AXA SIME ASSURANCE LTD v. WU YING YU, HELEN t/a FU TAT INSURANCE CONSULTANTS CO

-----------------

---------------------------------------------------

REASONS FOR JUDGMENT

---------------------------------------------------

1. This is an appeal against the Summary Judgment entered by the Master against the Defendant. At the conclusion of the hearing, I dismissed the appeal with costs and said that I would hand down my Reasons later. I now hand down my Reasons.

2. The Defendant worked as an insurance broker for the Plaintiff insurance company and in return she was to earn 30% of the premium collected by her from customers who agreed to take out insurance policies with the Plaintiff. What the Defendant did was to solicit motorists customers who then filled in the Plaintiffs proposal forms. The Defendant submitted these proposal forms to the Plaintiff and upon acceptance, the Plaintiff would issue the appropriate Policies and the Defendant would collect from the customers the appropriate premiums, keep 30% for herself and pay the other 70% to the Plaintiff. Every month, the Plaintiff sent to the Defendant a monthly statement showing the state of accounts between the Plaintiff and the Defendant.

3. It would seem that the Defendant by mid 1995 had collected a lot of premiums which she had not accounted to the Plaintiff and in August 1995 there was a meeting attended by the Defendant herself and her husband who was said to be also a director of the Defendant company. On the Plaintiffs side, many of the senior staff were also at the meeting. This meeting resulted in a Letter of Understanding dated 17th August 1995 ("Agreement") which was signed by the Defendant and her husband. By that Agreement, the Defendant admitted that some $2.5 million Premium collected was owing to the Plaintiff and agreed to repay the said sum by 5 stated instalments at the end of August, the end of September, the end of October, the end of November and the end of December 1995. Total amounts of money falling somewhat short of the first and second instalments were paid to the Plaintiff. Then no payment was made for the end of October 1995 instalment, which led to the Solicitors for the Plaintiff writing in November 1995 to the Defendant demanding that payment, pursuant to the Agreement. No payment was made by the Defendant and therefore proceedings were started by the Plaintiff against the Defendant.

4. The Affidavit evidence filed by the Defendant in resistance to the Order 14 application of the Plaintiff, does not show any bona fide specific defence but instead resorted to general allegations of errors of the Plaintiff such as:-

But general allegations which are not supported by concrete proof and not particularised in relation to each policy, remain mere assertions and do not provide the Court with credible evidence of bona fide defence to any particular claim for premium under that particular policy. Having regard to the nature of the make - up of the claim of the Plaintiff in this case. namely outstanding hundreds of premium amounts collected by the Defendant in relation to hundreds and hundreds of particular policies which had not been paid by the Defendant to the Plaintiff (see pages 48-68 of the Bundle), it is incumbent upon the Defendant to condescend on particulars of defence in relation to each premium amount claimed by the Plaintiff.

5. When the Defendant did refer to specific policies in her Affirmation and under Exhibits "HW-1", "HW-2", "HW-3". "HW-4", "HW-5" and "HW-6", these were all answered conclusively by the Plaintiffs Fung 2nd Affirmation and by respectively Exhibit "2FCW-1", "FCW-2", "FCW-3", "FCW-4", "FCW-5" and "FCW-6". Save for the adjustment of some minor few thousand Dollars which were agreed to by Mr. Fung in his Second Affidavit, there is really no basis to suggest that these particular allegations of the Defendant give rise to any defence.

6. A simple reading of the Agreement tells the story quite clearly, namely that the Defendant agreed to and admitted the large sum owing to the Plaintiff under all these Policies issued by the Plaintiff and for which the Defendant had collected the premiums from the customers. Mr. Chung tried to suggest that the Agreement could not be accepted and that the Agreement was signed by the Defendant and her husband under duress or in circumstances which should relieve the Defendant from responsibility for such Agreement. In my view the story told by the Defendant is simply incredible and I have no doubt that the Agreement was signed in perfectly proper circumstances. In fact the Defendant paid pursuant and subsequent to the Agreement and there was not a word of complaint anywhere in the correspondence to suggest that no money was properly owing or that the Agreement did not properly evidence what the parties had genuinely agreed. In my judgment, the Defendant has no defence to the claim. The Master had rightly entered judgment for the Plaintiff and this appeal of the Defendant must be dismissed with costs.