the provisions hereof …… this Agreement shall forthwith terminate without prior notice and all the Career Representative’s rights hereunder and under any agreements, including the rights to Commissions and Bonuses and whatever on all premiums payable thereafter shall forthwith cease.”

SET-OFF

Clause 17

“The Company shall have the right at all times to set off against any sum due to the Career Representative hereunder, any debt, obligation or liability due or owing by the Career Representative to the Company, and the setting off shall not create a cause of action against the Company that any sums of money are withheld from the Career Representative, when there is a debt or obligation of the Career Representative due to the Company.”

MODIFICATIONS

Clause 20

“All modifications to this Agreement shall have no force except as they are expressed in writing and duly executed by the Company and the Career Representative.”

COMPLIANCE WITH AGREEMENT

Clause 22

“(a)  This Agreement together with the Schedule of Commissions constitutes the basis of the entire contract between the parties herein.

(b)      This Agreement shall unless the Company otherwise consents in writing supersede, abrogate and annul any relation heretobefore held by the Career Representative with the Company ……”

DETERMINATION OF AGREEMENT

Clause 23

 “Subject to sooner determination of this Agreement by the Company in accordance with Clause 25 of this Agreement, this Agreement may be terminated without any reason thereof:-

(a)  By the withdrawal of the Company from the territory in which the Career Representative is operating;

(b) By either party upon 15 days’ notice in writing;

(c)  By the death of the Career Representative

……”

Clause 25

“This Agreement becomes automatically terminated without prior notice to the Career representative upon the occurrence of any of the following events:

a)    If the Career Representative does not meet training, production, persistency or other requirements in respect of the Career Representative’s operations which may be set by the Company from time to time.

b)    If the Career Representative breaches any of the Terms and/or Conditions of this Agreement or in any way whether expressly or impliedly fails to comply with any such Terms, Conditions or Provisions.

c)    In the event of fraud, dishonesty or breach of trust on the part of the Career Representative.”

CAREER REPRESENTATIVE NOT AN EMPLOYEE

Clause 26

“Nothing contained herein shall be construed to create the relation of employer and employee whether expressly or impliedly between the Company and the Career Representative.”

CESSATION OF CAREER REPRESENTATIVE’S RIGHTS UPON TERMINATION OF AGREEMENT

Clause 28

“Except for termination of this Agreement as provided under Clause 23(c) hereinabove, the Career Representative’s rights to commissions, bonuses or any other benefits or payment, excluding First Year Commission earned prior to termination, shall forthwith cease upon termination of this Agreement.”

GOVERNING LAW

Clause 37

“This Agreement shall be construed in accordance with the laws of the Hong Kong Special Administrative Region ……”

   (Emphasis added)

20.  In the Schedule of Commissions referred to in clause 22 of the Contract (above), there were the following provisions:

 “COMMISSIONS are payable only during the time the Agreement of which the Schedule forms a part is in full force.  Upon termination of the said Agreement, except otherwise provided under section 23 and 25 thereof, no further Commissions shall be paid.

……

YEAR END BONUS:-

The Career Representative shall be entitled to a Year End Bonus after having satisfied the Company’s First Year Commission requirement, or such other requirements as may be determined by the Company from time to time……

In the case of a newly appointed Career Representative, the Year End Bonus shall be calculated on a pro-rata basis with respect to the period between the date of appointment of the Career representative and the end of that accounting year.”

      (Emphasis added)

The termination

21.  Leung complains that the termination was wrongful.  Though she referred to “employment”, it is clear from the above contractual documents (clause 26 of the Contract; clause 9 of the LOU) and, in my view, the reality that there was no employment relationship between her and AIA.  By wrongful termination, Leung could only be referring to breach by wrongful repudiation of the Contract on the part of AIA.

22.  Termination of the Contract was governed by the terms of the Contract.  The Contract would be terminated without prior notice for any of the reasons stipulated under clause 25.  These reasons had to do with the conduct of the agent.  The Contract might also be terminated without any reason upon the occurrence of any of the events stipulated under clause 23.

23.  As mentioned above, by letters to Leung in March 2003, AIA suggested that it was considering terminating the Contract with immediate effect until further notice.  But it was by letter dated 23 April 2003 did AIA really and finally notify Leung of her termination with effect from 15 May 2003.

Clause 25(c)

24.  In none of these letters did AIA state any reason for the termination.  According to the pleading, AIA complains that Leung intentionally concealed her previous position as agent of Winterthur and the bankruptcy proceedings taken by Winterthur against her, namely, HCB 1713/2003.  AIA was referring to the information Leung provided in the Application.

25.  In the Application, the section “Employment History” required the applicant to fill in the full time jobs starting with the last employment.  In her case, Leung would have been expected to start by filling in “Winterthur”.  Leung filled in “Manulife” of which she was an insurance agent during the period between 1994 and 2002 and “Toyota” where she worked as assistant of director in 1994.  She left “Winterthur” out of mention.

26.  Under the section “Other Information” in the Application, Leung was required to state whether she had ever held an agent’s contract in other insurance company.  Leung answered in the affirmative and put down “Manulife”.  Again no mention was made of Winterthur.

27.  By signing the Application, Leung made the following declaration:

“I certify that the information given in this application is true and correct, and I agree that should this declaration be false in any respect, the Company is at its liberty to terminate the Agent’s Contract immediately.”

28.  AIA alleges that Leung was guilty of dishonesty and breach of good faith, in other words, clause 25(c) of the Contract.  For the purpose of clause 25(c), AIA needs to show that her failure to provide information about her position as an agent of Winterthur in the Application was conduct of dishonesty.

29.  Leung explained that the fact that she was an agent of Winterthur was known by all those who attended the meeting with her on 24 June 2003.  The exercise was said to be part of that to recruit the outgoing agents of Winterthur.  It was also said to be common for the up-line manager to join another insurance company together with his former down-line agents.  As mentioned above, like So, Tse and Miu used to be with Winterthur.  Prior to his moving to Winterthur, So had asked Leung to consider joining him at AIA.  Leung’s evidence is basically corroborated by So’s evidence in court.

30.  Further, according to Leung, there was detailed discussion of her past experience in the field during the meeting.  The discussion was necessary because AIA had to assess the amount of advanced payments to be made to recruit her with reference to her experience in the field.  As mentioned above, the advanced payments was apparently based on the target performance that Leung would be expected to be able to achieve during the first year of her joining.  When he cross-examined So in court, Mr Lam for AIA apparently acknowledged the practice of an insurance company making such advanced payment to an agent being recruited.

31.  By the time of the Application, Leung had been an agent of Winterthur for only 3 months and more importantly, without any business at all.  On the other hand, she had 8 years of experience as agent of Manulife.  Leung said when it came to filling in the Application, she asked but Chin indicated that it was not necessary to state her few months of experience as agent of Winterthur as the same would not be taken into account in her case.

32.  There is no evidence from AIA to effectively contradict Leung’s above evidence.  The authority of Chin, as Senior District Director, to make such representation on behalf of the AIA to Leung during the recruitment is also not issue.  In any event, Leung would have had no reason to doubt what Chin said.  Both So and, according to him in court, Chin also signed to certify the truth and correctness of the Application, notwithstanding that they knew Winterthur was not mentioned in the form.

33.  According to Leung, but for Chin’s indication, she would have seen no harm mentioning Winterthur in the Application.  But AIA now suggests that by not stating her experience as agent of Winterthur, Leung managed to conceal her indebtedness to Winterthur which led to the bankruptcy proceedings against her, something which might have adversely affected her application.

34.  The indebtedness apparently arose upon Leung’s leaving Winterthur just 3 months after her joining.  Winterthur then sought repayment of the advanced payments it made to her when recruiting her.  As mentioned above, Mr Lam for AIA cross-examined So on this and So agreed that that was the case. According to the statutory demand issued by Winterthur to Leung, the debt consisted of her special allowance, special loan and sign-on bonus in the total sum of HK$122,557.

35.  In her declaration in the Application, Leung authorised AIA to contact her previous employers, or any information source, and to obtain, disclose, and exchange any information with regard to her.  Without Winterthur on the list, AIA indeed did not have Leung’s authorisation to make enquiries with Winterthur about her and therefore the indebtedness owed to Winterthur.

36.  However So explained that Chin nevertheless knew Leung would owe Winterthur money upon her early termination of the contract with it.  The advanced payments that AIA made to recruit Leung would enable her to repay Winterthur.

37.  This was in fact what happened.  As mentioned above, Leung received the advanced payments in the total sum of HK$239,472 from AIA on 2 July 2002.  According to Winterthur’s statutory demand, Leung did repay Winterthur a sum of HK$61,278.50 on 4 July 2002.  Leung proceeded to de-register herself as an agent of Winterthur.

38.  Leung explained that she had no idea that Winterthur afterwards disputed the amount that she had to repay.  She said she had changed her residential address and come to know Winterthur’s demand only when she received the statutory demand.  The statutory demand mentioned above was issued on 6 December 2002 and served on Leung at AIA’s address.  The consequential bankruptcy proceedings were commenced on 27 January 2003.  Both were dated subsequent to her joining AIA.  Her declaration under clause 14(g) of the LOU (above) that she had never been declared or adjudged bankrupt was in fact true.

39.  In June 2003, Leung also settled the bankruptcy proceedings with Winterthur.  The relevant court order evidences that.  It should be noted that Winterthur in fact accepted Leung’s return as its agent in August 2003, notwithstanding the previous dispute.

40.  On balance, I accept the evidence of Leung and So.  I am not satisfied that Leung failed to disclose her position as agent of Winterthur or withheld the information from the Application with a view to concealing her indebtedness to Winterthur or out of dishonesty.  Clause 25(c) of the Contract is not satisfied.

Clause 23(b)

41.  Nevertheless, my above finding does not help Leung.  Pursuant to clause 23(b), the Contract might still be terminated by either party upon 15 days’ written notice.  This was what AIA did by letter dated 23 April 2003 for the termination to take effect on 15 May 2003.  This is the alternative basis for termination pleaded by AIA.  Termination by prior notice pursuant to clause 23(b) requires no reason.

42.  By their letters to Leung in March 2003, AIA was suggesting to terminate Leung with immediate effect.  The evidence is also that AIA also refused to accept any policy application submitted by Leung.  From the point of view of Leung, this could have been wrongful repudiation of the Contract.

43.  However Leung never purported to accept such repudiation.  As pleaded, Leung treated this as suspension of the Contract whereas 15 May 2003 was the actual date of termination of the Contract.  In other words, prior to that date, the Contract remained alive for the benefit of both parties.  AIA was indeed in a position to terminate the Contract pursuant to clause 23(b) by prior notice without reason.

44.  In his submissions, Mr Wong for Leung suggested that the Contract was expected to last for a term of 3 years.  This was true.  However, there is no pleaded issue of an implied term of the Contract that AIA would not prevent Leung from earning the commission or bonus under the Contract by terminating it.  In any event, there would be no basis for such implied term, in view of the contrary express terms of the Contract affording AIA the right to terminate the Contract by prior notice without reason during the term of the Contract.  AIA simply exercised that right.

45.  In the circumstances, the cases of Reigate v Union Manufacturing Company (Ramsbottom) Limited and Eldon Cop Dyeing Company Limited [1918] KB 592 (at 600-1) and the “prevention principle” in Kensland Realty Ltd v Whale View Investment Ltd [2002] 1 HKLRD 87 cited by Mr Wong for Leung are distinguishable from the present case.

46.  Mr Wong also referred to the hardship of early termination.  Not only would that deprived Leung of the prospect of earning commission and bonus, but Leung would also be subject to a one-year restraint after the termination from approaching policy holders introduced by her to AIA under clause 24 of the Contract.

47.  In my view, the alleged hardship cannot override or, as Mr Wong put it, qualify the express terms of the Contract.  Further, whilst the enforceability of a restraint of trade clause may be subject to its reasonableness, the enforcement of a contractual right to terminate does not become unreasonable because of the operation and the effect of the restraint of trade clause upon such termination.

Conclusion

48.  For the above reasons, I find that AIA had validly exercised its contractual right to terminate the Contract by prior written notice.  There is no question of wrongful termination as alleged by Leung.

The claim

49.  By pleading, Leung claims for the commission on existing policies introduced by her for April and May 2003 that she was entitled to prior to the termination of the Contract.  She asks for an order that such commission be paid to her.

50.  Leung also claims for damages to be assessed particularised as follows:

(1)  commission that she should have been entitled to from the applications for insurance introduced prior to AIA’s suspension of acceptance of applications submitted by her;

(2)  commission that she should have reasonably earned from the policies introduced and new policies that would have been introduced by her from the suspension mentioned above until her rejoining Winterthur in August 2003;

(3)  year end bonus that she might have reasonably earned from the suspension mentioned above until her rejoining Winterthur;

(4)  loss of business due to lowering of her reputation in the eyes of her customers; and

(5)  the monthly bonus for the 12 months that she would have been entitled to but for the termination.

51.  During the trial, Mr Wong for Leung abandoned the claim for (2) and (4) above.

52.  In the prayer of her pleading, Leung asks for an order that AIA do deliver up records of the policies secured by Leung for the purpose of calculating the outstanding commissions due to her.  Though not explicitly pleading it, Leung is effectively asking for an order for enquiry as to damages and the order for discovery being a pre-requisite to such enquiry.

Commissions from policies for April and May 2003

53.  Prior to 15 May 2003, the Contract was alive for the benefit and burden of both parties.  Leung claims (at para.8 of the Amended Statement of Claim) that the commission payable for April and May 2003 had been withheld from her.  This is however inconsistent with her statement (at paras.41-43) where she claimed commission for March 2003 as well.

54.  AIA issued monthly agent statements to its agents setting out the calculation of the commission payable.  The agent statements issued to Leung and available in the trial ended with the one for February 2003.  However, the corresponding monthly accounts in respect of Leung kept by AIA recorded the last payment to Leung in March 2003 and that payment has been withheld only since April (when the amount payable for that month became “balance carried forward”).

55.  While this part of Leung’s statement was not specifically challenged, what the AIA’s monthly accounts show was equally not in dispute.  Leung has the burden of proof and she is bound by her pleaded case.  Leung should confine her claim to that for the commissions for April and May 2003 as pleaded.

56.  Regrettably, trying to ascertain the amount of the commission payable is also far from straightforward.  Leung referred to the commissions for these months as stated in AIA’s accounts in respect of her.  Correctly, she pointed out that the commissions from various policies introduced by her amounted to HK$5,245.38, HK$5,007.02 and HK$5,853.70 for March, April and May 2003 respectively.  However these amounts apparently were not supposed to the actual amounts payable to her.

57.  Ip Ping Kau, a former supervisor of the Administration Department of AIA, gave evidence and referred to AIA’s contractual right to set off pursuant to clause 17 of the Contract (above).  Indeed the agent statements and the corresponding accounts of AIA show that adjustments were invariably made to the amounts of commission before the final net amounts payable were ascertained.

58.  As a result of the set off and adjustments, the amounts payable for March and April 2003 became HK$4,908.38 and HK$4,800.02 respectively.  In the monthly account for May 2003, deduction was made for, among others, transfer of “AGENT A/C” apparently on 31 May 2003.  This led to the resultant zero balance owed to Leung.

59.  Even if the alleged amount is payable but withheld by AIA, the set off provision under clause 17 of the Contract negatives the right of action against AIA, when there is a debt or obligation of the agent due to the company.  The obligation of Leung to AIA upon the termination of the Contract will be discussed below.

Commission from new policies prior to termination

60.  Though not clear from the pleading (para.10(a)), Leung’s claim also consists of that for commission from the new policies that she would have introduced to AIA during the 2 months prior to the termination of the Contract.

61.  First, Leung has the burden to establish the existence of the new policies that she might have introduced during this period.  Secondly and more importantly, AIA’s decision in respect such new policy applications would have depended on many factors including the individual circumstances of the applicants.  In my view, too much speculation is involved in this part of the claim.

Commission after termination

62.  Mr Wong relied on Roberts v Elwells Engineers [1972] 2 QB 586 where the parties agreed that the terminated agent should have been entitled to 3 months’ notice of termination.  The question was whether the agent should also be entitled to the commission which ought to have accrued to him but for the wrongful termination.  The court there found that the principal could not deprive the agent of his right to commission by terminating the agency (see 595C-D).

63.  However, in the present case, the recital, clause 28 and the Schedule of Commission of the Contract (above) expressly provided that commissions were payable only during the time the Contract was in force.  The rights to commissions, bonuses or any other benefits or payment, even in respect of policies already introduced by Leung, should forthwith cease upon termination of the Contract.

64.  In view of the above finding that AIA validly terminated the Contract with effect from 15 May 2003 and the provisions governing her right to commission and bonuses upon termination as mentioned above, I find that Leung is not entitled to claim any future commission for the policies introduced by her prior to her termination.  Like the case of Reigate (above), the case of Roberts cited by Mr Wong is distinguishable from the present case.

Year-end bonus

65.  The Schedule of Commission (above) provided that Leung should be entitled to a year-end bonus after her satisfying the First Year Commission requirement.  Leung is claiming the year-end bonus on the basis that she should have been able to meet the requirement, but for the pre-mature termination of the Contract.

66.  According to Ip in court, the financial year of AIA ended in November when the year-end bonus should be calculated and become payable.  According to the agent statements and AIA’s corresponding accounts in respect of Leung, year-end bonus (in the total sum of HK$9,262.10) was indeed taken into account in the payment to Leung in November 2002.  The question is whether Leung has a right to the payment of year-end bonus for her service since then until her termination in May 2003.

67.  Clause 28 of the Contract (above) provided for the termination forthwith of the agent’s right to bonuses or any other benefits or payment upon the termination of the Contract.  The only exception was expressed to be the first year commission earned prior to the termination.  In the circumstances, the answer to the above question should be in the negative.

Monthly bonus

68.  Leung claims to be entitled to the 12 months of monthly bonus of HK$13,456 each or the total sum of HK$161,472.  But for the early termination, she would have allegedly met the validation requirement and become entitled to the amount.  As the amount was already paid to her in advance when she joined AIA, Leung could only be meaning that she is entitled keep the amount.

69.  Leung gave evidence that after joining AIA, she had been informed that the validation requirement for the entitlement to the monthly bonus was reduced by 30% from HK$520,000 to HK$364,000.  While this was not really contradicted by AIA, clause 20 of the Contract (above) stipulated that all modifications to the Contract had no force except for their being expressed in writing and duly signed by the parties.

70.  In any event, whether what Leung said was true, in my view, does not help her.  As mentioned above, according to clause 28 of the Contract, her entitlement to bonuses shall forthwith cease upon termination of the Contract on 15 May 2003.  Even assuming that Leung would have met the validation requirement and become entitled to the monthly bonus by the time of termination, clause 6 of the LOU would have required her to refund to AIA all the monthly bonus paid up to the date of termination, immediately and unconditionally.

71.  The undisputed fact was that the 12 months of monthly bonus has already been paid to Leung in advance on the assumption that she would be expected to meet the validation requirement for such during the first 12 months of her service.  However upon the valid termination of the Contract during the first year of Leung’s service, she has no basis for contending that she is entitled to keep the sum paid.  On the contrary, she became under the obligation to repay the sum to AIA.

Discovery and enquiry as to damages

72.  The order for discovery as a substantive relief is odd in the absence of an explicit claim for an enquiry as to damages.  There has been no direction as to split trial of the issues of liability and quantum either.  In any event, in view of the above finding, the basis of the projected claim for future or unknown benefits that Leung could have derived from the Contract but for its early termination does not exist.  Nor does the basis for an order for discovery for an enquiry as to such damages.

Conclusion

73.  For the above reasons, I find that the claim is not proved.

The counterclaim

74.  AIA claims for the repayment of the following:

(1)  the advanced payments in the total sum of HK$239,472 with interest pursuant to the Loan Agreement; and

(2)  commission for the month of June 2003 paid in respect of policy B024210944.

The Loan Agreement

75.  Like the LU, the Loan Agreement was undated.  It contained, among others, the following terms:

“I, the undersigned, LEUNG CHEE KUEN, …… in consideration of [AIA] granting a cash loan to me for the sum of HK$239,472 (“the said loan”), hereby agree to repay the said loan at the end of one year from the date of execution of the Contracts (“the end of first contract year”).  I agree that the Company shall have the right to set off the said loan against any sum due to me by the Company at the end of first contract year.  I further acknowledge and agree that, the said loan will include an advancement of all of Monthly Bonus and Production Challenge (if any) paid to me under the Letter of Understanding I have signed with the Company, I therefore agree and acknowledge that the Monthly Bonus and Production Challenge payable to me during the first contract year do not need to be paid in accordance with the Letter of Understanding and, shall be withheld by the Company.  An annual interest rate of Prime or 7%, whichever is the higher, will be charged against the balance of the said loan at the end of first contract year.

I hereby also agree to repay the balance of the said loan together with any interest owing to the Company immediately and unconditionally upon the occurrence of the earliest of any of the following events:

1.    if I fail for any reason to register with The Hong Kong Federation of Insurers or sign the Career Representative’s Contract and …… (……”the Contracts”) to become a Career Representative …… of the Company; or

2.    if I fail to repay the said loan in a timely fashion and/or in accordance with the terms hereof; or

3.    upon termination of the Contracts with the Company.

 If the said loan is not repaid as provided above, annual interest rate of Prime + 5% will be charged against the balance of the said loan then owing to the Company.  The total amount so owing shall constitute as an indebtedness to the Company.

……”

      (Emphasis added)

76.  According to the pleading, Leung’s primary contention is that she had no knowledge of the Loan Agreement until discovery.  Leung in her statement suggested that the document was not seen or signed by her.  In his opening, Mr Wong for Leung suggested in court that Leung did not remember signing the document but more importantly confirmed that there was no challenge against the authenticity of this document.  However, when Leung gave evidence, she seemed to suggest that the signature on the document was not hers but a forgery.  Yet she has an alternative case that the Loan Agreement, if enforceable, was not intended to be strictly enforced as such.

77.  Apart from Leung, Tse also appeared to have signed the Loan Agreement.  Tse was not called as a witness.  Ip does not have personal knowledge about how Leung was recruited.  But she was apparently not surprised by the Loan Agreement.  She believed or inferred that the document was signed when the advanced payment of the recruitment and monthly bonuses were made to Leung on 2 July 2002.

78.  The Loan Agreement did refer to the bonuses so paid.  In fact, the whole point of the Loan Agreement seemed to be for Leung to acknowledge the advanced payment of the bonuses as a cash loan.  This probably reflected the concern of AIA then about how to recoup the amount from Leung in the event of her failing to enter into the Contract or to register as AIA’s agent or any early termination of the Contract.  In the trial bundle was also a written guarantee of the loan signed by others present at the meeting on 24 June 2002 but neither party seemed to bother to deal with it during the trial.

79.  Considering the circumstances surrounding the advanced payment of the bonuses prior to the entering into of any contract between the parties, I would not be surprised that AIA was minded to get Leung to sign the Loan Agreement.

80.  But even assuming that Leung did sign the Loan Agreement, I am of the view that the same is unenforceable.  The reason is that the advanced payments were never by nature a cash loan as stipulated in the document, especially after the Contract was concluded.

81.  After the Contract had been concluded together with the signing of the PCB Terms and the LOU, the Loan Agreement could hardly be enforced in isolation in accordance with its terms.  According to the Loan Agreement, it was term loan for 1 year repayable with interest without qualification.  But according to the Contract and particularly the LOU, the bonuses paid in advance would not have been repayable, if she had remained as an agent of AIA and met the performance targets.  In court, Ip confirmed her similar understanding of this.

82.  Indeed the Loan Agreement provided for immediate and unconditional repayment in any of the events specified including termination of the Contract.  But this was already covered by the terms of the Contract, the PCB Terms and the LOU.  It seems that nothing contradicts Leung’s case that the Contract and the LOU were signed in about September 2002.  In that case, clause 11 of LOU (above) would have the effect of superseding the Loan Agreement in respect of the same subject matter, namely, circumstances in which the bonuses paid in advance would become immediately and unconditionally repayable.

83.  For the above reasons, I refuse to enforce the Loan Agreement, even if Leung did sign it.

AIA’s entitlement

84.  As a fallback in the event that the Loan Agreement is not enforceable, Mr Lam argued that in the absence of any presumption of gift, the payment of money prima facie imports an obligation to repay it.  He was referring to Seldon v Davidson [1968] 1 WLR 1083 where the court held that in such case, the burden would be on the party alleging advancement to prove that the money was not repayable.

85.  To begin with, it is trite that deciding a case by reference to the presumption should only be the last resort.  More importantly, as AIA chose to run a positive case of enforcement of the Loan Agreement in its counterclaim, the court has to decide on the basis of the evidence whether this case is established.  The reality was that the payment was never a mere payment without an intention of gift but was made in contemplation of Leung agreeing to enter into the Contract to become an agent of AIA and her being able to earn such bonuses during the first year of her service.  The presumption has no relevance here.

86.  Having said that, I should make clear that by virtue of the PCB Terms and the LOU, AIA is indeed entitled to the repayment of the recruitment and monthly bonuses paid in advance immediately and unconditionally upon the termination of the Contract on 15 May 2003.

87.  Insofar as the monthly bonus is concerned, as discussed above, the repayment provisions under clauses 6 and 7 of the LOU are clear.  Insofar as the production challenge bonus is concerned, the PCB Terms provided for the refund of 67% of it if the Contract was terminated within the second year and 33% of it if the Contract was terminated within the third year.  The proportion was in line with clause 7 of the LOU in respect of the refund of the monthly bonus.  The PCB Terms did not stipulate the refund of the production challenge bonus if the Contract was terminated within the first year of Leung’s service.  But properly construed, the terms would not make sense if she would be entitled to be paid or, if already paid, to keep 100% of the bonus if the Contract was terminated even within the first year.  Leung’s allegation of her right to keep this amount as a one-off payment come what may is rejected.

88.  The difficulty of AIA is that it is equally bound by its pleaded case which rests solely upon the enforcement of the Loan Agreement to recoup the bonuses paid in advance.  I have to conclude that its pleaded claim fails.

Commission for June 2003 paid in respect of policy B024210944

89.  This part of the counterclaim was not dealt with by either party seriously, if at all.  The only letter of demand from AIA to Leung tabled before the court is one dated 26 June 2003 where this item did not exist.  There is no material, documentary or otherwise, in respect of this before the court.  This part of the counterclaim is not established.

Order

90.  In the circumstances, both the claim and the counterclaim have to be dismissed.

91.  In view of the above findings and conclusion, I think it is only fair to make no order as to costs of this action.  I make a nisi order to that effect.  Leung’s own costs shall be taxed in accordance with legal aid regulations.  In the absence of application within 14 days regarding the costs order, the nisi order shall become absolute.