PAFUMI -v- XPRESS FREIGHT SERVICES PTY LTD [2026] WASC 311

[2026] WASC 311 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PAFUMI -v- XPRESS FREIGHT SERVICES PTY LTD [2026] WASC 311 CORAM : MASTER RUSSELL HEARD : 21 JULY 2026 DELIVERED : 31 JULY 2026 FILE NO/S : CIV 1021 of 2025 BETWEEN : ANTONIETTA PAFUMI First Plaintiff ANTONIO PAFUMI Second Plaintiff AND XPRESS FREIGHT SERVICES PTY LTD First Defendant TRICIA ELIZA RADOTIC Second Defendant Catchwords: Practice and procedure - Summary judgment - Rules of the Supreme Court 1971 (WA) O 14 - Turns on own facts Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to Rules of the Supreme Court 1971 (WA) O 14 r 1 - Turns on own facts -- 1 of 31 -- [2026] WASC 311 Page 2 Legislation: Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 14 r 3 Supreme Court Act 1935 (WA) s 32 Result: Leave to bring application for summary judgment granted Summary judgment entered for the plaintiffs against the defendants Category: B Representation: Counsel: First Plaintiff : A Houghton Second Plaintiff : A Houghton First Defendant : J Singh Second Defendant : J Singh Solicitors: First Plaintiff : Arns & Associates Second Plaintiff : Arns & Associates First Defendant : Rebus Legal Second Defendant : Rebus Legal Cases referred to in decision(s): Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 Electricity Generation Corporation t/as Verve Energy v Woodside Energy [2013] WASCA 36 Eng Mee Yong v Letchumanan [1980] AC 331 -- 2 of 31 -- [2026] WASC 311 Page 3 Goh v First Industries Corp [2002] WASCA 341 Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 National Australia Bank v Freeman [2001] QCA 473 Pisano v South Metropolitan Health Service [2023] WASCA 80 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 TSW Analytical Pty Ltd v University of Western Australia [2017] WASC 67 Wallingford v Mutual Society (1880) 5 App Cas 685 Westpac Banking Corp v Ninan [2014] WASC 456 Westpac Banking Corporation v Anderson [2017] WASC 106 Westpac Banking Corporation v Cockerill (1998) 152 ALR 267 Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd [1990] WASC 396; (1990) 3 WAR 71 -- 3 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 4 MASTER RUSSELL: Overview 1 The first and second plaintiffs, Antonietta Pafumi and Antonio Pafumi, commenced this proceeding against the defendants, XPress Freight Services Pty Ltd (XFS) and its sole director, Tricia Eliza Radotic, on 13 January 2025. The plaintiffs claim payment of $751,100 alleged to be due and owing to them by the defendants under the terms of a loan agreement and guarantee, together with interest. 2 The loan agreement related to a vendor loan in relation to the sale of a property owned by the plaintiffs to XFS, under which the plaintiffs loaned XFS $750,000, repayment of which was guaranteed by Ms Radotic. The amount of $750,000 was provided by way of vendor loan to XFS upon settlement of the sale of the property on 2 May 2024. The plaintiffs claim that XFS failed to pay amounts due under the loan agreement when due and that the full amount of the loan of $750,000 together with default costs of $1,100 are due and payable by the defendants. 3 The second defendant, Ms Radotic, entered an appearance on 6 November 2025, as a self-represented litigant. 4 By chamber summons filed on 18 December 2025, the plaintiffs applied for leave to bring an application for summary judgment out of time and for summary judgment pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC). 5 On 10 February 2026, D'Angelo Legal filed a notice of change of representation on behalf of Ms Radotic. They ceased acting as the solicitors for Ms Radotic by orders made on 2 June 2026. 6 The plaintiffs' application for summary judgment was listed for hearing on 16 June 2026. Shortly before the hearing, a notice of change of representation was filed on behalf of each of the defendants. However, no appearance had been entered, at that stage, by XFS. It subsequently filed an appearance on 7 July 2026. 7 The defendants recently appointed legal representative appeared at the hearing on 16 June 2026 on behalf of Ms Radotic and, with the court's leave, on behalf of XFS and sought an adjournment of the hearing of the summary judgment application to allow them the -- 4 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 5 opportunity to take instructions and to file any further materials in opposition to the application. 8 For the reasons given at the hearing on 16 June 2026, the hearing of the application was adjourned to 21 July 2026, and orders were made giving the plaintiffs leave to amend their application to seek orders for summary judgment against XFS, upon an appearance being filed on its behalf, and for the filing of further affidavits and outlines of submissions. 9 On 8 July 2026, the plaintiffs filed an amended chamber summons seeking leave to bring an application for summary judgment out of time against the second defendant and for summary judgment against the first and second defendants (Application). 10 A further affidavit was filed by the second defendant in opposition to the application and the parties have each filed outlines of submissions. 11 In broad terms, the defendants contend that the loan agreement, the subject of the plaintiffs' claim, was entered into by them under duress and that they have a counterclaim against the plaintiffs for damages for repudiation of an earlier agreement and for loss of a business opportunity because of alleged delays by the plaintiffs in settlement of the contract for the sale and purchase of the property. They say that there are issues to be tried, and this is not an appropriate case for summary judgment. 12 For the reasons that follow, having considered the affidavits and submissions filed by the parties and the further submissions made at the hearing of the Application, I am satisfied that: (a) it is appropriate that the plaintiffs have leave to bring their application for summary judgment against the second defendant, Ms Radotic, and that the time to do so be extended to the date it was filed, 18 December 2025; (b) the plaintiffs have complied with the procedural requirements for an application for summary judgment in relation to the defendants and made out a prima facie case; (c) the defendants have not discharged their evidentiary burden of establishing that there is an arguable defence to the plaintiffs' -- 5 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 6 claim, an issue or question to be tried, or other reason why there ought to be a trial of the action; and (d) it is appropriate to enter summary judgment for the plaintiffs against the defendants in the amount of $751,100, together with interest. Materials relied on 13 In support of the Application, the plaintiffs relied on an outline of submissions filed on 8 May 2026, reply submissions filed on 14 July 2026 and affidavits of: (a) Antonio Pafumi, sworn on 18 December 2025 (First Antonio Pafumi Affidavit) and on 14 July 2026 (Second Antonio Pafumi Affidavit); (b) Linda Pafumi, sworn on 21 April 2026 (Linda Pafumi Affidavit); and (c) Antonietta Pafumi, sworn on 21 April 2026 (Antonietta Pafumi Affidavit). 14 In opposition to the Application, the defendants relied on an outline of submissions filed on 8 July 2026 and affidavits of Ms Radotic sworn on 13 April 2026 (First Radotic Affidavit), 17 April 2026 (Second Radotic Affidavit) and 7 July 2026 (Third Radotic Affidavit). 15 The plaintiffs objected to the Third Radotic Affidavit on the basis that it failed to provide an adequate explanation as to why the matters deposed to were not included in Ms Radotic's previous affidavits, as provided in the orders made on 16 June 2026. The plaintiffs also filed a schedule of objections to several paragraphs of the Third Radotic Affidavit. 16 To a significant degree, the Third Radotic Affidavit repeats and expands upon what was said in Ms Radotic's earlier affidavits. Ms Radotic does not clearly articulate why the further matters deposed to in the Third Radotic Affidavit, which would have been known to her, were not included in her earlier affidavits. Despite this, for the reasons given at the hearing of the Application, I allowed the Third Radotic Affidavit to be read and did not strike out the paragraphs objected to by the plaintiffs. -- 6 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 7 17 However, as I stated at the hearing of the Application, those paragraphs and much of the affidavit are to be given little weight as they largely contain conclusionary statements, unsupported by facts verifying the conclusions expressed, and do not identify or attach documents referred to. The Third Radotic Affidavit, as with Ms Radotic's other affidavits, does not descend to the level of detail or provide particulars of the defences sought to be advanced, as required in an application for summary judgment. Procedural requirements and applicable legal principles 18 The procedural requirements for an application for summary judgment were summarised by Archer J1 in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.2 19 Order 14 r 1(1) RSC provides that a plaintiff may apply for summary judgment against a defendant on the ground that the defendant has no defence to a claim included in the writ, where a statement of claim has been served on the defendant and that defendant has entered an appearance. 20 The writ and statement of claim have been served on each of the defendants, who have both now entered an appearance. 21 An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.3 The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.4 1 As her Honour then was. 2 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Cologna Investments) [27] (Archer J). See also Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 [12] - [14], [30] - [31] (Gething J). 3 RSC O 14 r 1(1). 4 Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] - [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J). -- 7 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 8 22 An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.5 23 The legal principles relating to an application for summary judgment are well established. The key principles were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows: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]. 24 The plaintiffs bear the legal burden of persuading the court that their claim is a good one and that there is no defence to it. If the plaintiffs' affidavits in support of the Application make out a prima facie case on these two matters, the evidentiary burden ordinarily passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.7 25 A defendant does not have to show a defence on the balance of probabilities. However, a defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend upon particulars - provide sufficient particulars and details of their defence - in their affidavit.8 Leave to bring application out of time 26 The plaintiffs require and seek leave to bring the Application against Ms Radotic, as it was not made within 21 days after she entered her appearance as required under O 14 r 1(1) RSC. Ms Radotic entered an appearance on 6 November 2025. As such, the time for bringing an 5 RSC O 14 r 2(1). 6 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. 7 Westpac Banking [53] - [54], [103]. See also Lafferty [54] and the authorities referred to. 8 See Lafferty [54], citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Moscow Narodny Bank), 113 (Brinsden J), in turn citing Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn). -- 8 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 9 application for summary judgment against her without leave expired on 27 November 2025. The application was filed 21 days later, on 18 December 2025. 27 I am satisfied on the materials before me that, although there was a delay in bringing the Application, it is relatively short and was justifiable in the circumstances. The application was still brought at an early stage of the proceedings before a defence had been filed and before any legal costs had been incurred by Ms Radotic who was not legally represented at the time the application was filed. There is no evidence of any prejudice to her caused by the short delay in bringing the Application. 28 In the circumstances of this case, I am satisfied that it is appropriate that the plaintiffs should have leave to bring the Application. The time for doing so should be, and is, extended to the date of filing, 18 December 2025. Facts relevant to the plaintiffs' claim and the Application 29 The following facts, verified by the affidavits filed, make up the essential elements of the plaintiffs' claim. 30 The plaintiffs owned a property at 837 Beaufort Street, Inglewood, Western Australia (Property).9 On 31 December 2023, the plaintiffs and XFS entered into a contract by offer and acceptance for the plaintiffs to sell and for XFS to purchase the Property at a purchase price of $1,800,000 including GST (Contract).10 31 A dispute arose between the plaintiffs and XFS in relation to the terms of the sale, including the enforceability of the terms on which the plaintiffs were to loan part of the purchase price, by way of vendor finance, to XFS.11 32 The parties were represented by solicitors.12 The dispute was resolved on 30 April 2024 and, on that date, the plaintiffs and the defendants entered into a written loan agreement and guarantee 9 First Antonio Pafumi Affidavit [5]. 10 First Antonio Pafumi Affidavit [6] - [7], 'AP-2', 'AP-3'. 11 First Antonio Pafumi Affidavit [7]. 12 First Antonio Pafumi Affidavit [8]. -- 9 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 10 (Loan Agreement) in relation to the part of the purchase price that was to be loaned to XFS by the plaintiffs.13 33 Pursuant to the Loan Agreement, the plaintiffs agreed to loan XFS $750,000 (Loan Amount) towards the purchase price of the Property, which XFS agreed to repay to the plaintiffs in accordance with the terms of the Loan Agreement, and Ms Radotic agreed to guarantee repayment of the Loan Amount and any other money XFS is liable to pay to the plaintiffs in connection with the Loan Agreement.14 34 The advance of $750,000 was provided by way of vendor finance and is recorded in the settlement statement dated 2 May 2024 for the sale of the Property as 'Seller Loan'. A rebate of $85,000 in cash was paid to XFS, as provided in the Loan Agreement.15 35 Relevantly, pursuant to the terms of the Loan Agreement: (a) XFS agreed to repay the Loan Amount, by six equal instalments of $125,000, with the first instalment payable 90 days after settlement, and each subsequent payment at 90-day intervals, such that the last instalment was to be paid 540 days after settlement;16 (b) XFS would be in default of the Loan Agreement if:17 (i) it failed to make a payment of an instalment of the Loan Amount when due; and/or (ii) it failed to perform any of its other obligations under the Loan Agreement and failed to rectify the default within seven business days of its occurrence or any longer period agreed by the plaintiff. (c) if XFS was in default, the plaintiffs may issue to XFS a notice requiring it to remedy the default within 14 days of the notice;18 (d) if a default was not rectified within 14 days or any longer period agreed by the plaintiffs, the plaintiffs may, at their election, give 13 First Antonio Pafumi Affidavit [9], 'AP-4' (Loan Agreement). The Loan Agreement annexed to the First Antonio Pafumi Affidavit at 'AP-4' is signed only by the plaintiffs. The Linda Pafumi Affidavit annexes the Loan Agreement signed by the defendants at [17], 'LP-10'. 14 First Antonio Pafumi Affidavit [9], 'AP-4'. 15 Antonietta Pafumi Affidavit [6], 'AP10'; Loan Agreement clause 7. 16 Loan Agreement clause 5. 17 Loan Agreement clauses 9(a), 9(b). 18 Loan Agreement clause 9. -- 10 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 11 written notice to XFS, that the entirety of the Loan Amount or balance then outstanding would become immediately due and payable;19 (e) XFS shall pay the plaintiffs' reasonable costs associated with remedying any default and in relation to any legal proceedings commenced as a consequence of any default or to recover the amount owing or any part of it;20 (f) Ms Radotic, as guarantor, unconditionally guaranteed the due and punctual payment by XFS to the plaintiffs of all amounts payable under the Loan Agreement, whether demanded or not;21 and (g) the guarantee given by Ms Radotic is a principal obligation, which may be enforced against her without the plaintiffs being required to exhaust any remedy they may have against XFS and remains in force and effect until the Loan Amount has been paid in full.22 36 On 15 August 2024, following a request made by the defendants, the plaintiffs agreed to extend the time for repayment of the first instalment of $125,000 to 29 October 2024, and for all subsequent repayments to be pushed back by 90 days, so that the final repayment was due to be paid on 22 January 2026.23 Default relied upon by the plaintiffs 37 XFS failed to pay the first instalment of $125,000 to the plaintiffs when it was due, on 29 October 2024.24 38 On 18 November 2024, the plaintiffs' solicitors sent a default notice dated 15 November 2024 (Default Notice) to the defendants.25 The Default Notice specified the default and required the defendants to rectify the default by paying $125,000 by the time specified in the notice, being 14 days from the date of service of the notice. 19 Loan Agreement clauses 10(b), 11(a). 20 Loan Agreement clauses 11(b), 11(c). 21 Loan Agreement clause 13(a). 22 Loan Agreement clause 13(b). 23 First Antonio Pafumi Affidavit [10] - [11], 'AP-5'. 24 First Antonio Pafumi Affidavit [12]. 25 First Antonio Pafumi Affidavit [13], 'AP-6', 'AP-7'. -- 11 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 12 39 The Default Notice stated that if the amount of $125,000 was not paid within 14 days from the date of service of the notice, the entirety of the Loan Amount, being $750,000, shall at the election of the plaintiffs, become immediately due and payable. The Default Notice also stated that the defendants were required to pay the plaintiffs legal costs incurred in respect of the default of $1,100 inclusive of GST. 40 No response was received to the Default Notice, and the defendants did not rectify the default.26 41 On 13 December 2024, the plaintiffs' solicitors sent a letter to the defendants notifying them that, unless the Loan Amount of $750,000, together with costs, was paid to the plaintiffs by 19 December 2024, the plaintiffs would commence proceedings to recover that amount from the defendants without further notice.27 42 No payments have been made by the defendants.28 The plaintiffs commenced these proceedings to recover the amount owed under the Loan Agreement. 43 Antonio Pafumi deposes to his belief on behalf of the plaintiffs that there is no defence to the claim. The plaintiffs seek orders for summary judgment for the Loan Amount owing under the Loan Agreement of $750,000 together with legal costs of $1,100 incurred in relation to the default, and interest pursuant to s 32 of the Supreme Court Act 1935 (WA) from 29 October 2024 to the date of judgment.29 They also seek their costs of the Application and of the action. 44 When asked during the hearing of the Application the basis upon which interest is claimed from 29 October 2024, counsel for the plaintiffs submitted that was the date on which the first instalment was due and not paid. On reflection, he clarified that interest was claimed from the date of the letter demanding payment of the total Loan Amount and costs, being 13 December 2024. Compliance with procedural requirements 45 For the reasons set out earlier, I am satisfied that leave should be, and is, granted to the plaintiffs to bring the application for summary judgment out of time against Ms Radotic. 26 First Antonio Pafumi Affidavit [14]. 27 First Antonio Pafumi Affidavit [15], 'AP-8', 'AP-9'. 28 First Antonio Pafumi Affidavit [16]. 29 First Antonio Pafumi Affidavit [17]. -- 12 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 13 46 I am also satisfied that the other procedural requirements for an application for summary judgment have been complied with. A statement of claim has been served on both defendants, who have each entered an appearance, and the plaintiffs have filed affidavits deposing to the facts verifying their claim. Mr Pafumi has deposed to his belief on behalf of the plaintiffs that there is no defence to the claim. Have the plaintiffs made out a prima facie case? 47 I am satisfied, on the evidence before me, as outlined, that the plaintiffs have made out a prima facie case that they are entitled to the amount claimed under the terms of the Loan Agreement against each of the defendants. 48 In my view, the plaintiffs' case is clearly established on the evidence before the court. XFS defaulted under the terms of the Loan Agreement by failing to make the first repayment of $125,000 when it was due and payable, or any payment. A Default Notice has been served on both XFS and Ms Radotic. The default was not remedied, and no payments have been made by XFS or Ms Radotic. Demand was made for repayment of the Loan Amount of $750,000, which remains outstanding in full together with the costs of default claimed in the amount $1,100, which the plaintiffs are entitled to recover under the terms of the Loan Agreement. 49 As such, XFS and Ms Radotic are prima facie liable to pay the amount claimed to the plaintiffs in accordance with the terms of the Loan Agreement and the guarantee given under it. 50 I turn then to consider the defendants' position in relation to the Application and whether the defendants have discharged their evidentiary burden of establishing an arguable defence to the plaintiffs' claim or that there is an issue to be tried or some other reason why there should be a trial of the action. The defendants' position in relation to the Application 51 By way of overview, it was submitted on behalf of the defendants that the Loan Agreement was entered into by them in circumstances of unconscionability and under economic duress. They also claim to have a counterclaim against the plaintiffs for damages alleged to have been caused by the plaintiffs' repudiation of an earlier agreement relating to the financial arrangements for XFS' purchase of the Property, and for the loss of a business opportunity. -- 13 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 14 52 In her first affidavit, Ms Radotic deposes to the circumstances in which she entered into the Loan Agreement. In December 2023, Ms Radotic was appointed as the sole director of XFS, which she says was a start-up business in the mining sector, specialising in bulk iron ore haulage.30 She deposes that, at that time, XFS identified an opportunity to acquire truck and trailer assets and haulage contracts in the Pilbara region. She says that the viability of the opportunity depended on XFS being able to secure financing for equipment and acquiring a suitable property to support operations and financing.31 53 In relation to the purchase of the Property from the plaintiffs, Ms Radotic deposes to discussions with the real estate agent and to two offers and acceptances having been signed in relation to the Property, each on different terms, as set out in the First Radotic Affidavit. One provided for a purchase price of $1.56 million including GST,32 and the other a purchase price of $1.8 million, which included a cash back component.33 54 Ms Radotic deposes to matters leading up to settlement, the original date for which was 30 January 2024 and eventually occurred on 2 May 2024, including various exchanges between the parties' settlement agents and solicitors in relation to the terms of the sale and purchase of the Property, to the negotiation and signing of a replacement loan agreement (the Loan Agreement) on 30 April 2024, and to settlement of the Contract occurring on about 2 May 2024.34 55 It is not in dispute that the parties signed two alternate contracts for the sale and purchase of the Property on 31 December 2023 together with a loan agreement in respect of vendor finance to be provided for $500,000 of the purchase price, and a confidentiality agreement, which provided, amongst other things, for payment of a cash rebate to XFS by the plaintiffs of $170,000 in relation to the higher purchase price of $1.8 million.35 56 The loan agreement dated 31 December 2023 provided that the vendor finance to be provided was to be in an amount of $500,000 in respect of the higher purchase price, and $400,000 in respect of the 30 First Radotic Affidavit [4]. 31 First Radotic Affidavit [5] - [6]. 32 Ms Radotic refers in her affidavits to an alternate purchase price of $1.54 million. However, the offer and acceptance attached to the First Radotic Affidavit as 'TER1' states a price of $1.56 million. It is accepted that the reference in the materials to $1.54 million is in error. 33 First Radotic Affidavit [8] - [13], 'TER1'. 34 First Radotic Affidavit [14] - [56]. 35 First Radotic Affidavit [10] - [12], 'TER1'; Second Radotic Affidavit [4], 'TER24', 'TER25'. -- 14 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 15 contract for the purchase of the Property at the lower price of $1.56 million.36 57 It is not disputed that the amount of the vendor finance was increased to $750,000 by an addendum to the loan agreement signed by the parties on 4 March 2024.37 58 The confidentiality agreement signed by the plaintiffs and XFS on 31 December 2023 (Confidentiality Agreement)38 relates to confidential information provided to XFS, as the buyer, by the plaintiffs, as the seller. Amongst other things relating to XFS' obligations to keep certain information confidential, the Confidentiality Agreement provides that: (a) the parties intend to proceed with the contract for sale of $1.8 million including GST (the Contract) (clause 21); (b) at settlement, XFS will pay the plaintiffs $1.8 million, to include $500,000 representing the vendor finance 'as per the loan agreement', and $170,000 (the cash rebate) to be remitted by the plaintiffs to XFS' nominated bank account (clause 22); and (c) if the contract for sale of $1.8 million does not proceed for whatever reason, the fallback position will prevail and the contract for sale of $1.56 million will proceed (clause 23). 59 Ms Radotic deposes that she experienced difficulties in securing funding, which resulted in settlement delays.39 Short-term finance was secured by XFS on 21 March 2024 through a third-party lender for $1,060,000 in respect of which, Ms Radotic deposes that, upfront fees and prepayment of interest totalling $90,610.65 were payable.40 XFS' settlement agents informed the plaintiffs' agents that XFS was ready and able to settle on 25 March 2024.41 60 Ms Radotic says that on 22 March 2024, the plaintiffs gave notice that they were refusing to proceed with settlement on the terms of the original contract,42 and deposes to subsequent communications between 36 Second Radotic Affidavit, 'TER24', page 6, clause 1. 37 Second Radotic Affidavit [4.4], 'TER25'. 38 Second Radotic Affidavit [4.5], 'TER26'. 39 First Radotic Affidavit [19]. 40 First Radotic Affidavit [20] - [21], 'TER2'. 41 First Radotic Affidavit [23]. 42 First Radotic Affidavit [24], 'TER4'. -- 15 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 16 the parties' agents and solicitors. On an objective review of those communications, it is evident that a dispute arose between the parties in relation to the form and validity of the original loan agreement and its ability to be lodged with Landgate as security for the vendor loan, and in relation to payment of the cash rebate of $170,000. Drafts of what became the Loan Agreement were exchanged with each party proposing amendments.43 61 The Loan Agreement was executed by the parties on 30 April 2024 and settlement of the sale and purchase of the Property at the purchase price of $1.8 million occurred on about 2 May 2024. 62 Ms Radotic deposes at a high level of generality to costs incurred to meet settlement and states as a conclusion that she 'kept the Plaintiff informed of the challenges, including financing, financial obligations and commercial constraints'. She also states as a conclusion that she was at risk of a loan recall and losing the business opportunity and the commercial contract she was relying on for the Property settlement. She says that she understands that 'the Plaintiff' was aware of these matters because they were communicated 'to him'.44 However, she does not depose to how it is said 'the Plaintiff' was aware, what was communicated to him, how or when. 63 In general terms, in the Second Radotic Affidavit, Ms Radotic deposes that the structure of the transaction caused difficulties in securing finance, necessitating extensions to the settlement date. She refers to the difficulties being a consequence of seeking funding to complete the purchase of the Property at the higher offer and acceptance price of $1.8 million and deposes to the circumstances in which extensions to the settlement date were sought and granted.45 64 Ms Radotic refers to matters stated in the First Radotic Affidavit, including that the plaintiffs would not proceed to settlement with the vendor finance component because of difficulties with the form of the earlier loan agreement and addendum, which they said would not be accepted for registration by Landgate.46 65 Although the Confidentiality Agreement provides that the plaintiffs and XFS intended to proceed with the contract at a purchase price of $1.8 million, Ms Radotic deposes in the Second Radotic 43 First Radotic Affidavit [25] - [50], 'TER5' - 'TER23'. 44 First Radotic Affidavit [51] - [54]. 45 Second Radotic Affidavit [10] - [16]. 46 Second Radotic Affidavit [17] - [19], 'TER24'. -- 16 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 17 Affidavit that the plaintiffs required settlement to proceed at the higher price of $1.8 million and says that she 'was therefore no longer able to exercise the option to settle' at the lower price of $1.56 million.47 Ms Radotic says that the plaintiffs refused to settle on the terms of the alternate contract, at a price of $1.56 million and, on 17 April 2024, demanded payment of $1.8 million and issued a default notice.48 66 Ms Radotic does not include all of the communications in the First or Second Radotic Affidavits, but there followed an exchange of communications between the parties' lawyers during which the terms of what became the Loan Agreement were negotiated. As noted, the Loan Agreement was signed on the terms ultimately agreed between the parties on 30 April 2024,49 and settlement proceeded on 2 May 2024 at the sale price of $1.8 million.50 67 Ms Radotic says that the $750,000 was never physically provided by the plaintiffs to the settlement agent or to her and that there was no physical movement of money for the vendor finance transaction at settlement.51 Given the nature of the transaction, there is nothing particularly unusual about this. This amount was provided to XFS by way of a 'Seller Loan' upon settlement, as recorded in the settlement statement.52 Repayment of the 'Seller Loan' (the Loan Amount) was provided for in the Loan Agreement, and is the subject of this action and the Application. 68 The Third Radotic Affidavit repeats and expands upon the matters raised in Ms Radotic's earlier affidavits. She deposes that the initial settlement date of 30 January 2024 was pushed back because XFS was unable to secure finance and says that the parties discussed flexibility around a settlement date 'given the beneficial nature of the sale/purchase of the Property for $1,800,000.00 to both the Plaintiffs and the Defendants'.53 69 Ms Radotic deposes that, in March 2024, she informed Mr Pafumi and the real estate agent that, to satisfy the higher purchase price for the Property of $1.8 million, an increase in the vendor finance amount would be required.54 An addendum to the initial loan agreement was 47 Second Radotic Affidavit [23] - [24]. 48 Second Radotic Affidavit [25] - [26]. 49 Linda Pafumi Affidavit [4] - [17], 'LP-1' - 'LP-10'. 50 First Radotic Affidavit [56]; Antonietta Pafumi Affidavit [6], 'AP10'. 51 Second Radotic Affidavit [27] - [28]. 52 Antonietta Pafumi Affidavit [6], 'AP10'. 53 Third Radotic Affidavit [22]. 54 Third Radotic Affidavit [23]. -- 17 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 18 signed on 4 March 2024 increasing the vendor finance amount from $500,000 to $750,000 under the option to purchase the Property for $1.8 million.55 70 Ms Radotic refers, at a high level of generality and in a conclusionary manner, to conversations she had with the real estate agent and Mr Pafumi in which she said that she was proceeding with an application to a private equity fund and that, once she had funds, settlement would need to proceed immediately so she could secure the Property to capitalise on the business opportunity.56 She does not say when these conversations took place. She says XFS gave notice on 22 March 2024 that settlement could proceed on the sale of the Property at the sale price of $1.8 million.57 71 Ms Radotic deposes in the Third Radotic Affidavit to communications between the parties' lawyers that lead to the signing of the Loan Agreement and says that, as of 25 March 2024, XFS had incurred upfront costs to secure the loan, interest was accumulating, and it was liable for interest and fees associated with a short-term bridging loan.58 72 Ms Radotic states that she and XFS were under 'commercial, contractual and financial distress to secure an outcome as quickly as possible, to secure the Property' so that Ms Radotic could generate income from the business opportunity. She says that, throughout April 2024, XFS was 'in damage control and was doing everything possible to stem the losses and navigate the obstacles created by the Plaintiffs with the view of retaining the Business Opportunity'.59 73 Ms Radotic says that she believes that the selling agents advised Mr Pafumi of the extent of the damage being caused to XFS as a result of the delays in settlement, but she says nothing as to the basis of such belief. She says that the ‘new’ Loan Agreement was drafted on around 30 April 2024 and, in effect, that because of the mounting commercial, contractual and financial pressure she says was being applied, there was no reasonable alternative than for the defendants to sign the Loan Agreement.60 55 Third Radotic Affidavit [24]. 56 Third Radotic Affidavit [27]. 57 Third Radotic Affidavit [28]. 58 Third Radotic Affidavit [29] - [31]. 59 Third Radotic Affidavit [32] - [33]. 60 Third Radotic Affidavit [34] - [36]. -- 18 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 19 74 Ms Radotic says that, by the time the Property was transferred to XFS in early May 2024, the business opportunity was assigned to a competitor as it took too long for XFS to secure real property.61 75 It was submitted on behalf of the defendants, in effect, that the Loan Agreement was executed under economic duress and under a duty to mitigate their loss. In addition, the defendants submit that they have a counterclaim against the plaintiffs for loss and damage arising from the plaintiffs' failure to perform their obligations. 76 The defendants submit that there are several issues, which should be determined at trial and that this is not an appropriate case for summary judgment. Proposed defence and counterclaim 77 Attached to the Third Radotic Affidavit is a minute of proposed defence and counterclaim (Minute).62 78 The Minute says that the plaintiffs, their real estate agent and Ms Radotic 'engaged in commercial discussions and representations in early December 2023, concluding on or around 30 December 2023, for the sale and purchase of the Property', defined as 'Commercial Representations'.63 The evidence adduced in opposition to the Application does not support that the alleged Commercial Representations, as set out in the Minute,64 were made in December 2023, as contended. 79 The Minute refers to the events and negotiations leading up to the execution of the Contract and the Loan Agreement. Amongst other things, it refers to the offer and acceptances signed on 31 December 2023 to purchase the Property for $1.56 million65 and for $1.8 million, together as the 'Alternate Contract', and to the earlier loan agreement executed on 31 December 2023, the Confidentiality Agreement and the addendum to the loan agreement signed on 4 March 2024 together as 'LA1'.66 61 Third Radotic Affidavit [37]. 62 Third Radotic Affidavit [38], 'TER27' (Minute). 63 Minute [4(b)]. 64 Minute [4(c)]. 65 The Minute also refers in error to an alternate purchase price of $1.54 million, as opposed to $1.56 million. It is accepted that the figure should be referred to in each case as $1.56 million. 66 Minute [4(d)] - [4(j)]. -- 19 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 20 80 The Minute alleges, in effect, that the plaintiffs declined to proceed with the sale of the Property on 22 March 2024 for $1.8 million because the initial loan agreement and the addendum to it were not prepared by a lawyer and could not be registered with Landgate. This is defined in the Minute as the Repudiation.67 It is alleged, in effect, that the Loan Agreement the subject of the plaintiffs' claim, which the defendants say was on different terms to LA1, and included Ms Radotic as guarantor, was executed by the defendants to mitigate loss suffered by them arising from the Repudiation, and under economic duress.68 81 The defendants deny the express terms of the Loan Agreement, as pleaded by the plaintiffs, but do not state what they contend the terms were.69 Other than accepting that the Property was transferred in to XFS' name on 2 May 2024,70 the proposed defence denies the allegations made in the amended statement of claim in respect of the advance of the Loan Amount by way of vendor finance to XFS, the non-payment of the first instalment by the extended time for payment, the issue of the Default Notice and subsequent pre-action letter, and failure to pay the amount outstanding under the Loan Agreement. The defendants deny that the plaintiffs are entitled to the relief claimed, or to any relief.71 82 The proposed counterclaim in the Minute alleges that the plaintiffs repudiated LA1 on 22 March 2024, that Ms Radotic suffered financial hardship as a result of the 'Repudiation' on 25 March 2024, giving rise to a duty to mitigate her loss and that, to avoid financial ruin, she had no reasonable alternative but to sign the Loan Agreement on 30 April 2024.72 83 It is not entirely clear from the Minute whether the alleged 'Repudiation' on 25 March 2024 and the alleged repudiation of LA1 on 22 March 2024 are different. Counsel for the defendants clarified at the hearing of the Application that there is only one alleged 'repudiation'. The defendants' position is, in effect, that: (a) on securing third party finance for the purchase of the Property, XFS' settlement agent informed the plaintiffs' settlement agent 67 Minute [5(a)] - [5(e)]. 68 Minute [5(f)] - [5(g)]. 69 Minute [6]. 70 Minute [7(c)]. 71 Minute [7] - [14]; Amended statement of claim filed on 15 May 2026 [7] - [15]. 72 Minute [18(a)] - [18(b)]. There are two paragraphs numbered 18(b). -- 20 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 21 that XFS was ready to proceed to settlement of the sale and purchase of the Property on 25 March 2024; (b) on 22 March 2024, the plaintiffs raised issues with the vendor loan of $750,000 and the cash rebate of $170,000 and refused to proceed to settlement under the terms of LA1; (c) XFS needed to secure the Property to secure and 'capitalise' on the business opportunity of the haulage contract and the defendants were in a difficult financial position, having committed to the third-party loan, on which interest had started to accrue, and significant costs had been incurred by them; (d) the plaintiffs knew about the business opportunity, that the defendants were in a difficult financial position and that they needed to secure the Property and proceed with the sale to 'capitalise' on the business opportunity; (e) the defendants had no choice but to agree to the terms of the Loan Agreement and to sign it to mitigate their loss; (f) within a short time after settlement of the sale and purchase of the Property, the haulage contract that formed the basis for the defendants' business opportunity was assigned to another party and lost to the defendants; and (g) the defendants have a counterclaim against the plaintiffs for losses arising from the plaintiffs' failure to perform their contractual obligations under LA1 and for loss of the business opportunity. 84 It is acknowledged by the defendants that the sale and purchase of the Property was completed, with settlement on 2 May 2024 and ownership of the Property was transferred to XFS. Upon settlement, the vendor finance was advanced under the Loan Agreement, XFS paid the balance of the purchase price and received the cash back amount of $85,000 provided under the Loan Agreement. 85 The defendants allege that the plaintiffs knew that Ms Radotic would suffer financial hardship if there were delays between obtaining finance and settlement.73 No particulars are given in the First and Second Radotic Affidavits as to such knowledge beyond Ms Radotic stating, as a conclusion, that she kept the plaintiffs informed of 73 Minute [18(c)]. -- 21 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 22 'the challenges, including financing, financial obligations and commercial constraints' and of the 'costs, expenses and losses' she was incurring as a result of the delay in settling.74 86 In the Third Radotic Affidavit, Ms Radotic states at a high level that she had several conversations with the plaintiffs' real estate agent and Mr Pafumi where she stated that she was proceeding with an application to a private equity fund and the interest, fees and costs structure that applied and would need to settle as soon as funds were received so she could secure the Property to capitalise on the business opportunity.75 87 It is alleged that the Loan Agreement was unnecessary, repudiated LA1 and was unconscionable.76 Ms Radotic claims to have suffered loss and damage associated with the alleged repudiation of LA1,77 and the defendants claim damages and loss of business opportunity. The Minute merely states that full particulars of Ms Radotic's loss and damage will be provided before trial.78 No loss or damage is pleaded in relation to XFS, and no evidence has been adduced as to the loss and damage alleged to have been suffered by the defendants, other than in broad terms. 88 Ms Radotic says very little about the 'business opportunity' that is alleged to have been lost, that securing the business opportunity was conditional or dependent in some way on securing the Property (as opposed to any real property), or how any loss and damage suffered by the defendants is said to be attributable to the plaintiffs. 89 In the Third Radotic Affidavit, Ms Radotic describes the 'business opportunity' as an opportunity that arose around the beginning of December 2023 to secure the rights, assets and revenue of a commercial third party haulage entity through an assignment/transfer of contract and a directorship of XFS to facilitate the assignment/transfer.79 She says that prior to December 2023, the entity was subcontracted to a head contractor for the haulage of iron ore from a Pilbara region mine site.80 74 First Radotic Affidavit [52] - [54]; Second Radotic Affidavit [29]. 75 Third Radotic Affidavit [27]. 76 Minute [18(d)]. 77 Minute [19]. 78 Minute [20]. 79 Third Radotic Affidavit [4]. 80 Third Radotic Affidavit [5]. -- 22 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 23 90 Ms Radotic says that she believes from her consultations and meetings with XFS' previous director and from her review of agreements, financial documents, projections and proposals passing between the entity and XFS in around early December 2023, that the entity's director agreed to transfer/assign the haulage contract to XFS upon confirmation that:81 (a) a suitably qualified and approved director has been appointed to XFS; (b) the company held assets such as trucks, trailers and dollies, real property and working capital of at least $150,000 to service approximately two months of haulage business operations under the contract with the head contractor; and (c) employ the entity's director for a period of six months from the date the contract is assigned. 91 In the Third Radotic Affidavit, Ms Radotic deposes that she spoke to the real estate agent and Mr Pafumi, in addition to representatives of XFS, in December 2023 and states as a conclusion that the business opportunity generally and the urgency to secure the Property to secure the business opportunity, and the profits under it were discussed.82 92 In that affidavit, Ms Radotic states as a conclusion that, once assigned, the haulage contract would generate a profit of approximately $100,000 per month.83 As I understand her evidence, this is said to be the profit that would be generated per truck for a period of 10 - 12 months period starting in around December 2023 to clear out significant excess iron ore stores. Once the excess iron ore was cleared out, she says that the profit per truck would drop to about $40,000 per month.84 Ms Radotic does not say how many trucks were, or were proposed to be, operating. Her evidence does not extend to saying that those matters were or other information about the business opportunity were communicated to the plaintiffs, or either of them. 93 On 9 July 2026, the plaintiffs' solicitors sought production of the agreements, financial documents, projections and proposals referred to by Ms Radotic in paragraphs 6, 11 and 19 of the Third Radotic Affidavit. Mr Pafumi deposes that, as at the date of the Second Antonio 81 Third Radotic Affidavit [6]. 82 Third Radotic Affidavit [14(c)] - [14(d)], referring to First Radotic Affidavit [8]. 83 Third Radotic Affidavit [7]. 84 Third Radotic Affidavit [8] - [9]. -- 23 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 24 Pafumi Affidavit, 14 July 2026, the documents have not been produced.85 Is there an arguable defence, an issue to be tried or some other reasons why there should be a trial of the action? 94 The defendants submit that there are numerous issues in dispute that will need to be determined if the action proceeds to trial, as outlined in the defendants' submissions, relating to: (a) construction of the contractual arrangements between the parties; (b) whether the plaintiffs' conduct amounted to a repudiation, as alleged; (c) the legal effect of the Loan Agreement; (d) whether the defendants entered into the Loan Agreement under duress; (e) the defendants' alleged counterclaim for loss and damage arising from the delays in settlement of XFS' purchase of the Property and the defendants' loss of the business opportunity. 95 For the purpose of the Application, the real issues I consider arise are whether the defendants have demonstrated that there is an arguable defence, an issue to be tried or some other reason why the action should proceed to trial in respect of: (a) the defendants' contention that the Loan Agreement was executed by the defendants under economic duress, as a result of any unconscionable conduct on the part of the plaintiffs; and/or (b) the defendants' proposed counterclaim against the plaintiffs for loss and damage alleged to have been suffered because of the plaintiffs' alleged repudiation of LA1 and the loss of the business opportunity. 96 I will deal with each in turn. 85 Second Antonio Pafumi Affidavit [8]. -- 24 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 25 Whether the Loan Agreement was executed under economic duress as a result of any unconscionable conduct 97 As a matter of practice, an application for summary judgment will ordinarily 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, can be established at the trial of the action. However, the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit or pleaded by a defendant.86 98 In the context of a summary judgment application, it is necessary that the defendants' affidavit or affidavits condescend to particulars. It is not enough to swear that the Loan Agreement was signed under duress or in circumstances of unconscionability. The defendants must provide details of the facts relied upon for the defence or defences alleged, so as to satisfy the court that there are facts which make it reasonable to raise such a defence.87 99 As submitted on behalf of the plaintiffs, the facts deposed to and the defendants' bare allegation of economic duress do not support the essential elements of a claim for economic duress, including:88 (a) that pressure was applied to the defendants, and this was one of the reasons why they entered into the Loan Agreement; and (b) that the pressure was illegitimate, so as to negate their consent. 100 Mere commercial pressure, even overwhelming pressure, will not necessarily constitute duress. An absence of choice does not constitute duress and does not negate consent.89 In Crescendo Management,90 McHugh JA observed that: 86 See Pisano v South Metropolitan Health Service [2023] WASCA 80 (Buss P, Vaughan & Hall JJA) (Pisano) [52.5], [53] - [54], citing Eng Mee Yong v Letchumanan [1980] AC 331, 341. Pisano concerned an application for summary judgment pursuant to RSC O 16 r 1(1). The same principles apply to an application under RSC O 14 r 1. 87 See Moscow Narodny Bank (113) (Brinsden J). See also Westpac Banking Corp v Ninan [2014] WASC 456 [10] (Chaney J). 88 See Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (Crescendo Management), 45 - 46 (McHugh JA, Samuels & Mahoney JJA agreeing); Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2013] WASCA 36 [24]. 89 Crescendo Management (45 - 46), referring to Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104, 120 - 121. 90 Crescendo Management (46). See also Westpac Banking Corporation v Cockerill (1998) 152 ALR 267; NAB v Freeman [2001] QCA 473. -- 25 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 26 The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. 101 The affidavits filed in opposition to the Application make bare assertions of conduct on the part of the plaintiffs, which it is submitted was unconscionable, and are relied upon to allege that the Loan Agreement was signed under economic duress or in circumstances where it would be unconscionable to allow the plaintiffs to enforce the Loan Agreement. 102 I am not satisfied that the facts deposed to in Ms Radotic's affidavits or pleaded in the Minute, which are expressed at a high level of generality, are such as to disclose an arguable defence. They do not support the defendants' contentions as to any unconscionable conduct, duress, or any other vitiating element in relation to the execution of the Loan Agreement by the defendants. The evidence does not descend to particulars that demonstrate that the plaintiffs knew of the defendants' financial position, about the business opportunity, nor any relationship between XFS' purchase of the Property and the business opportunity. 103 The evidence adduced, including the communications exchanged between the parties' settlement agents and solicitors, viewed, objectively, demonstrates that there was a dispute in relation to the terms of LA1, the parties engaged in negotiations in relation to the terms upon which the sale and purchase would proceed to settlement and the vendor finance would be advanced by the plaintiffs to XFS and in respect of the cash rebate to be paid to the defendants. As a result of those negotiations, the parties entered into the Loan Agreement. 104 If the defendants were under any pressure, the evidence does not support that such was applied by the plaintiffs. Ms Radotic says that the defendants were under 'commercial, contractual and financial distress to secure an outcome as quickly as possible, to secure the Property'.91 She does not give any particulars to suggest that any of that, or any other pressure, the defendants were under was applied by the plaintiffs, nor that the plaintiffs had knowledge of the terms of the third-party loan or any pressure the defendants were under. 105 As submitted by the plaintiffs, the only substantial difference between the terms of LA1 and the Loan Agreement the parties entered 91 Third Radotic Affidavit [32]. -- 26 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 27 into is that the Loan Agreement amended clause 22 of the Confidentiality Agreement by reducing the cash rebate from $170,000 to $85,000. The proposal to reduce that rebate from $170,000 to $85,000 was made by the defendants' solicitors, Legalcare Australia. Ms Radotic agreed in LA1 to be jointly and severally liable with XFS for its obligations, which was to the same practical effect as the guarantee given by her under the terms of the Loan Agreement. Another point of difference is that the parties agreed, by clause 8 of the Loan Agreement, to release each other from any claims pursuant to General Condition 4 of the Joint Form of General Conditions for the Sale of Land in relation to any delays in settlement of the sale and purchase of the Property. 106 The parties each proposed amendments to the draft loan agreement, some of which were accepted and some of which were not.92 The defendants do not say that they proposed an alternative agreement which was not accepted by the plaintiffs. Nor were any of the matters now raised referred to in any of the communications between the parties' solicitors at the time. 107 The evidence suggests that any pressure that Ms Radotic and XFS were under related to the separate third-party finance arrangements they had made and the deadlines relating to the business opportunity. There is no evident link between such pressure and any conduct on the part of the plaintiffs. Nor is there any evidence of facts to support an arguable claim that the plaintiffs made any threats or engaged in any conduct that could be said to be unconscionable or applied any illegitimate pressure and that that was one of the reasons why the defendants entered into the Loan Agreement. 108 I am not satisfied on the evidence adduced that the defendants have demonstrated that they have an arguable defence based on economic duress or that this gives rise to any issues to be determined at trial, or any reason why the Loan Agreement is unenforceable against the defendants. The proposed counterclaim 109 The evidence adduced is insufficient, in my view, to support the defendants' alleged counterclaim against the plaintiffs. 92 See Linda Pafumi Affidavit [9] - [11], [13] - [17], 'LP-3' - 'LP-10'. -- 27 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 28 110 The Contract required XFS to complete the purchase of the Property by 30 January 2024. XFS had not secured finance by then and was not in a position to settle on that date. It was not in a position to complete until at least 25 March 2024. 111 The evidence does not support an arguable case that any delays between then and settlement proceeding on 2 May 2024 were attributable to the plaintiffs. In any event, in respect of any additional interest or costs incurred as a result of any delay in settlement, the parties agreed by clause 8 of the Loan Agreement that, provided settlement took place within three business days of execution of the Loan Agreement, the parties released each other from any claim they may have against each other relating to legal costs, interest or compensation pursuant to General Condition 4 of the Contract in relation to the sale and purchase of the Property.93 Settlement took place within that timeframe. 112 As to the defendants' alleged claim for damages for loss of the business opportunity, the evidence does not address why such was caused by any actions of the plaintiffs, that the defendants' ability to 'capitalise' on it was contingent on XFS securing the Property by a certain time, or that the plaintiffs knew enough about the business opportunity and any link between the defendants securing it and XFS' purchase of the Property. Nor is it apparent that settlement occurring on 2 May 2024 caused the business opportunity to be lost. 113 It was submitted on behalf of the defendants that too much time elapsed and that the haulage contract was assigned to another entity within 24 hours of the Property being transferred to XFS. As submitted on behalf of the plaintiffs, there is no evidence to directly support that submission, and which suggests the opportunity was lost to the defendants on a date after settlement of XFS' purchase of the Property. 114 There is no evidence of facts to suggest precisely when the business opportunity was lost, nor that it was lost between 25 March 2024 and 2 May 2024, when settlement occurred. Nor does Ms Radotic depose to any facts which, in my view, support any causative link between any delay in settlement caused by the plaintiffs, or any other reason to support an arguable claim for damages by the defendants, or either of them, against the plaintiffs for loss of the business opportunity. 93 Loan Agreement clause 8. -- 28 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 29 115 Further, as submitted by the plaintiffs, a counterclaim is to be distinguished from a set-off. A counterclaim is not a defence to a plaintiff's claim, but an independent action brought by a defendant against a plaintiff in the same proceedings. A counterclaim is used offensively, not defensively, as compared to a set-off, which has been described as 'a shield not a sword'.94 116 The defendants Minute does not assert that they have a right to set-off the damages they say may be claimed by way of counterclaim. Even so, the existence of any such claim or claims would be for unliquidated damages, which could not be set-off against the plaintiffs' claim and would not, as submitted on behalf of the plaintiffs, impeach the plaintiffs' claim and entitlement to the relief it seeks. 117 As observed by Murray J in Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd, at law, a claim for an unliquidated sum could not be set-off against a liquidated claim. So far as equitable set-off is concerned, a defendant could only establish such by bringing a claim which impeaches that of the plaintiff. It is not sufficient that there be countervailing claims, nor that the claims be mutual, nor even that they arise out of the same transaction. To make out an equitable set-off, a defendant must establish that he possessed some equitable right to be protected from the plaintiff's claim.95 118 It was submitted on behalf of the defendants that the present case may be distinguished from Westwind Air, as in this case the defendants' proposed counterclaim seeks to impeach the basis of the plaintiffs' right to recover the amount claimed. The defendants referred to TSW Analytical Pty Ltd v University of Western Australia,96 in support of their submissions, which concerned an appeal from a decision of a District Court judge, on appeal from a decision of a deputy registrar, refusing to set aside a default judgment on the basis that the appellant had no arguable defence to the respondent's claim. The appellant contended that it had a counterclaim and an equitable set- off against the respondent's claim for research work it had done for, and materials it had provided to, the respondent, in respect of which it was entitled to recover by way of a quantum meruit. 94 See Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd [1990] WASC 396; (1990) 3 WAR 71 (Westwind Air), 85 (Murray J), referring to Equity: Doctrines and Remedies (2nd ed, 1983) RP Meagher QC, WMC Gummow & JRF Lehane (Equity: Doctrines and Remedies), page 768. 95 Westwind Air (84 - 85), referring to Equity: Doctrines and Remedies, page 776, cited with approval in Goh v First Industries Corp [2002] WASCA 341 [16] (Wheeler J), [1], [18] (Templeman J & Rolfe AJ agreeing). 96 TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 (TSW Analytical) [77]. -- 29 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 30 119 On the evidence adduced in TSW Analytical, the Court of Appeal said it did not think, applying the test applicable to an application to set aside a default judgment, the appellant's claim that the alleged quantum meruit gave rise to an equitable set-off was unarguable, and said that was a matter that should be left to trial. The Court said that, if they were wrong on the question of set-off, they would, in any event, have ordered that enforcement of the judgment entered be stayed until the determination of the appellant's quantum meruit claim. 120 The counterclaim the defendants contend for relates to an alleged claim for damages for loss of a business opportunity. It is not a claim for quantum meruit or equitable compensation, and no other basis has been suggested for an equitable or legal set-off, as opposed to a counterclaim. 121 The defendants submit that to enter summary judgment would shut them out from bringing their alleged claim for damages. However, I am not satisfied that the facts relied upon by the defendants or the evidence before the court in this case support an arguable claim that the defendants have a right of set-off, so as to operate as an arguable defence to the plaintiffs' claim. 122 In my view, the proposed counterclaim does not give rise to an arguable defence, and I do not consider the facts, as deposed to by Ms Radotic, raise any real issue to be tried or other reason why the action should proceed to trial. 123 If the defendants contend they have a claim in damages against the plaintiffs and are able to produce evidence to support such a claim, it has been open to them to do so. They have not sought to raise any such claim before now. The evidence adduced in opposition to the Application, does not condescend to particulars or provide sufficient details to satisfy the court that there are facts which make it reasonable to raise the proposed claim, whether as a counterclaim or defence. 124 I do not agree that it necessarily follows that entering summary judgment for the plaintiffs would, by itself, be fatal to any genuine claim for damages by the defendants, or either of them. However, as things stand, the defendants have not demonstrated they have a claim that impeaches the plaintiffs' claim for repayment of the Loan Amount, which was advanced to XFS by way of vendor finance and has not been repaid by XFS or by Ms Radotic, as guarantor. -- 30 of 31 -- [2026] WASC 311 MASTER RUSSELL Page 31 Conclusion and orders 125 For these reasons, on the evidence adduced, the defendants have not discharged their evidentiary burden of establishing that there is an arguable defence to the plaintiffs' claim, an issue or question to be tried, or other reason why there ought to be a trial of the action. I recognise that summary judgment should only be awarded in a clear case. For the reasons given, I am satisfied that this is such a case and that orders should be made to the following effect. 1. The plaintiffs have leave to bring the Application against the second defendant pursuant to RSC O 14 r 1, the time for which is extended to the date of filing, 18 December 2025. 2. Pursuant to RSC O 14 r 3, judgment be entered for the plaintiffs against the defendants in the sum of $751,100 together with interest from the date payment was due to the date of judgment at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA). 126 The parties are to confer in relation to the date from which interest is to run, the amount of interest to be included in the judgment sum, and in relation to costs. Subject to hearing from the parties, there does not appear to be any reason why costs should not follow the event, in the usual course, and the defendants be ordered to pay the plaintiffs' costs of the Application and of the action. 127 By 7 August 2026, if agreement is reached, the parties are to file a memorandum of consent orders to give effect to these reasons or, if agreement is not reached by that time, they are each to file a minute of their proposed orders. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 31 JULY 2026 -- 31 of 31 --