Zafra Pty Ltd v Stevenson [No 2] - [2024] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZAFRA PTY LTD -v- STEVENSON [No 2] [2024] WADC 4
CORAM:   PALMER DCJ
HEARD:   23 JANUARY 2024
DELIVERED          :   31 JANUARY 2024
FILE NO/S:   CIV 3531 of 2019
BETWEEN:   ZAFRA PTY LTD
Plaintiff
AND
CANDICE MARGARET STEVENSON
Defendant

Catchwords:

Application for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court - Application for summary judgment out of time - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Summary judgment granted

Representation:

Counsel:

Plaintiff	:	Mr P G McGowan
Defendant	:	Ms E Carlean

Solicitors:

Plaintiff	:	Zafra Legal
Defendant	:	In person

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

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720
Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144
Cheney v Moore [2020] WASC 227
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kezic v St John of God Health Care Inc [2015] WASCA 220
Pigozzo v Mineral Resources Ltd (No 2) [2023] FCA 1489
Pisano v South Metropolitan Health Service [2023] WASCA 80
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Stevenson v Zafra Pty Ltd [2020] WASC 160
Stevenson v Zafra Pty Ltd [2021] WASCA 181; (2021) 58 WAR 383
Stevenson v Zafra Pty Ltd [2022] WASC 445
Zaghloul v Bayly [2021] WASCA 125

PALMER DCJ:

Introduction

This is an appeal by the defendant (Ms Stevenson) from a decision of Registrar Jeyamohan to grant the plaintiff (Zafra Legal) summary judgment on 8 August 2023.
Zafra Legal is an incorporated legal practice. Ms Stevenson is a former client of Zafra Legal. Zafra Legal acted for Ms Stevenson in proceedings brought against her by Atrum Coal NL in the New South Wales registry of the Federal Court (Federal Court Proceedings).
By these proceedings, Zafra Legal seeks to recover $91,627.82 and interest that it says are due to it from Ms Stevenson pursuant to a written costs agreement between Zafra Legal and Ms Stevenson.

The factual background

The parties to these proceedings have been involved in related proceedings in the Supreme Court of Western Australia, including an appeal to the Court of Appeal. In Stevenson v Zafra Pty Ltd,[1] the Court of Appeal set out the relevant factual background in some detail. I will not repeat everything that was said there. For the purposes of the present application, it is relevant to note the following.
[1] Stevenson v Zafra Pty Ltd [2021] WASCA 181 [7] - [93]; (2021) 58 WAR 383.
The solicitor at Zafra Legal with the conduct of the Federal Court Proceedings for Ms Stevenson was Mr Shayne Leslie.[2]
[2] Affidavit of Shayne Graham Leslie in Support of Application for Summary Judgment Declared on 24 February 2023, par 4 (24 February Leslie Affidavit).
Mr Leslie was initially instructed to act for Ms Stevenson on 26 October 2015. At the time, Mr Leslie was a special counsel working at the law firm Wilson & Atkinson.[3]
[3] 24 February Leslie Affidavit, par 7.
Ms Stevenson entered into a cost agreement with Wilson & Atkinson and pursuant to that agreement Wilson & Atkinson invoiced Ms Stevenson the sum of $118,097.13 in fees and disbursements.[4]
[4] 24 February Leslie Affidavit, pars 7 - 9.
In April 2016 it was proposed that Wilson & Atkinson cease trading. On 21 April 2016, Mr Leslie wrote to Ms Stevenson inviting her to transfer her file from Wilson & Atkinson to him at Zafra Legal where he would continue to act for her. Ms Stevenson agreed to transfer her file to Zafra Legal.[5]
[5] Affidavit of Shayne Graham Leslie in Reply Declared on 23 April 2023, pars 6 ‑ 10 (23 April Leslie Affidavit).
Ms Stevenson entered into a new costs agreement with Zafra Legal.[6] Pursuant to that costs agreement Zafra Legal invoiced Ms Stevenson the sum of $178,805.33 in fees and disbursements.[7]
[6] 24 February Leslie Affidavit, par 11.
[7] 24 February Leslie Affidavit, pars 7 - 9.
The Federal Court Proceedings settled on the first day of trial. As part of that settlement, Ms Stevenson received $50,000.00 from Atrum Coal NL and an allocation of shares in that company to the value of $100,000.00.[8]
[8] 24 February Leslie Affidavit, par 13.
On 15 August 2016, Ms Stevenson paid Wilson & Atkinson $46,874.64, leaving $71,222.49 owing to Wilson & Atkinson.[9]
[9] 24 February Leslie Affidavit, par 14.
In or about December 2016, Ms Stevenson received the sum of $158,400.00 from Chubb Insurance as a payout from a directors and officers insurance policy for part of her legal costs in the Federal Court Proceedings.[10]
[10] 24 February Leslie Affidavit, par 15.
On 20 December 2016, Ms Stevenson paid Zafra Legal the sum of $158,400.00.[11]
[11] 24 February Leslie Affidavit, par 16. Attachment 'CMS5' to the Affidavit of Candice Margaret Stevenson Sworn 31 March 2023, pages 321 - 322 (31 March Stevenson Affidavit).
On 21 December 2016, Zafra Legal sent Ms Stevenson an email stating:[12]
Hi Candice
We have received the $158,400.00 and confirm that $71,222.49 has been receipted into our trust account for the payment of Wilson & Atkinson invoices (please see the attached receipt) and the remaining $87,177.51 has been used to pay some of our invoices.
We note that $91,627.82 remains outstanding on our invoices.
[12] 31 March Stevenson Affidavit, page 321.
Attached to the email was a Law Practice Trust Account Receipt for $71,222.49. The receipt recorded the sum as:[13]
Being for:Payment of W&A Invoices
[13] 31 March Stevenson Affidavit, page 322.
On 29 March 2017, Mr Leslie sent an email to Ms Stevenson requesting that she take steps to settle the balance of the sums owing to Zafra Legal as soon as possible. The email attached a statement of account showing $91,627.82 outstanding.[14]
[14] 24 February Leslie Affidavit, par 24, Attachment 'SGL 12', pages 183 - 184.
Ms Stevenson replied to that email as follows:[15]
It is unfortunate you have had to make first contact regarding the outstanding account.
I still hold the shares issued by Atrum and have every intention in [sic] selling them to settle this account in full. I have had sell orders in place since the beginning of the month to cover exact amount owed.
Unfortunately, the share price has continued to slide.
…
I will contact the company/brokers directly and discuss what options are available to realise the shares to recover the full amount owed to you (approx. 46c)[.]
They should have some interest in off-market sale at a higher value (than current trading price) as I could half [sic] the share price if I sold on market today out of 'desperation'.
I would like a little more time to continue to manage this from my side - I will keep you fully updated with any progress.
[15] 24 February Leslie Affidavit, par 24.
There was further correspondence between 11 September 2017 and 14 March 2019 regarding payment of the amount said to be outstanding but that amount was not paid.[16]
[16] 24 February Leslie Affidavit, pars 25 - 28.
These proceedings were commenced on 13 September 2019.[17]
[17] Writ of Summons dated 13 September 2019.
On 17 September 2019, Ms Stevenson filed an application in the Supreme Court of Western Australia for an extension of time to request an assessment of Zafra Legal's invoices.[18]
[18] 24 February Leslie Affidavit, par 34.
On 26 November 2019, Ms Stevenson filed a further application in the Supreme Court of Western Australia seeking to set aside her costs agreement with both Wilson & Atkinson and Zafra Legal.[19]
[19] 24 February Leslie Affidavit, par 37.
On 21 May 2020, Ms Stevenson's application to set aside her cost agreements was dismissed.[20]
[20] Stevenson v Zafra Pty Ltd [2020] WASC 160.
On 2 June 2020, Ms Stevenson appealed the decision to refuse to set aside her cost agreements.[21]
[21] 24 February Leslie Affidavit, par 39.
On 26 August 2021, the Court of Appeal dismissed Ms Stevenson's appeal against the refusal to set aside her cost agreements.[22]
[22] Stevenson v Zafra Pty Ltd [2021] WASCA 181.
On 14 December 2021, Ms Stevenson sought special leave to appeal to the High Court against the dismissal of her appeal.[23]
[23] 24 February Leslie Affidavit, par 41.
On 20 April 2022, special leave to appeal was refused.[24]
[24] 24 February Leslie Affidavit, par 41.
On 22 December 2022, Ms Stevenson's application for an extension of time to request an assessment of Zafra Legal's costs was dismissed.[25]
[25] Stevenson v Zafra Pty Ltd [2022] WASC 445.
On 24 February 2023, Zafra Legal filed an application for summary judgment in these proceedings.
On 8 August 2023, Registrar Jeyamohan heard the summary judgment application and made the orders granting summary judgment that are the subject of the present appeal.

The nature of the appeal

Rule 15(6) of the District Court Rules 2005 (WA) provides that an appeal from a registrar is to be by way of a new hearing of the matter that was before the registrar.
A new hearing means that the judge hearing the appeal must treat the application as if it was before the court for the first time.[26]
[26] Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
The defendant, as the party which has appealed, is not required to show that the registrar made an error in the decision, the subject of the appeal.[27]
[27] Cheney v Moore [2020] WASC 227 [9].
The court may rely upon additional evidence on the hearing of an appeal by way of a new hearing, subject to the court having a discretion to exclude such evidence.[28]
[28] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28.
It is therefore necessary for me to determine the summary judgment application again on the basis of the evidence now before me.

Summary judgment

Plaintiff's summary judgment is provided for in Order 14 rule 1 of the Rules of the Supreme Court 1971 (WA) (RSC). That rule provides:
Where in an action to which this Order applies a statement of claim has been served on a defendant and that defendant has entered an appearance, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against that defendant.
Order 14 rule 2 provides that an application under Order 14 rule 1 shall be made by summons supported by an affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based, and stating that in the deponent's belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed.
The principles to be applied in determining an application for summary judgment are well established and were summarized by the Court of Appeal in Zaghloul vBayly.[29] Those principles were not in dispute here.
[29] Zaghloul vBayly [2021] WASCA 125 [116] - [117].

Leave to apply for summary judgment

Zafra Legal requires leave to apply for summary judgment. Order 14 rule 1 of the RSC provides that summary judgment may be applied for within 21 days after the defendant enters an appearance, or at any later time by leave of the court.
Ms Stevenson entered an appearance in this matter on 23 September 2019. Zafra Legal did not apply for summary judgment until 24 February 2023.
While the delay in applying for summary judgment is significant, there was a practical difficulty in Zafra Legal applying for summary judgment prior to the final resolution of the proceedings brought by Ms Stevenson in the Supreme Court. If Zafra Legal's cost agreement was set aside, or she was able to have Zafra Legal's costs assessed, Zafra Legal might then not have been entitled to recover all of the fees it seeks in these proceedings. Any application that Zafra Legal made for summary judgment before the Supreme Court proceedings had been resolved, may well therefore have been refused.
There was a short delay between the finalisation of the proceedings in the Supreme Court and Zafra Legal's application for summary judgment. The last proceeding in the Supreme Court appears to have been dismissed on 22 December 2022.[30] Zafra Legal did not file its application for summary judgment in these proceedings until 24 February 2023.
[30] Stevenson v Zafra Pty Ltd [2022] WASC 445.
It does not seem to me that that period of delay is significant, however. It was not unreasonable for there to be a period of delay after the dismissal of Ms Stevenson's final application, to see if she appealed.
In any event, it seems to me that it is in the interests of justice for Zafra Legal to have leave to apply for summary judgment. These proceedings have been on foot since 2019 and have generated two related proceedings in the Supreme Court (one of which was the subject of an appeal to the Court of Appeal and an application for special leave). If these proceedings may be appropriately resolved on a summary basis, then the parties may be spared the further delay and expense associated with a trial of these proceedings.

The basis upon which Ms Stevenson resisted summary judgment

Ms Stevenson did not dispute that she entered into a cost agreement with Zafra Legal, Zafra Legal performed work for her defending the Federal Court Proceedings and Zafra Legal issued invoices to her for the work performed. In any event, these matters were established by the affidavit material before me.
Ms Stevenson sought to resist summary judgment on the basis that the sum of $158,400.00 that she paid to Zafra Legal on 20 December 2016, was for the payment of Zafra Legal's invoices and not Wilson & Atkinson's invoices. She maintained that once this was taken into account, she only owed Zafra Legal $20,405.33 plus interest.[31]
[31] Defendant's Submissions on Appeal in Opposition to Plaintiff's Application for Summary Judgment dated 9 January 2024, pars 4 and 10 (Defendant's Submissions).
On 23 January 2023 (the day of the hearing of this appeal), Ms Stevenson filed an affidavit which included the following:
6.I claim that I have on 20 December 2016 paid the sum of $158,400.00 toward the overall total of [Zafra Legal's] invoices, being: $178,805.33, the sum pleaded at paragraph 10 of the [Statement of Claim].
7.The invoices so rendered were for work done by [Zafra Legal] and not for work done by Wilson & Atkinson, and I made that payment accordingly believing I was paying off [Zafra Legal's] invoices.
8.However, [Zafra Legal] informed me by email dated 21 December 2016 that they had paid Wilson & Atkinson invoices from these monies.
9.I did not instruct [Zafra Legal] to pay Wilson & Atkinson from these monies and my instruction was not sought.
10.I say that the amount therefore owing to [Zafra Legal] is significantly lower than sought at paragraph 14 of the [Statement of Claim], being only $20,405.33 plus interest (not $91,627.82 claimed).
Ms Stevenson also referred[32] to clause 19.2 of Zafra Legal's terms of engagement which provided that:
You hereby authorise us to use any funds held on trust for you to pay outstanding accounts or to meet outstanding expenses due from you to us or to pay costs and expenses directly. Before withdrawing the funds we will give you written notice of withdrawal.
[32] Defendant's Submissions, par 12.
Ms Stevenson referred to an exchange between Mr Leslie and Ms Stevenson about an earlier payment of $46,874.64 that had been made to Wilson & Atkinson. On that occasion Mr Leslie had told Ms Stevenson to pay the funds to the Wilson & Atkinson general account.[33] It was submitted that this meant that she was entitled to assume that when she paid the $158,400.00 to Zafra Legal this was to be used to pay Zafra Legal’s invoices.[34]
[33] Defendant's Submissions, pars 14 - 18.
[34] ts 15, ts 19 - ts 21.
It was also said that Mr Leslie had deposed to not seeking Ms Stevenson's instructions to transfer $71,222.49 to Wilson & Atkinson. It was submitted that this was in direct contradiction of clause 19.2.[35]
[35] Defendant's Submissions, par 20.

Zafra Legal's submissions

Zafra Legal disputed Ms Stevenson's assertion that all of the $158,400.00 it received was for the payment of Zafra Legal's invoices only.
Zafra Legal submitted that the funds received were the proceeds of an insurance claim for the reimbursement of the legal fees incurred defending the Federal Court Proceedings, including the fees of both Wilson & Atkinson and Zafra Legal.[36]
[36] Plaintiff's Submissions in Answer to Appeal dated 16 January 2024 (Plaintiff's Submissions), par 22.
It was said that its treatment of the funds (to first pay the oldest outstanding invoices of Wilson & Atkinson then to pay the oldest outstanding invoices of Zafra Legal) was clearly and openly communicated to Ms Stevenson.[37] It was contended that up until 31 March 2023, Ms Stevenson accepted that as the true and proper position between the parties.[38]
[37] Plaintiff's Submissions, par 23.
[38] Plaintiff's Submissions, par 25.
Zafra Legal noted that in par 73.3 of her affidavit in support of her application to set aside the cost agreements Ms Stevenson deposed:[39]
I forwarded the balance of the settlement cash component ($46,874.64) and insurance payments ($158,400) to the defendants …
(emphasis added)
[39] Plaintiff's Submissions, par 27.
Zafra Legal also referred to the fact that in her submissions in support of her application to extend time for the assessment of costs Ms Stevenson, submitted that:[40]
[Ms Stevenson] paid $158,400 in satisfaction of the Wilson & Atkinson invoices and some of [Zafra Legal's] invoices on or about 28 November 2016.
[40] Plaintiff's Submissions, par 28.
Zafra Legal submitted that at no time before filing her defence on 31 March 2023 (more than 6 years after the $158,400.00 payment was made) did Ms Stevenson contend that the payment had not been properly allocated by Zafra Legal; or that the $71,222.49 paid to Wilson & Atkinson should have been credited to the debt due by Ms Stevenson to Zafra Legal.[41]
[41] Plaintiff's Submissions, par 31.
Zafra Legal noted that in the appeal against the decision to refuse to set aside the cost agreements, the Court of Appeal had recorded that it was uncontroversial before the Master that:[42]
76On 20 December 2016, Mr Leslie received $158,400 from Mrs Stevenson as payment of part of her account. The payment was allocated as to $71,222.49 in respect of outstanding Wilson invoices and $87,177.51 to the oldest outstanding Zafra invoice. It left $91,627.82 due to Zafra.
77Mrs Stevenson has never paid the $91,627.82 in respect of outstanding invoices to Zafra.
(emphasis added, footnotes omitted)
[42] Stevenson v Zafra Pty Ltd [2021] WASCA 181, footnote 2, page 8 and [76] - [77].
It was submitted that whether it is labelled agreement, acquiescence, election, waiver, laches, estoppel by convention, or promissory estoppel, Ms Stevenson cannot, more than six years later, maintain that the $71,222.49 allocated to Wilson & Atkinson openly, transparently and with express notice to Ms Stevenson, was in fact or law allocated to Zafra Legal.[43]
[43] Plaintiff's Submissions, par 35.
Zafra Legal submitted that it was disingenuous for Ms Stevenson to make the assertion that she has at this late stage. It said that the fact that Wilson & Atkinson had received payment of their money meant that they would not previously have been able to maintain an action for $71,222.49. It was submitted that Wilson & Atkinson had now been deregistered and that the limitation period had expired anyway.[44]
[44] ts 47; Affidavit of Daniel Steven Romano in Reply Re Application for Summary Judgment Declared 20 April 2023.
With respect to clause 19.2 of the Terms of Engagement, Zafra Legal contended that the clause did not require written instructions from Ms Stevenson as to how the funds were to be paid or allocated. It was said that all that was required was notice of the withdrawal of the funds. It was submitted that this was done the next day.[45]
[45] Plaintiff's Submissions, par 36.

Zafra Legal said that it does not follow from the failure to give notice the previous day, or to get written instructions from Ms Stevenson, that the funds were not objectively intended to be paid to the outstanding invoices of Wilson & Atkinson.[46]
[46] Plaintiff's Submissions, par 37.

Disposition

Ms Stevenson opposed summary judgment on the basis of an assertion that the entire $158,000.00 payment she made to Zafra Legal was paid in discharge of the debt she owed to Zafra Legal. Although Ms Stevenson has had ample opportunity to do so, she has adduced little evidence to support that assertion.
Ms Stevenson relied on six affidavits to oppose summary judgment. She filed four affidavits in these proceedings, the last on the morning of the hearing of the appeal. She also relied upon two affidavits filed in the related proceedings in the Supreme Court.
It was in the affidavit filed on the day of the hearing that for the first time, Ms Stevenson deposed that by making the payment that she did, she believed that she was paying off Zafra Legal's costs.[47] Ms Stevenson had not given this evidence previously.
[47] Affidavit of Candice Margaret Stevenson sworn 23 January 2024, par 7 (23 January 2024 Stevenson Affidavit).
In an affidavit that Ms Stevenson filed on 31 March 2023, Ms Stevenson deposed to having made a typographical error in an affidavit that she filed on 17 September 2019 when she said that she had paid $158,409.47 into the Wilson & Atkinson trust account. She said that she meant to say the Zafra Legal trust account.[48] The same affidavit also complained that Zafra Legal had transferred the payment to Wilson & Atkinson out of Zafra Legal's trust account without her instructions.[49] But the affidavit did not state that when she made the payment to Zafra Legal, she believed that she was paying off Zafra Legal's costs.
[48] 31 March Stevenson Affidavit, pars 7 and 8.
[49] 31 March Stevenson Affidavit, pars 7 and 8.
Nor did it appear to me that Ms Stevenson had said as much in any of the other affidavits that she had filed.
At the hearing of the appeal, counsel for Ms Stevenson contended that in par 73.3 of an affidavit that Ms Stevenson filed in the Supreme Court, she gave evidence that was consistent with the account that she gave in the affidavit she filed on the day of the hearing.[50] This is the same paragraph that Zafra Legal said supported its case.[51] Paragraph 73.3 stated:[52]
I forwarded the balance of the settlement cash component ($46,4874.64) and insurance payments ($158,400) to the defendants upon receipt totalling $205,274.64. This is consistent with my understanding that I was not the correct paying party and did not believe I was personally liable for the debt ...
[50] ts 22 - ts 27.
[51] See 53 above.
[52] 31 March Stevenson Affidavit, Attachment 'CMS 4', pages 216 - 217.
Counsel for Ms Stevenson said that this meant that Ms Stevenson was saying she paid $46,874.64 to Wilson & Atkinson and $158,000.00 to Zafra Legal.[53]
[53] ts 26.
This submission misses the point. There is no dispute that Ms Stevenson paid the sum of $158,000.00 to Zafra Legal. What is less clear is whether when she did so, she believed that she was paying off Zafra Legal's invoices only.
In fact, the statement made in par 73.3 does not assist Ms Stevenson. The paragraph does not state that she believed she was paying off Zafra Legal's costs when she made the payment. It states that her understanding was that she was not the correct paying party and she did not believe she was personally liable for the debt. Thus, she was saying that she believed that she had no debt to Zafra Legal at all, not that she believed that she was discharging her debt to Zafra Legal by making the payment she did. What she said is inconsistent with what she says now.
Ms Stevenson did not adduce any contemporaneous documentary evidence to support her claim that at the time she made the relevant payment she believed that all of the funds were to be used to pay off her debt, or that she communicated any such intention to Zafra Legal. For example, she did not produce any documentation concerning the transfer which recorded a particular purpose for the transfer when it was made. Where someone pays an invoice by electronic funds transfer, they will sometimes record the relevant invoice numbers as part of the transfer transaction to indicate the invoices being paid. There is no evidence that this was done in this case.
Ms Stevenson also submitted that it was significant that Mr Leslie had told her on a previous occasion to pay money due to Wilson & Atkinson into Wilson & Atkinson's trust account. There was no similar exchange when Ms Stevenson paid the $158,400.00 to Zafra Legal, however. It did not seem to me that what Mr Leslie told Ms Stevenson on a previous occasion shed much light on the purpose of the $158,400.00 transaction.
Further, Ms Stevenson has not explained why, if she believed Zafra Legal had misapplied the $71,222.49, she did not complain at the time.
Zafra Legal informed Ms Stevenson that it had paid the $71,222.49 to Wilson & Atkinson on 21 December 2016. $71,222.49 is a significant sum of money. If it had been incorrectly applied, it would be expected that Ms Stevenson would have been concerned. There is no evidence that Ms Stevenson complained to Zafra Legal at the time and she has not proffered evidence explaining why she failed to do so.
Further, if Ms Stevenson believed that the $71,222.49 was to be used to discharge her debt to Zafra Legal, it might be expected that when Zafra Legal contacted her on 29 March 2017 to ask for the $91,627.82 it claimed was outstanding, she would have pointed out that the balance outstanding was substantially less than that demanded, as she does now. Instead, her response was to ask for more time to pay the $91,627.82.
In general, it is not appropriate for the court to attempt to resolve conflicts of affidavit evidence on an interlocutory application.[54] Typically, on an interlocutory application the question of whether there is 'a serious question to be tried' or a claim or defence has 'reasonable prospects of success', is answered on the basis that the statements of fact contained in the affidavits on the application are accepted as true.[55]
[54] Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729, 734; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622; Pigozzo v Mineral Resources Ltd (No 2) [2023] FCA 1489 [15].
[55] See, for example, Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144 [91] - [94], [99], [101]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 [43] - [45]; Pigozzo v Mineral Resources Ltd (No 2) [15].
It does not follow, however, that I am bound to conclude that there is a triable issue because Ms Stevenson now asserts that when she made the $158,000.00 payment to Zafra Legal, she believed that she was discharging her debt to Zafra Legal.
In Eng Mee Yong v Letchumanan s/o Velayutham,[56] Lord Diplock observed:[57]
Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be.
[56] Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331.
[57] Eng Mee Yong v Letchumanan s/o Velayutham (341). See Pisano v South Metropolitan Health Service [2023] WASCA 80 [52(5)].
In this case, it seems to me that Ms Stevenson's evidence is self‑serving, consists of a bald assertion unsupported by contemporaneous documentary evidence, fails to explain her inaction when the payment was made, is inconsistent with the available contemporaneous documents and one of her previous statements. I am not prepared to accept that evidence as raising a dispute of fact which calls for further investigation.
Further and in any event, Ms Stevenson's evidence was limited to addressing her subjective belief. She did not say that she communicated her belief to Zafra Legal and there is no evidence she did. Not much weight can be attached to Ms Stevenson's subjective belief in such circumstances (even if her evidence were to be accepted). It cannot plausibly be argued that Zafra Legal agreed to accept the money tendered on the basis of Ms Stevenson's subjective belief, if that belief was not communicated to Zafra Legal.
Further, the contemporaneous documentary evidence suggests that Zafra Legal believed that it was accepting the $71,222.49 to pay Wilson & Atkinson's invoices. This is what was recorded in the Law Practice Trust Account Receipt issued by Zafra Legal and the email that Zafra Legal sent Ms Stevenson on 21 December 2016. Thus, whatever Ms Stevenson's subjective belief, Zafra Legal did not agree to accept the $71,222.49 on the basis that that sum was to be used to discharge Ms Stevenson's debt to Zafra Legal.
I have also considered the argument that Ms Stevenson makes that she did not instruct Zafra Legal to withdraw funds from their trust account to pay Wilson & Atkinson.[58] This argument does not depend on the acceptance of Ms Stevenson's evidence that she transferred the money to Zafra Legal for a particular purpose. Rather, it seems to involve an allegation that Zafra Legal breached an obligation that it owed to Ms Stevenson when it transferred money out of its trust account.
[58] 23 January 2024 Stevenson Affidavit, par 9.
When clause 19.2 of the Terms of Engagement is reviewed it may be seen that by that clause Ms Stevenson authorised Zafra Legal to use funds held on trust to pay costs and expenses directly. The clause therefore authorised Zafra Legal to withdraw the money paid from trust to pay Wilson & Atkinson.
Clause 19.2 also provided that written notice would be given before the funds were withdrawn and it appears that notice was not given until after the money was withdrawn. Even if it is accepted that Zafra Legal breached the clause, however, it is not apparent to me that this caused Ms Stevenson any loss.
Ms Stevenson's inaction when she was informed of the transfer the day after the transfer suggests that she would have been unlikely to have taken any action if she had been notified the previous day. There is also no dispute that Ms Stevenson owed Wilson & Atkinson the $71,222.49 paid. If the money had not been paid to Wilson & Atkinson, she would still have owed that sum, albeit to Wilson & Atkinson not Zafra Legal.
Finally, it is not apparent to me that any claim Ms Stevenson has that Zafra Legal breached an obligation it owed her constitutes a defence to Zafra Legal's claim. Ms Stevenson has not made a counterclaim, or pled a set‑off. The limitation period applicable to such a claim has also likely expired.

Conclusion

Ultimately, for all of these reasons, it seems to me that the matters raised by Ms Stevenson do not give rise to a triable issue. I am satisfied on the evidence that it is appropriate that summary judgment be entered for Zafra Legal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
31 JANUARY 2024