Healy v Wickham - [2024] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HEALY -v- WICKHAM [2024] WADC 88
CORAM:   REGISTRAR NUNN
HEARD:   13 SEPTEMBER 2024
DELIVERED          :   22 OCTOBER 2024
FILE NO/S:   CIV 1012 of 2023
BETWEEN:   COLLETTE HEALY
Plaintiff
AND
AARIYA CHARISMA WICKHAM
First Defendant
WICKER IP ROYALTIES PTY LTD
Second Defendant
AND
AARIYA CHARISMA WICKHAM
Plaintiff by counterclaim
AND
COLLETTE HEALY
Defendant by counterclaim

Catchwords:

Tomlin order - Memorandum of appearance - Enforcement of agreement under Tomlin order - Summary procedure

Legislation:

Property Law Act 1969 (WA)

Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Representation:

Counsel:

Plaintiff	:	Mr K Walsh
First Defendant	:	Mr P J Griffin
Second Defendant	:	Mr P J Griffin
Plaintiff by counterclaim	:	In person
Defendant by counterclaim	:	Mr P J Griffin

Solicitors:

Plaintiff	:	Douglas Lawyers
First Defendant	:	Peter J Griffin & Co
Second Defendant	:	Peter J Griffin & Co
Plaintiff by counterclaim	:	Not applicable
Defendant by counterclaim	:	Douglas Lawyers

Case(s) referred to in decision(s):

Harlap Nominees Pty Ltd as Trustee for the Harlap No 2 Family Trust v Povey [2022] WADC 113
Thomas v Cummins [2009] WASC 228
Williams v Coral Bay Amalgamated Holdings Pty Ltd [2013] WASC 269

REGISTRAR NUNN:

Introduction

Ms Aariya Wickham is the sole director of Wicker IP Royalties Pty Ltd.
Ms Collette Healy alleges that she loaned Ms Wickham (as the first defendant) money under an oral agreement and that this was later confirmed as a loan against both Ms Wickham and the company (as the second defendant) in writing.
Furthermore, Ms Healy contends that Ms Wickham made misrepresentations that induced her to advance the loan.
Ms Healy seeks recovery of that loan (plus interest and costs) from Ms Wickham and the company.
Although Ms Wickham entered an appearance as first defendant, the company, though named as second defendant in the writ, did not (at least not unconditionally). More will be said of that later, however, Ms Wickham and Ms Healy agreed to resolve the action by consent in the form of a Tomlin order providing for a compromise and stay of the action (but allowing for liberty to apply to enforce the terms of the agreement contained as a schedule to the Tomlin order).
Ms Healy now applies for enforcement of the agreement the subject of the Tomlin order by way of summary judgment against Ms Wickham.
For the reasons that follow I consider summary judgment in the terms of the agreement to be just having regard to all the circumstances of the case.

Issues

The issue to be determined is whether judgment against Ms Wickham ought be ordered summarily in terms of the agreement she entered into under the Tomlin order.
This turns on whether Ms Wickham's evidence as to her understanding of what she was agreeing to in entering into the agreement that was the subject of the Tomlin order can be accepted or whether that evidence gives rise to issues of fact…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WADC 88
Decision Date: 22 OCTOBER 2024

CaseChat Overview and Summary

The case of Healy v Wickham involved a dispute between the parties over the enforcement of an agreement made under a Tomlin order. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the respondent could enforce the agreement made under the Tomlin order against the applicant.

The court considered the legal implications of the agreement made under the Tomlin order and whether it was binding on the applicant. The court also considered the respondent's right to enforce the agreement and whether the applicant had breached the terms of the agreement. The court examined the relevant provisions of the Federal Circuit Court of Australia Rules and the applicable case law.

After considering the arguments and evidence presented by both parties, the court found that the agreement made under the Tomlin order was binding on the applicant and that the respondent had the right to enforce the agreement. The court also found that the applicant had breached the terms of the agreement. The court ordered the applicant to comply with the terms of the agreement and pay the respondent's costs of the proceeding. The court further ordered that the matter be listed for a directions hearing to determine the next steps in the proceedings.

Orders