For the reasons given earlier, leave should be granted to bring the application out of time, the time for which is extended to the date of filing of the application (as amended). In relation to the other procedural requirements for an application for summary judgment, Mr Stoleski has deposed to his belief that there is no defence to the claim.
As noted, Mr Stoleski, as the applicant, bears the legal burden of persuading the court that there is no real question to be tried, that the claim is a good one and there is no defence to it. I am not satisfied there is no question to be tried.
There is no evidence of or explanation as to how the amount claimed has been arrived at or how the interest claimed is calculated. This is far from clear on the material before the court. There is also an issue that I consider requires further investigation as to whether the amount of $25,000 (increased to $50,000) payable by 15 April 2022, the subject of the March 2022 Acknowledgement, is the same $50,000 that is the subject of the first part of the May 2022 Acknowledgement.
As submitted on behalf of Mr Stoleski, Mr Micale acknowledges that an amount was loaned. He refers to an amount of '[l]ess than $85 thousand' being loaned. However, his evidence is to the effect that the money was not loaned or paid to him but to the Jacob Driver Group parties. Although Mr Micale accepts that he signed the Acknowledgements, he says he did so under duress.
Mr Micale has also raised issues in relation to the excessive amount of interest charged and claimed, which sees amounts of $25,000 advanced being doubled to $50,000 within a short period of time, and further interest being added. In relation to the May 2022 Acknowledgement, the interest alleged to have been agreed and now claimed is at a rate of $2,000 per day. Mr Micale claims the interest charged and claimed, in each case, is an unenforceable penalty. This is a matter that, in my view, requires further investigation and ought to be determined at trial, or at least be the subject of discovery and further evidence.
Although Mr Micale's affidavit does not address the issues raised in much detail, I am mindful that he is not legally represented.
The issues that have been raised by him are such that I cannot be satisfied, to the high degree of certainty required, about the ultimate outcome of the proceedings if the matter went to trial. They are matters that should, in my view, be the subject of discovery and, where necessary, oral evidence to be tested by cross‑examination at trial.
Of course, a trial is not the only way of resolving a dispute. As in most cases, the parties are encouraged to explore alternative ways of resolving the dispute between them, including by way of mediation, before further costs are incurred.
[2]
For these reasons, exercising the proper degree of care, I am not satisfied that this is a clear case in which there is no question to be tried and in respect of which it would be appropriate to grant summary judgment.
The application for summary judgment should be and is dismissed, and the defendant shall have unconditional leave to defend the proceedings.
Although the plaintiff has been unsuccessful, as the defendant is a litigant in person, he has not incurred legal costs. On that basis, subject to any matters the parties wish to be heard on, it seems appropriate that there be no order as to the costs of the plaintiff's unsuccessful summary judgment application.
Subject to hearing from the parties, I will make orders as follows in relation to the plaintiff's application for summary judgment by the amended chamber summons filed on 26 June 2025 (Application):
The plaintiff have leave to bring the Application, the time for which is extended to the date of filing.
The Application is dismissed.
The defendant have unconditional leave to defend the proceedings.
No order as to costs.
[3]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[4]
[1] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Archer J) (Cologna Investments) [27].
[5]
[3] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11] [2016] WASC 235 [4]; Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] - [41]; Westpac Banking Corporation v Anderson [2017] WASC 106 (Anderson) [38] (Pritchard J).
[18] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew v Frank Jasper) [10].
[14]
[19] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), (543) (Hope and Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). See also Sethi v Bhavsar [2020] WASCA 52 [27] (Mitchell and Vaughan JJA) in the context of an appellant's case.
[15]
[20] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] - [43] (Newnes JA, with whom Pullin and Buss JJA agreed); Glew v Frank Jasper [10].
[16]
[21] Affidavit of Basilio Micale sworn on 21 July 2025 (Micale Affidavit) [3].
Cases Cited (6)
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].