Phoenix Motor Management LLC v Raji Priscilla (WA-27NCC-3-01/2024)

This is a judgment delivered after a full trial. The Plaintiff had only one witness. After his testimony was given, learned counsel for the Defendant chose not to cross examine him. The Defendant herself chose not to testify and she did not procure any other witnesses to testify on her behalf.

Counsel were directed to make oral submissions immediately after trial. A short interval was given to prepare for the oral submissions.

After hearing oral submissions, judgment was entered in favour of the Plaintiff.

The Plaintiff is a yacht management company that specialises in the management and operation of private yachts, including the yacht MY St Catherine (“the Vessel”).

On 7.7.2023, pursuant to the instructions from the Owner of the Vessel, the Plaintiff requested the Defendant to arrange Hull & Machinery (H&M) and Protection & Indemnity (P&I) insurance coverage for the Vessel.

On the 8.7.2023, the Defendant confirmed that she had managed to procure an insurance coverage from Sun UW MGA s.r.o (“the Underwriter”), through Marine Insurance Services SIA Sucursal en España (“the Broker”).

Upon the Defendant's provision of the proposed insurance policy dated 8.7.2023 and 11.7.2023, the Plaintiff proceeded to remit 50% of the insurance premium amounting to EUR 84,562.50 (“50% Payment”) to the Defendant for the arrangement of the insurance coverage.

However, the Plaintiff subsequently discovered, following the Owner’s decision to secure an alternative insurance coverage, that none of the insurance policies proposed to the Plaintiff by the Defendant had ever been incepted by the Underwriter.

The Plaintiff was further informed by the Broker that neither the Underwriter nor the Broker had received any portion of the 50% premium payment from the Defendant to secure the said insurance coverage.

The Plaintiff subsequently requested that the purported policies be cancelled and sought a refund of the premium paid.

While the Defendant agreed to cancel the policies, she refused to return the 50% Payment alleging that the Plaintiff had failed to make the balance payment within a so-called "cooling-off" period. The Defendant further declined to disclose the whereabouts of the 50% Payment, claiming that the 50% Payment were no longer within her control.

Following the Plaintiff’s discovery application, the Defendant was order by this Court on 23.4.2025 to produce to the Plaintiff the following documents (“the Discovery Order”): a) all written correspondence, emails, messages, quotations, agreements, and contracts with the Broker, concerning the placement of the Plaintiff’s insurance coverage for the Vessel; b) all written correspondence, emails, messages, quotations, agreements, and contracts with the Underwriter, concerning the placement of the Plaintiff’s insurance coverage for the Vessel; c) all bank statements between the period of 11.07.2023 until to date showing in flow and out flow of funds from the Defendant’s bank account in respect of the 50% Payment received by the Defendant; d) all written correspondence, emails, bank instructions, statements between the period of 11.07.2023 until to date in respect of the 50% Payment remitted by the Defendant to any party for the purposes of placing insurance for and on behalf of the Plaintiff and if not for that particular purpose, where the Defendant transferred the 50% Payment received; and e) all bank instructions, statements in the name of the Defendant, from the period of 11.07.2023, when the Defendant received the 50% Payment from the Plaintiff until to date, as well as records of bank transfers or expenditures made by the Defendant from the 50% Payment

Notwithstanding the Discovery Order, the Defendant has failed and or refused to produce any of the documents ordered thereunder.

At the trial, Mr Ian Stephen Harris (PW1), the Chief Executive Officer of the Plaintiff testified as follows: a) On 30.6.2023, at the request of the Owner, PW1’s colleague, one Mr James Archer and PW1 had approached the Defendant, to arrange the H&M and P&I insurance coverage for the Vessel to facilitate its mobilization; a) In response, the Defendant confirmed that she could arrange the requested coverage at a total gross premium of EUR 169,125.00; 5 b) Relying on this confirmation, the Plaintiff had proceeded with the arrangement of the proposed insurance coverage; c) The proposed policy terms were provided to the Plaintiff on 8.7.2023 and were subsequently revised on 11.7.2023 and again on 20.7.2023 (collectively referred to as "the Proposed Insurance Policy"); d) The Defendant made arrangement through the Broker who acted as the insurance broker for placement of the insurance underwritten by the Underwriter; e) On 11.7.2023, the Plaintiff had requested via email that the total insurance premium of EUR 169,125.00 be paid in two instalments, with the first payment to be made on 11.7.2023 and the second payment due by the end of that week. To facilitate this arrangement, the Plaintiff requested the Defendant to issue two separate invoices; f) This arrangement was agreed upon by the Defendant, and she had subsequently issued two invoices, each in the amount of EUR 84,563.50, referenced as INV-SMCT-19056 and INV-SMCT-19057; g) The first 50% payment of EUR 84,563.50 i.e the 50% Payment, for Invoice No. INV-SMCT-19056, was then made on 12.7.2023 via bank transfer to the Defendant's bank account with the following details: Bank Account Number: 3230137907 Beneficiary Name: Smart Marine Global. 6 h) The outstanding balance of EUR 84,563.50 (“Outstanding Balance”) for Invoice No. INV-SMCT-19057 was not remitted to the Defendant as the Plaintiff was subsequently informed by the Owner that alternative insurance coverage for the Vessel, had been arranged through Marine Underwriting Services; i) Following this, the Plaintiff had instructed the Defendant to cancel the insurance arrangement and requested a refund of the 50% Payment that had already been made; j) However, despite the Plaintiff’s request for a refund for the 50% Payment paid to the Defendant less a pro-rata deduction for the time on risk, the Defendant had refused to refund the 50% Payment which had been remitted to her, asserting that since the Outstanding Balance of the premium was not paid during the cooling-off period, the insurance policy was cancelled. With this, the Defendant had alleged that the 50% Payment was no longer within her control and that the Plaintiff was not entitled to a refund; k) However, the Plaintiff’s investigation revealed that the Defendant was not an intermediary approved by Bank Negara and that she had withheld the 50% Payment, as the funds were never transferred to the Underwriter or Broker despite the cancellation of the insurance policy; l) Further and significantly, Juris Zacs, the Branch Manager of the Broker, had confirmed via email on 2.9.2024 that the insurance policies had been cancelled. He also stated that 7 neither the Broker nor the Underwriter had received any payment from the Defendant for the inception of the policy.

Learned counsel for the Defendant did not cross examine PW1 on his testimony at all. Further, the Defendant also chose not to testify and neither did she procure any other person(s) to testify on her behalf.

In her Defence, the Defendant claimed that she never traded as a sole proprietor under the name and style of ‘Smart Marine Consultancy and Trading’ which was identified in the Plaintiff’s original Writ of Summons but instead as ‘Smart Marine Global’.

However, the Plaintiff has since amended the Writ and the Statement of Claim to identify the Defendant as ‘Raji Priscilla trading as a sole proprietor under the name and style of ‘Smart Marine Global’. The Defendant never appealed against the order dated 8.4.2024 permitting the aforesaid amendments. [18] With the amendments aforesaid, the Defendant’s objection to the inaccuracy of the description of the Defendant’s business is no longer tenable.

In her Defence, the Defendant had admitted that Smart Marine Global had issued an invoice to the Plaintiff and that the 50% Payment was paid by the Plaintiff to Smart Marine Global. This is clear from paragraph 5 of the Defence.

The Defendant pleaded that the Proposed Insurance Policy had in fact been activated from 8.7.2023 to 27.7.2023 and by reason of the same, it would be unjust for the Plaintiff to seek a refund of the 50% Payment.

However, the Defendant not only did not challenge PW1’s testimony, she also chose not to testify at the trial. Neither did the Defendant procure any other persons to testify in support of her plea. The aforesaid effectively means that PW1’s testimony remains uncontradicted and unchallenged.

Further, as a result of the Defendant’s curious approach to the trial, no evidence was adduced to show that the Proposed Insurance Policy had in fact been activated from 8.7.2023 to 27.7.2023 as pleaded in the Defence. Neither was there any evidence to show that the Defendant had paid over the 50% Payment to the Broker or for that matter, to any other persons by the Defendant after she had received the same from the Plaintiff. In this regard, this Court also took cognisance of the fact that the Defendant has stubbornly refused to disclose the documents under the Discovery Order which would show the flow of the 50% Payment. An adverse inference is drawn against the Defendant for her refusal to produce the documents.

The Defendant’s assertion to the Plaintiff when demanded to refund the 50% Payment which had been remitted to her that since the Outstanding Balance of the premium was not paid during the cooling-off period, the Proposed Insurance Policy was cancelled was also not established by any evidence before this Court. On the 9 contrary, based on the testimony of PW1, the Outstanding Balance for Invoice No. INV-SMCT-19057 was not remitted to the Defendant because the Plaintiff was subsequently informed by the Owner that alternative insurance coverage for the Vessel had been arranged through Marine Underwriting Services.

Significantly, PW1 also testified that the Branch Manager of the Broker had confirmed via email on 2.9.2024 that the Proposed Insurance Policy had been cancelled. He also stated that neither the Broker nor the Underwriter had received any payment from the Defendant from the inception of the policy. His testimony was never challenged.

The aforesaid means that the Defendant’s claim that the 50% Payment was no longer within her control and that the Plaintiff was not entitled to a refund is untenable.

For the above reasons, this Court has no hesitation to grant judgment to the Plaintiff in the following terms: a) the Defendant to pay the sum of EUR 84,562.50 or its equivalent in Ringgit Malaysia being the 50% policy premium paid by the Plaintiff to the Defendant within 14 days from the date of this judgment; b) the Defendant to render the Plaintiff a full and complete account of the sum of EUR 84,562.50 received if no payment 10 is made as per the order in (a) above within 30 days after the expiring of the said 14 days stipulated by affirming the affidavit exhibiting the relevant bank statements and or other relevant documents to show the flow of the money received; c) the Defendant to pay interest at the rate of 5% per annum on the sum of EUR 84,562.50 or its equivalent in Ringgit Malaysia from 16.08.2023 until full realisation; d) the Defendant to pay costs fixed at RM 35,000.00 subject to payment of allocator. Dated the 19th day of June 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiffs: Mr. Philip Teoh together with Ms. Evelyn Ng Can Fei and Ms. Lee

Jie Zing (Messrs. Azmi & Associates) Counsel for Defendants: