NEW YORK LIFE INSURANCE WORLDWIDE LTD v. LIN MAN CHI ANDY

CACV 56/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 56 OF 2010

(ON APPEAL FROM HCA NO. 895 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a judgment of Deputy High Court Judge Carlson given on 25 February 2010. The matter before the judge was an appeal from the master who had given judgment under Order 14 for the sum of HK$987,684.94 and interest, being a small part of the amount claimed in this action. The judge dismissed the appeal. At the conclusion of the hearing of this appeal, this court allowed the appeal, made an order dismissing the application for summary judgment and made an order for costs in favour of the defendant in this court and in the courts below.

Background

2.  The plaintiff is an insurance company specialising in providing life insurance policies.  On 1 June 2006 the plaintiff wrote to the defendant offering to appoint him as an Agency Director for the purpose of marketing and selling the plaintiff’s insurance products and for carrying out services to the plaintiff’s policyholders.  On 10 July 2006 the defendant signed that letter agreeing to be so appointed.  He also signed an Agent’s Agreement as well as a Manager’s Agreement.

3.  Under clause 3 of the letter dated 1 June 2006 the defendant was eligible for Finance in the terms of what was referred to as “Addendum 1-Financing Scheme” (“the Addendum”).  The terms of that document are important.  It provides that the defendant would be entitled to a Special Allowance, a Personal Confirmation Bonus, an Additional Personal Confirmation Bonus, a Team Confirmation Bonus and an Additional Team Confirmation Bonus, subject to sales criteria having been met.

4.  The provisions regarding the Special Allowance were expressed to be subject to clauses 1.1 and 5 of that document.  The allowance was payable when the following conditions were met namely:

“(i)  the Agent’s Agreement is in force at the time of payment;

(ii)  you are in full compliance with all provisions of the Agent’s Agreement;

(iii)  your personal LIMRA’s 13-month persistency of 85% will be attained at the end of each production month; and

(iv)  your Personal Production Validation Percentage (as defined in Clause 1.1 below) for the relevant production month shall not be less than 50%.”

5.  There is no dispute that the relevant provisions were met, that the defendant clearly must have achieved the rate of commissions which entitled him to the Special Allowances and that they were paid.

6.  There were similar provisions in clause 2 relating to Personal Confirmation Bonus and Additional Personal Confirmation Bonus and in clause 3 relating to Team Confirmation Bonus and Additional Team Confirmation Bonus.  These were all tied to performance criteria in terms of commission levels achieved.  Seemingly the required levels of sales were achieved because the amounts of these Bonuses are the subject of the claim in this action.

7.  Matters proceeded until 4 March 2008 when the plaintiff sent the defendant a letter complaining that his performance in the past six months had been below satisfactory levels and setting targets, which the defendant, for his part, claims were unreasonable.  Despite that, on 3 July 2008 the plaintiff served a notice, terminating the Agent’s Agreement with effect from 13 July 2008.  No reasons for the termination were given in that letter; it suffices to observe that clause 16.1 of the Agent’s Agreement provided that the agreement may be terminated by either party giving not less than seven days notice.

8.  The plaintiff’s claim in this case is based on clause 5.1.1 of the Addendum.  That paragraph reads as follows:

“5.1  In the event of the Agent's Agreement is terminated for any reasons other than by reason of ill-health and disability that will, in the Company’s view, prevent you from discharging your duties as an agent, subject to Clauses 1, 2 and 3 of the Addendum you will be required to repay such proportion as provided below of the Personal Confirmation Bonus, Additional Personal Confirmation Bonus, Team Confirmation Bonus and Additional Team Confirmation Bonus (“Bonuses”) and Special Allowance already received by you under the terms of this Letter and Addendum together with costs of recovery:

5.1.1  All (100%) the Bonuses and Special Allowance received if the date of termination is within the period of 2 years after the Last Finance Payment Date or the period of 3 years after the Effective Date, whichever is longer; ...

…….

For the avoidance of doubt, your(sic) are not required to repay any Bonuses and Special Allowance received if the Agent’s Agreement is terminated at any time after the expiry of the period of 3 years after the last Finance Payment Date or the period of 4 years after the Effective Date, whichever is longer.”

9.  What is at issue on this appeal is the meaning of clause 5.1.  In considering this clause, the judge came to the view that there was no alternative construction to clause 5.1 other than:

“It plainly means that save in cases of ill-health and disability which prevent an Agent from discharging his duties, in all other cases of termination, the commissions and bonuses must be repaid.”

10.  Since this is an application for summary judgment under Order 14 it is undesirable for this court to decide anything further than is necessary for the determination of this appeal.  Nevertheless, I find it difficult to consider that there could be any other construction of clause 5.1 other than that the requirement to repay the Special Allowance and Bonuses only applies when the Agent’s Agreement is terminated for any reasons that, in the Company’s view, prevent the agent from discharging his duties.  Furthermore that requirement to repay the Special Allowance and Bonuses does not apply where the Agreement is terminated by reason of ill-health and disability, albeit the agent is, in those circumstances, prevented from discharging his duties.  That appears to me to be the proper construction of the sentence as a matter of its natural and ordinary meaning as well as the grammatical construction.

11.  The construction that I consider correct as a matter of natural meaning also seems to me to have the advantage of according with common sense.  If the circumstances pertaining to an agent are such that he is unable to further discharge his duties he has to repay bonuses but, if he is ill or disabled, then he does not.  To put any other construction on this clause would mean that the plaintiff would be in a position to induce the agent to sell sufficient policies by proffering financial incentives which bring him within the criteria set out in clause 1.1 and clauses 2 and 3 of the Addendum and then, having done so and secured a large number of policies on the strength of that, to terminate the Agreement and reclaim all the allowances and bonuses which have been earned as a result of the agent having achieved his targets.

12.  Mrs Ismail, who appeared on behalf of the plaintiff in this court, submitted that the intent of the Addendum was to encourage the Agents to achieve what might be called “high production levels” and to encourage a long-term relationship with the agency.  That may be so but the Special Allowance, Personal Confirmation Bonuses and Team Confirmation Bonuses under clauses 1, 2 and 3 of the Addendum were tied to performance in the first year of the Agency.  That does not in itself indicate long-term performance levels.  Neither does it encourage a long-term relationship.

13.  In view of the meaning, which at present, appears to me to be the correct meaning of clause 5.1, there would not appear to be grounds for the plaintiff to obtain summary judgment.  It was for these reasons that the appeal was allowed.

Hon Le Pichon JA:

14.  I agree and have nothing to add.