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…

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 4
Decision Date: 31 JANUARY 2024

CaseChat Overview and Summary

Zafra Pty Ltd v Stevenson [No 2] involved an application for summary judgment, out of time, brought by Zafra Pty Ltd against Ms Stevenson. The dispute centered on the payment of $158,000 made by Ms Stevenson to Zafra Legal, a company associated with Zafra Pty Ltd, and whether this payment satisfied the debt Ms Stevenson owed to Zafra Pty Ltd. The application was brought under O 14 r 1 of the Rules of the Supreme Court.

The court was required to determine whether there was a serious question to be tried regarding the nature of the payment made by Ms Stevenson to Zafra Legal, specifically whether the payment was intended to discharge Ms Stevenson's debt to Zafra Pty Ltd or to pay Wilson & Atkinson's invoices. The court also had to consider whether Ms Stevenson's affidavit evidence, which contradicted contemporaneous documentary evidence, could raise a triable issue.

The court found that it was not appropriate to resolve conflicts in the evidence on an interlocutory application, generally accepting the statements in the affidavits as true. However, the court could consider whether Ms Stevenson's affidavit evidence was credible and whether it raised a triable issue. The court concluded that Ms Stevenson's evidence was self-serving, lacked supporting documentation, was inconsistent with available documents and previous statements, and did not address her communication (or lack thereof) of her belief to Zafra Legal. The contemporaneous documentary evidence suggested that Zafra Legal believed the payment was for Wilson & Atkinson's invoices. Therefore, the court held that Ms Stevenson's evidence did not raise a triable issue.

The court dismissed the application for summary judgment, finding that there was a serious question to be tried regarding the nature of the payment made by Ms Stevenson. The court held that Ms Stevenson's affidavit evidence did not raise a triable issue, and the payment's purpose remained unclear.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.