Healy v Wickham
[2024] WADC 88
•22 OCTOBER 2024
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 and credit that ought not be disposed of summarily.
If the answer to that is 'yes' then summary judgment in terms of the agreement is not appropriate and the stay on the action stands. The matter would then likely be best progressed by the issue of fresh proceedings.
However, if Ms Wickham's evidence cannot be accepted Ms Healy will be entitled to summary judgment in terms of the agreement.
Background
The background to this matter is relevant to the determination of the application. This has been discerned from the court record.
Preliminary matters and initial appearances
In response to the writ of summons Ms Wickham entered a memorandum of appearance and wrote to the court indicating an intention to speak on behalf of the company. She also filed a notice of representation indicating she would be acting for herself.
The court advised Ms Wickham that she could not merely request to act for the company by letter but would need to enter a conditional appearance and apply by chamber summons seeking leave to appear on behalf of the company.
A conditional appearance for the company was entered on 23 March 2023. Consistent with Ms Wickham's letter indicating that she sought to represent the company this did not nominate a legal representative for the company. This was not accompanied by a proper chamber summons application or affidavit.
The conditional appearance filed by the company does not appear to strictly be an appearance contemplated by O 12 r 6(1) of the Rules of the Supreme Court 1971 (WA) as it contained no challenge to the jurisdiction of the court or validity of the writ and appears in substance to be an application for leave for the second defendant to be represented other than by a solicitor.
To assist Ms Wickham the court sent her templates of the relevant chamber summons and affidavit. On 13 April 2023 she lodged an application for leave to represent the company, more than 14 days after the entry of the company's conditional appearance.
As that conditional appearance was not pursued in accordance with O 12 r 6(2) of the Rules of the Supreme Court it should have become an unconditional appearance. However, that did not occur as it did not nominate a legal representative for the company and so could not become an unconditional appearance until the question of leave for the company to act other than by a solicitor was determined. In that sense the conditional appearance entered is arguably irregular and liable to be set aside under O 2 r 1 of the Rules of the Supreme Court.
When filing her application on 13 April 2023 Ms Wickham wrote to the court stating that she was not available until after 4 June 2023 and requesting the matter not be listed until after that date. I cannot see that the application for leave to be represented other than by a solicitor was ever given a return date or called on for determination and remains outstanding.
This application has been overtaken by events discussed below.
The company attempted to file a defence and counterclaim on 29 March 2023. These were rejected as no memorandum of appearance had been entered for the second defendant nor had leave for Ms Wickham to act for the company then been determined (notwithstanding that the irregular conditional appearance had then been entered).
Multiple statements of claim were filed, the most recent being the further amended statement of claim filed on 6 April 2023. However, Ms Healy's pleaded case was always that the money in question was owed by both the first and second defendant either as a debt or as damages claimed as a result of (mis)representations made by the first defendant.
Before the application for leave to be represented other than by a solicitor was listed (remembering that Ms Wickham had indicated she was not available to argue that application until after 4 June 2023) the parties filed consent orders in the form of the Tomlin order. Ms Healy asked for the matter to be called on to canvass the proposed orders with the court. The matter came before the court on 16 June 2023.
The hearing of 16 June 2023 and the Tomlin order
The minute proposing the orders was initially signed by Ms Wickham on behalf of both defendants. Separate signature blocks were not provided for the two defendants and the minute was signed as being on behalf of 'the first and second defendant'.
At the hearing I expressed reservations as to whether the orders could be made in respect of the company given no appearance had then been entered and leave to act other than by a solicitor had not been granted.
Transcript of the hearing reveals that various options were canvassed with the parties including holding the proposed consent orders in abeyance until the application for leave could be determined or exploring resolution by some other mechanism (such as a deed).
Ms Healy's solicitor proposed a third solution noting that Ms Wickham was entitled to act on her own behalf and the order could be made in relation to Ms Wickham only. There would then be no need for the company to enter an appearance and the orders would then bind Ms Wickham as the first defendant and not the company (the second defendant).
It was proposed that the minute of proposed orders be amended to then remove reference to the second defendant and it would then be an agreement between only Ms Healy and Ms Wickham.
Ms Wickham chose the third option proposed. The matter was stood down to allow the parties to confer and the minute of proposed orders varied to remove reference to the second defendant.
In effect, the orders then lay between Ms Healy and Ms Wickham.
The orders provided for liberty to apply to enforce the terms of the compromise embodied in the Tomlin order. No general liberty beyond that was preserved by the orders.
Matters subsequent to the Tomlin order
The time for compliance with the agreement set out in the Tomlin order was later purported to be varied by consent.
As no leave to vary the agreement was granted by the orders establishing the Tomlin order (save as for enforcement) this was impermissible.
However, it appears that through oversight such an order was issued. Despite my present view that this order can have been of no effect given the stay in force both parties acted consistently with the terms of the extension granted.
Ms Wickham later applied for a further extension of time. Ms Healy declined to consent to this.
Ms Healy then brought the present application to enforce the terms of the agreement embodied in the Tomlin order and in doing so seeks judgment against Ms Wickham.
The referral to a judge for consideration of the Rules of the Supreme Court 1971 (WA) O 42 r 8
The application was referred to a judge for consideration of whether this was a species of order captured by O 42 r 8 of the Rules of the Supreme Court and can only have been properly entered into by a self‑represented litigant (as Ms Wickham then remained) before a judge.
After argument, his Honour Judge Curwood delivered ex tempore reasons indicating that O 42 r 8 did not apply as a Tomlin order only grants a party the right to apply to the court for judgment. It is not entering into judgment itself.
Accordingly, there was no impediment to Ms Wickham entering into the Tomlin order.
Furthermore, the order issued by the court did not properly set out the Tomlin order in its proper form (which was to express the agreement between the parties as a schedule to the orders staying the action). The minute of proposed orders lodged with the court and amended on the day by the parties was in the proper form. This was an error of my own making in giving effect to the parties' consent order. However, his Honour held this to be an error of form only and I accept that to be correct. I also understand that to be the position of the parties.
Having determined that O 42 r 8 did not apply the matter has been referred back to me for determination of Ms Healy's application for judgment in terms of the agreement made under the Tomlin order.
His Honour also noted that there were applications outstanding that required determination (in addition to Ms Healy's application for judgment) being Ms Wickham's application for leave to act for the company (which had never been dealt with) and her application for a further extension of time to comply with the terms of the agreement.
Extension of time for compliance
In regard to the extension of time application: as noted, the initial extension was an irregularity and ought not have been consented to by the court.
The action was stayed in regard to all matters between the parties save for the purposes of enforcing the terms of the agreement.
Accordingly, there is no scope for any variation to the agreement.
In any event, this seems to have been subsumed by the argument now being advanced that the court ought not give effect to the agreement entered into at all.
Ms Wickham no longer presses this application. The application is dismissed.
Application to represent the second defendant
This application has been overtaken by the notice of representation filed on behalf of both the first and second defendants of 8 May 2024 indicating that it has retained solicitors to act for it.
Those solicitors remain on the record. In that respect Ms Wickham does not press that application further and in that regard the conditional appearance entered (which in substance is an application for leave for the company to be represented other than by a solicitor) falls away.
However, I note that no memorandum of appearance has been entered by the second defendant and so despite retaining solicitors to act for it I cannot see that the second defendant has properly placed itself before the court.
Accordingly, it appears that:
(a)the conditional appearance entered was in substance an application for leave to represent the company other than by a solicitor;
(b)that application was never progressed by Ms Wickham or the second defendant (as the case may be);
(c)the application has been overtaken by the notice of representation filed on behalf of both defendants of 8 May 2024; and
(d)no memorandum of appearance has been entered for the second defendant subsequent to it having retained solicitors.
Whether a memorandum of appearance has been entered for the second defendant (or indeed now needs to be or indeed can be given the action is stayed) is beside the point as far as the application for leave to act other than by a solicitor is concerned.
The relevant point is that the second defendant has retained solicitors and filed a notice of representation. The application to be represented other than by a solicitor has been overtaken by these events and is not further pressed. That application is dismissed.
Should summary judgment be awarded against Ms Wickham?
In forming a view on whether to grant summary judgment it is necessary to have regard to:
(a)the process to be applied in determining how a Tomlin order is enforced; and
(b)the arguments advanced by Ms Wickham in opposition to Ms Healy's application for enforcement and whether these raise issues that would make summary determination of the action inappropriate.
The process to be applied
There are few authorities canvassing the operation of Tomlin orders in this jurisdiction. For present purposes I rely on Justice Beech's synopsis set out in Thomas v Cummins [2009] WASC 228 [24] - [29]. I have also had regard to Williams v Coral Bay Amalgamated Holdings Pty Ltd [2013] WASC 269 which largely applies Justice Beech's synopsis of the principles to be applied.
As noted by Justice Martin in Williams v Coral Bay Amalgamated Holdings Pty Ltd at [8] - [9]:
An application for summary enforcement relief reflects the nature of a Tomlin procedure, pursuant to which parties put their agreement before the court and stay their action rather than dismiss or discontinue it, in an expectation that if the agreement is not implemented, they may apply for an enforcement order in that same action.
The intent of a Tomlin order is that parties are effectively protected by a hopefully cheap, quick and efficacious way of enforcing what they have agreed if things go wrong.
The relevant principles drawn from these authorities are as follows:
(a)A Tomlin order is an order giving effect to settlement terms agreed between the parties. The terms of the settlement are a schedule to the orders but are not orders of the court.
(b)The compromise agreement in the schedule to the order made supersedes the parties' previous rights and obligations which have been in dispute.
(c)The terms on which a party may enforce the agreement exist if that order includes a stay subject to liberty to apply to enforce the agreement and the application is to strictly enforce only the terms of the agreement - not to revisit the terms of any prior obligation superseded by the agreement.
(d)The agreement can be enforced summarily (that is by way of application to the court without trial) provided the court is satisfied that justice can be done between the parties under the summary procedure.
(e)Whether justice can be done between the parties summarily requires consideration of all the circumstances of the case including:
(i)the extent to which matters extraneous to the original action are involved;
(ii)how substantial the questions to be determined are;
(iii)to what extent questions of credibility are likely to arise; and
(iv)whether pleadings and discovery may be desirable,
(f)Finally, it remains for the applicant (that is the party seeking to enforce the agreement by way of summary judgment) to satisfy the court that there is no real question to be tried.
As the obligations between the parties are to then give effect to the agreement between them set out in the Tomlin order (or more correctly in the schedule attached to that order) the cause of action or terms of the original dispute are not relevant to determination of the action. The remedy is compliance with or enforcement of the terms of the agreement entered into before the court.
I am conscious that an application to summarily enforce the terms of an agreement entered into under a Tomlin order is akin (but not identical) to a summary judgment procedure. Nevertheless, in weighing and balancing the affidavit evidence lodged by both parties I am inclined to have regard to the words of Judge Russell in Harlap Nominees Pty Ltd as Trustee for the Harlap No 2 Family Trust v Povey [2022] WADC 113 [30] that:
An application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. However, the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. Nor must a court accept a statement in an affidavit that does not have 'sufficient prima facie plausibility to merit further investigation as to its truth'.
(citations omitted)
Ms Wickham's arguments in opposition to Ms Healy's application
Ms Wickham raises three arguments in opposition to Ms Healy's application:
(a)the company is liable for the debt, not Ms Wickham personally;
(b)the company has a valid defence to the claim against it; and
(c)Ms Wickham was mistaken as to the effect of the agreement she entered into and this mistake raises issues of fact and credit that ought not be determined summarily.
In disputing the application for judgment the parties each relied on a series of affidavits all of which were received without objection.[1] I have also had regard to the court record in determining this application.
[1] For Ms Wickham the affidavits dated 6 September 2024, 2 August 2024, two of 20 February 2024. For Ms Healy the three affidavits of Ms Orloff dated 17 January 2024, 15 February 2024 and 16 February and two affidavits from Mr Douglas dated 16 February 2024 and August 2024.
Although not in dispute I am satisfied that Ms Wickham has not complied with the terms of the agreement set out in the schedule to the Tomlin order. This is established by the affidavits relied on by Ms Healy[2] and is apparent from the extensions of time to comply with the agreement sought by Ms Wickham. I am satisfied that Ms Healy is entitled to bring the application for judgment to enforce the terms of the agreement.
The company is liable for the debt not Ms Wickham personally
[2] Orloff affidavits of 17 January 2024 at pars 19 ‑ 20 and of 16 February 2024 at par 7.
The statements of claim indicate that the debt was pleaded against both Ms Wickham and the company.
Ms Wickham has aways maintained that it is the company that is liable for the debt not her. Much of the affidavit evidence (of both parties) deals with the initial interactions of the parties and the loan agreements. These are not directly relevant to the disposition of this application.
As set out above, what must be certain are the terms of the agreement now entered into by the parties (being the agreement the subject of the Tomlin order) not whether Ms Wickham has a defence to the original cause of action. All such causes of action (and defences) have been superseded by the Tomlin order agreement.
I further note that Ms Wickham does not contend that the agreement is vague or uncertain such that it requires further determination as to what the agreement in fact entails (as was the case in Williams v Coral Bay Amalgamated Holdings Pty Ltd) or that Ms Healy is now trying to enforce something that strays beyond the bounds of the agreement entered into (as was the case in Thomas v Cummins).
Rather, Ms Wickham only contends that she is not liable to pay as she never borrowed money from Ms Healy. Only the second defendant did.
I am not persuaded that this is a basis for declining the summary judgment application. However, it may be relevant to whether Ms Wickham was mistaken as to effect the agreement she entered into. I will return to this later.
The second defendant has a defence which has not been extinguished
Ms Wickham contends (at pars 30 and 31 of her written submissions) that the second defendant has a defence and that aspects of Ms Wickham's counterclaim remain live issues to be tried and that 'it appears open for the second defendant to recover the costs of the shares'.
Ms Wickham contends that these raise matters extraneous to the original action such that summary judgment is not appropriate.
Although the defendants named in the statement of claim (being Ms Wickham and the company) attempted to lodge a defence in March of 2023 this was not accepted for filing by the court. As the second defendant had not yet entered an unconditional appearance the defence was not accepted for filing.
Both parties attach the rejected defence to their affidavits. Whilst I accept this was the document that was attempted to have been filed this cannot be accepted as any firm position of the defendants' pleaded case because, as a rejected document, it forms no part of the court record.
I note that Ms Wickham (on behalf of the first and second defendants) lodged affidavits (which appear to be duplicates of each other) 'in support of the defence' on 29 March 2023.
It is not clear to me how if the defence was rejected on the basis that no appearance had been entered for the company that these affidavits have remained on the court record. However, be that as it may, these are not pleadings and do not constitute a defence.
Also, as previously noted, despite now retaining solicitors to represent it no memorandum of appearance has been entered by the company.
No defence was filed by Ms Wickham until February 2024 when Ms Wickham lodged a defence and counterclaim (after the action had been stayed).
That defence (and counterclaim) raises issues of the shares in the company held by Ms Healy which are now contended to be the basis of the second defendant's defence and counterclaim. It is this which Ms Wickham now contends is a 'live issue' such that summary judgment ought not be granted.
As no appearance has been entered for the second defendant this cannot be a defence advanced in respect of it and indeed no document constituting a defence of the second defendant can be identified on file.
Ms Wickham contends (in her written submissions at par 30) that the issue of the shares and any counterclaim were not dealt with in the agreement made under the Tomlin order and that that the second defendant did not sign that agreement. I accept that is correct.
Ms Wickham contends therefore that as these were not disposed of by the Tomlin order these arguments were 'left open' to be argued by the second defendant and as such are extraneous matters that militate against summary determination.
I disagree and fail to see how that can be so given the second defendant has not entered an appearance and no defence has been filed in respect of it.
In any event, as Ms Healy observes, if the company has a claim against Ms Healy in respect of any shares that can be the subject of separate proceedings between the company and Ms Healy (and properly ought to be given the present action is now stayed). Accordingly, Wicker IP Royalties Pty Ltd is not deprived of any ability to pursue a remedy in that regard and it is a matter separate to the enforcement of the agreement entered into.
Whilst the matter of the shares may be a matter that lies between the company and Ms Healy, the company, by failing to enter an appearance, is not a party to these proceedings and as such, I do not consider this to be a matter extraneous to the agreement entered into that ought disturb Ms Healy's ability to enforce the agreement made between herself and Ms Wickham.
Ms Wickham was mistaken as to the effect of the agreement she entered into (being the Tomlin order) and this mistake raises issues of fact and credit that ought not be determined summarily
Ms Wickham contends that she made a mistake of law with respect to the liability imposed on her by the Tomlin order, believing that no liability was imposed upon her. See pars 27 ‑ 29 of Ms Wickham's written submissions.
To this end Ms Wickham relies on s 124 of the Property Law Act 1969 (WA). Other than reference to this section no authority or argument was advanced in respect of the application of this to Ms Wickham's case.
Rather, she contends that issues of fact and credibility arise such that summary judgment would be inappropriate.
It was not argued as such but I infer that this is based on the proposition that it is for the party pressing for summary judgment to establish that it is appropriate and that an application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would be accepted at trial.
The question then is whether Ms Wickham's contention that she was mistaken is inherently incredible. In my view, it is.
I arrive at this conclusion having regard to:
(a)Ms Wickham's history of interaction with the court;
(b)the inconsistency in the defences raised resisting summary judgment;
(c)Ms Wickham's interactions with Mr Douglas;
(d)Ms Wickham's actions consistent with a comprehension of the agreement; and
(e)Ms Wickham's evidence as to her alleged inducement to enter into the agreement on terms other than had been negotiated.
Ms Wickham's history of interaction with the court
Ms Wickham contends that in entering into the Tomlin order she was mistaken as to what she thought she was agreeing to.
This is a difficult proposition to accept given that Ms Wickham seems to understand (and at all times understood) the difference in legal personality between herself and the company.
Although she may have been ignorant as to the court's procedure Ms Wickham nevertheless entered an appearance in her own right and then proceeded to bring an application for leave to appear on behalf of the company.
Ms Wickham maintains (as set out above in respect of the first limb by which she resists Ms Healy's application) that it is the company that was liable for the loan not her personally.
Taken in conjunction this indicates that Ms Wickham (in her personal capacity and as the director of the company) understood that there were two defendants with a separate legal personality and potential rights and liabilities.
Inconsistency in the defences raised resisting summary judgment
However, in arguing her second limb (that there are matters extraneous to the agreement that militate against a grant of summary judgment) Ms Wickham accepts that the second defendant did not sign and was not a party to the Tomlin order.
This is inconsistent with her argument that she was mistaken as to who was bound by the agreement entered into (namely the second defendant and not herself personally). Either she thought the second defendant was a party to the agreement (and not her personally) or it was not.
It is difficult to reconcile these positions.
The history of interaction between Ms Wickham and the court in regard to the need for her to seek leave to represent the company, the defences she has raised and her own argument that the second defendant did not sign the agreement militate against accepting Ms Wickham's evidence that she was mistaken as to the effect the agreement.
Ms Wickham's interactions with Mr Douglas
Ms Wickham sets out a series of interactions with Ms Healy's solicitor Mr Douglas (between pars 33 and 37 of her affidavit of 2 August 2024). However, the timeline of this is not clear and appears to jump between events leading up to the parties entering into the Tomlin order and events after it. In my view, the correspondence after the agreement was entered into is of little weight. (See Ms Wickham's affidavit of 20 February 2024 and attachments to it).
Ms Wickham contends that she was 'induced to sign the document by reason of the representation from Mr Douglas that the document had been prepared on the terms I had negotiated'. (See at par 37 of Ms Wickham's affidavit of 2 August 2024).
Although there is evidence of a series of emails exchanged between the parties which I infer led to the agreement (see the affidavit of Ms Orloff of 16 February 2024) the content of these exchanges is not before me.
The only information as to these negotiations is from Ms Wickham's affidavit of 6 September 2024 in which she states that the email received was addressed to 'myself and the second defendant' and that she was 'signing the settlement agreement as Director on behalf of the Second Defendant company. There was no mention that I would be paying the loans personally nor acceptance of personal liability of the Plaintiff's claims'. This is reiterated elsewhere in Ms Wickham's affidavit of 6 September 2024.
However, from this I infer that the agreement as originally presented to the court (prior to being amended on 16 June 2023) was the agreement Ms Wickham entered into.
Although there is only one signature block for the 'first and second defendants' both are separately described on the agreement and the obligation to be bound by the agreement extended to both defendants.
The exchanges between the parties and the court on 16 June 2023 are plain. The document handed to the court as the final order to be made clearly struck reference to the second defendant.
Ms Wickham however maintains that she 'understood I was signing for payment instalments on behalf of the Second Defendant' (at par 26 of her affidavit of 2 August 2024) and that on 16 June 2023 in regards to the amended proposed orders 'I signed the document handed to me by Mr Douglas on the understanding the document was prepared on the terms the payment was being made on behalf of the second defendant' (at par 37).
Ms Wickham's second affidavit of 20 February 2024 however states that she (as the first defendant) 'agreed to pay on behalf of the company, but not personally for the payment as the first defendant is not a guarantor' (at par 5).
This again conflates the nature of the parties' rights and liabilities that spring from the causes of action originally pleaded (and any defences to them) and the agreement entered into that supersedes them.
Actions consistent with a comprehension of the agreement
Ms Wickham then goes on to state that 'the first defendant on behalf of the company' then arranged part payment of the agreed amount. See par 6 of Ms Wickham's affidavit of 20 February 2024.
This is somewhat reflected by her later affidavit of 2 August 2024 (at par 27) where Ms Wickham states that 'I paid to the plaintiff the sum of $65,000.00 through the company bank account'.
However, these are not totally consistent statements as the first indicates that she paid in her capacity as the first defendant (albeit on behalf of the company) whereas the second indicates that Ms Wickham (in some capacity) arranged for part payment.
At no time does Ms Wickham state that the second defendant made payment, a statement that would be consistent with her alleged (mis)understanding.
Furthermore, Ms Wickham in (both affidavits) asserts that payment was made from the company bank account. The payment receipt is attached to Ms Wickham's affidavit of 20 February 2024.
The descriptions on this indicate that this was a payment made by 'AC Wickham and Wicker IP' or by 'Charisma W & Wicker IP'. The payer name is described as Wicker IP Royalties Pty Ltd however the account name is given as 'Wickham' with the relevant account details.
These may be descriptions of convenience however, they do not appear to be consistent with an understanding that it was the second defendant only who was liable to make payment or indeed do they unequivocally establish that this was paid by the company. If so, why include reference to the first defendant? This is not explained.
Whilst this is not of its own determinative it raises a further inconsistency in Ms Wickham's evidence.
Documents on the court record also assist in determining whether Ms Wickham's statement as to whether she was mistaken as to the agreement she entered into can be accepted as credible.
Ms Wickham filed a chamber summons on 15 September 2023[3] seeking an extension of time to comply with the Tomlin order. That application is not supported by affidavit however par 3 of the application states that 'the first defendant is an [sic] entirely committed to this payment and has made every avenue to allocate funds for the settlement'.
[3] Two chamber summons were filed by Ms Wickham however one was merely a blank document.
It goes on to say at par 5[4] 'due to the financial constraints in the company the first defendant appeared for the company and agreed to pay the debt/initially [sic] investment … … However, the first defendant has agreed to make payment on behalf of the company to the plaintiff and kindly ask the court to give leave and grant the time requested in this application'.
[4] There are two paragraphs enumerated [5].
It is this application for an extension of time that was overtaken by the consent orders purporting to extend the time for compliance with the Tomlin order. However, what is relevant for present purposes is that order was signed by Ms Wickham in her capacity as the first defendant.
Ms Wickham then lodged an application for a further extension of time (filed on 29 December 2023). That chamber summons indicated that it was the first defendant who had paid part of the sum agreed and the first defendant who was seeking alleviation from the interest and bank charges.
That application was supported by an affidavit of Ms Wickham that referenced and attested to her part payment of the agreed sum in her capacity as the first defendant. The affidavit maintains that she was not the borrower rather the company was. However, payment by the first defendant was consistent with the agreement entered into under the Tomlin order.
Inducement to enter agreement on terms other than had been understood
As mentioned above, Ms Wickham states that she was 'induced' to sign the amended agreement based on a representation made by Mr Douglas that the document had been prepared on the terms that she had negotiated (see at par 37 of Ms Wickham's affidavit of 2 August 2024).
At par 33 of that affidavit, Ms Wickham states that Mr Douglas 'harassed me, intimidated me and pressured me' to sign the schedule for repayments. It is not clear when this occurred but I infer that it was prior to 16 June 2023.
Ms Wickham accepts that her evidence does not identify what representation was made by Mr Douglas other than 'the document had been prepared on the terms that I had negotiated'. The evidence before me indicates that, save for the removal of any reference to the second defendant, the document remained on the same terms as had been negotiated, only the parties to it were amended.
That is consistent with the affidavit of Mr Douglas of 23 August 2024.
Ms Wickham's actions in seeking extensions and acting in part compliance with the agreement suggests that the only change to the agreement originally made was the removal of the second defendant. Ms Wickham's documents filed with the court were consistent with the terms of the agreement between Ms Healy and Ms Wickham in her personal capacity as first defendant notwithstanding Ms Wickham's consistently held view that she was not legally liable for the debt under the original cause of action (a view now superseded by the agreement).
Conclusion
Taken in isolation Ms Wickham's evidence of her belief set out in her more recent affidavits asserts that she was mistaken as to the effect of agreement entered into.
However, when considered in a wider context I am not persuaded that Ms Wickham's assertion of mistake is a credible one.
Ms Wickham always maintained that she was not personally liable for the loan the subject of Ms Healy's claim. That might be so but as a defence it has been overtaken by the agreement entered into. Correspondence with the court subsequent to the Tomlin order indicates that notwithstanding her contention that she was not liable Ms Wickham agreed to make payments under the agreement. Ms Wickham acted (and corresponded with the court) consistently with the terms of the agreement all the while maintaining her position.
It is not necessary to attempt to discern Ms Wickham's motivations for doing this and I refrain from doing so. It is only necessary to consider that she entered into a straightforward agreement, the nature of her exchanges with the court indicated she understood the difference in legal personality between her and the company and she then acted and communicated in the aftermath of entering into that agreement consistent with the terms of the plainly worded agreement nevertheless maintaining all the while that it was the company that had borrowed the money not herself personally.
This is in contrast to the basis on which she resists this application, namely that she was mistaken and thought she had entered into the agreement not in her personal capacity as the first defendant but as the director of the company.
In my view, having regard to all the circumstances of the case including the inconsistencies in Ms Wickham's own evidence and arguments as well as the court record such a contention cannot be sustained as a credible one.
Furthermore, there is nothing that I am able to identify in Ms Wickham's evidence that is inconsistent with the affidavit evidence relied on by Ms Healy that would give rise to requiring a contest of fact or credibility such that summary judgment would not be appropriate. Rather, the credibility of Ms Wickham's evidence is determined on the basis of inconsistencies in her own evidence and arguments and the court record itself not on any contest of evidence between the parties.
Having regard to all the circumstances of the case I consider it just that judgment be entered for Ms Healy against Ms Wickham in terms of the agreement made between them.
Given the terms of the agreement made under the Tomlin order are clear and the evidence establishes that Ms Wickham has made part payment of the amount due under the agreement all that remains is for summary judgment to be entered in Ms Healy's favour in respect of the balance of that amount agreed that remains unpaid.
However, as questions of interest and reserved costs remain to be addressed (the reservation of which appears inconsistent with the orders as to costs agreed between the parties and the terms of the summary judgment application brought by Ms Healy) I will hear the parties further as to the terms of the orders required to dispose of the action and any matters otherwise dealt with by these reasons (being the outstanding applications that have now been dismissed).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
PD
Associate
22 OCTOBER 2024
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