BALL -v- INSTANT CASH ADVANCE PTY LTD [2026] WASCA 54 (17 April 2026)

The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.

1. The principles that apply in relation to s 43(3) are summarised in Miller v McKnight.[1] It is not necessary to repeat those principles in full. It is, however, worthwhile to restate the following:

[T]here are two separate and distinct limbs to s 43(3). An appeal court may strike out an appeal of the present kind if one or both of the following are satisfied:

1. The likely costs of the appeal to the parties would be disproportionate to the amount of the claim in the case which is the subject of the appeal.
2. The likely costs of the appeal to the parties would be disproportionate to the nature of the case which is the subject of the appeal.

The discretion is enlivened once either limb is made out.

The 'case' refers to the relevant proceedings in the Magistrates Court. Accordingly, the 'amount of the claim' refers to the amount of the substantive relief for which the claim was brought in the Magistrates Court [21] - [23]. (citations omitted)

1. The present appeal is a further appeal from an initial appeal in the District Court of Western Australia after the trial and dismissal of an action in the Magistrates Court at Rockingham. Written reasons were provided in the initial appeal to the District Court: Ball v Instant Cash Advance Pty Ltd.[2] For the purpose of developing the background to the further appeal to this court it suffices to refer to the District Court's reasons supplemented in part by reference to the appellant's affidavit sworn 10 April 2026.
2. The appellant is a 73-year-old single pensioner. The respondent owns and operates a moneylending business trading as a pawnbroker. In December 2022 the appellant obtained a $2,500 loan from the respondent and provided her 2014 Toyota Camry as security for repayment of the loan. The respondent was to have possession of the vehicle until it was redeemed by the appellant repaying the loan and interest thereon; or, if the vehicle was not redeemed by 7 March 2023, the respondent was entitled to sell the vehicle. The respondent stored the vehicle in its yard.
3. On 23 February the vehicle was badly damaged by vandals, driven out of the respondent's yard and left abandoned in a nearby carpark.
4. There was a telephone call between the appellant and a representative of the respondent on 3 March 2023. The substance of the telephone conversation was disputed. In any event the appellant became aware of the damage to the vehicle. Thereafter the appellant did not redeem the vehicle by 7 March 2023; nor did the appellant repay the $2,500 loan or pay the interest thereon. On 9 March 2023 the respondent sold the vehicle for $2,500.
5. The appellant commenced proceedings against the respondent in the Magistrates Court at Rockingham on 6 June 2024 claiming damages for the loss sustained to her vehicle. There was a two‑day trial. On 18 November 2024 the magistrate dismissed the appellant's claim. The magistrate's reasons are summarised in Ball v Instant Cash Advance Pty Ltd [12] ‑ [17]. Among other things: (1) the magistrate was not satisfied that any duty was breached [13]; and (2) the magistrate was not satisfied that, even if the appellant had otherwise established her various causes of action, the quantum of the loss claimed had been established to the requisite standard [17].
6. The appellant claimed that she sustained a loss quantified in an amount of $19,670: Ball v Instant Cash Advance Pty Ltd [7](c). In that respect:

[T]he magistrate found that [the appellant] adduced little evidence as to the value of the Vehicle, or its condition. [The appellant] asserted it was 'in good condition', with only a little 'dint' [sic]. She produced the odometer reading for the Vehicle being 148,688 km at the time of the agreement between the parties. [The appellant] otherwise sought to rely on a car valuation 'Redbook' entry.

In the end, the magistrate found that the only evidence as to the value of the Vehicle at the relevant time came on behalf of the respondent 'from a person who regularly visited the yard and was familiar with vehicles'. This meant that, even if the magistrate was persuaded that [the appellants] had otherwise established her claims in either bailment, contract or negligence, the quantum of the loss had not been established to the requisite standard [16] - [17]. (citations omitted)

1. In actuality the Redbook entry was not even tendered at the trial.[3] The magistrate stated that the appellant had not established the initial value of the vehicle. So, even if the magistrate was satisfied as to the basis of the appellant's claims, the magistrate said that 'the value of or the quantum of the loss has not been established'.[4]
2. In the initial appeal to the District Court the appellant relied on nine grounds of appeal. The primary appeal judge summarised the grounds as alleging five key alleged errors said to constitute a miscarriage of justice. These included that the magistrate erred in dismissing the appellant's evidence as to quantum. The primary appeal judge considered and determined the appeal by reference to those five matters. The primary appeal judge was not satisfied that any appellable error was revealed.
3. Among other things the primary appeal judge concluded:
   1. The magistrate correctly found that the respondent was required to exercise reasonable care to secure the vehicle in its possession; and that this had occurred (ie reasonable care had been exercised) [49], [52], [55] - [56].
   2. The appellant had failed to demonstrate any error - including so far as the appellant contended that the magistrate erred in finding that the estimated value of the vehicle was not supported or established by any independent evidence [53], [55].

1. The appellant commenced her further appeal to this court on 1 April 2026. In providing for the show cause hearing the court made programming orders requiring the appellant to file draft grounds of appeal. The parties were also afforded an opportunity to file written submissions. The appellant was also permitted to file affidavit evidence to be relied on at the show cause hearing.
2. Shorn of particulars, the appellant's draft grounds of appeal provide:
   1. The learned judge erred in law in holding that the respondent did not fail to return the Vehicle, and in treating the appellant's subsequent non-redemption as dispositive of the respondent's obligations as bailee.
   2. The learned judge erred in law by misapplying, reversing or diluting the onus borne by the respondent as bailee to disprove negligence.
   3. The learned judge erred in law in characterising the appellant's non-redemption as an 'election' under the agreement and/or a 'compromised settlement', in the absence of evidence capable in law of establishing any concluded compromise, waiver or variation.
   4. The learned judge erred in law in upholding the rejection of the appellant's evidence on quantum, and/or in failing to assess damages on the best evidence available.
3. There is, critically, no intended challenge to the concurrent factual finding by both the magistrate and the primary appeal judge that the respondent had in fact exercised reasonable care to safely and securely store the vehicle to avoid the risk of vandalism and theft.
4. The appellant submitted that the appeal should not be struck out pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act. The appellant said that the appeal is not ordinary or trivial. According to the appellant, the nature of the case weighed strongly against the appeal being struck out. The appellant pointed to an adverse costs order of $44,531.51 in the Magistrates Court and suggested that further costs sought in relation to the District Court appeal would increase the appellant's costs liability such that it exceeded $77,000. Thus, in the appellant's submission, this was not a minor controversy about a nominal sum. The appellant feared the loss of her home if enforcement action persisted in relation to the adverse costs orders in the Magistrates Court and the District Court.
5. The focus on the quantum of the adverse costs orders in the Magistrates Court and the District Court is misplaced. The 'amount of the claim' refers to the amount for which the claim was brought in the Magistrates Court: Miller v McKnight [23]. This is the asserted $19,760 value of the vehicle. The only relevant costs are the costs of the appeal to this court; the costs incurred at first instance and in the appeal to the District Court are irrelevant: Defendi v Eden Hill Plasterers;[5] Miller v McKnight [23].
6. The appellant further submitted that the appeal raised a confined question of law being a point of principle the determination of which would have a wider benefit. The appellant said that, having regard to the confined nature of the appeal, the likely further appeal costs would not be disproportionate. If, however, there was a residual concern as to the costs of the appeal, this could be addressed by close case management.
7. We were satisfied that the first limb of the discretion under s 43(3) of the Magistrates Court (Civil Proceedings) Act was enlivened. As mentioned, the 'amount of the claim' is $19,760. We were and are satisfied that the likely costs of the appeal to the parties will be disproportionate to this amount. Neither party provided us with a cost estimate. But both parties are legally represented. The costs in the Magistrates Court and the District Court were substantial. We are well familiar with the likely costs of an appeal in this court. An indication of the likely costs in the most simple of appeals is provided in Miller v McKnight [40]. Ignoring filing fees, which may be less in this appeal because the appellant is a pensioner, we were and are satisfied that the parties' likely costs of the appeal will exceed the amount of the claim by a considerable margin.
8. It followed, in our opinion, that the likely costs of the appeal to the parties would be disproportionate - in the sense of being 'out of proportion' - to the amount of the claim in the case which is the subject of the appeal. Insofar as the discretion under s 43(3) was enlivened by reference to the first limb thereof it was not necessary to consider whether the second limb of s 43(3) was also engaged: Miller v McKnight [22], [27], [41].
9. The exercise of the discretion under s 43(3) is informed by the statutory purpose that underpins the provision. That purpose was described by Newnes and Murphy JJA in Cristovao v John Horton & Associates:

Section 43(3) is concerned to prevent disproportionate costs being incurred by the parties on appeals from proceedings in the Magistrates Court. It is not concerned with proportionality in any other respect, such as the court resources required for the determination of the appeal. It is evident that the requirement of proportionality under s 43(3) is intended to enable a party to litigate a modest claim in the Magistrates Court without the risk that an opponent who (for whatever reason) is unconcerned with costs might pursue appeals of disproportionate and even crippling expense.[6]

1. Otherwise the discretion is an unfettered discretion to be exercised judicially according to the justice of the case: Miller v McKnight [27].
2. The circumstance that the likely costs of the appeal will be disproportionate to the amount of the claim is a factor of considerable weight in the exercise of the discretion under s 43(3): Miller v McKnight [42]. In our opinion this factor was not ameliorated, and all the more so not outweighed, by the matters relied on by the appellant. The appellant did not seek to advance an unresolved question of legal principle of general application as occurred in Miller v McKnight. There is no doubt that the claim is of considerable importance to the appellant. But ultimately the appeal - if allowed to proceed - would turn on the application of settled principles of law to the unique circumstances of the present case. The appeal did not raise matters that might be of wider benefit to the parties, the public or the administration of justice more generally. Nor, in our opinion, were there reasonable grounds to consider that close case management might confine the parties' likely costs of the appeal such that they might be proportionate to the amount of the claim. There is a base cost associated with an appeal in this court. The parties must prepare an appellant's case, a respondent's answer, appeal books and prepare for and appear at an appeal hearing. It is inconceivable that the parties' likely costs in doing so, even with close case management, will not well exceed the amount of the claim.
3. In addition, we were not satisfied that the appeal had a reasonable prospect of succeeding in a way that might compensate the appellant for the alleged value of the vehicle.
4. First, as we have mentioned, the appellant did not seek to challenge the concurrent factual finding of the magistrate and the primary judge that the respondent had in fact exercised reasonable care. There was, by proposed ground 2, a complaint as to onus. But that alone could not demonstrate appellable error in the positive concurrent factual finding that the respondent had in fact taken reasonable care. Second, even if liability was established, the appellant had to overcome the evidentiary deficiency as to the value of the vehicle. There was simply no evidence as to value. It is not enough that the appellant gave direct evidence as to the vehicle's make, model, year, condition and odometer reading. That alone does not establish value. The Redbook entry was not tendered. The particulars in support of proposed ground 4 do not mention any other supposed evidence as to the value of the vehicle. This is not just a case of the evidence being imprecise. There was a complete absence of evidence as to value - a matter on which the appellant bore the onus of proof before she could recover non-nominal damages.
5. In all the circumstances, weighing the factors we have referred to, and having regard to the statutory purpose that informs the discretion under s 43(3) of the Magistrates Court (Civil Proceedings) Act, we were comfortably satisfied that the court should strike out the appeal.

1. For the foregoing reasons the court made the following orders on 17 April 2026:
   1. The appeal is struck out, and thereby dismissed, pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
   2. Each party bear its own costs of the appeal.
2. The costs order was appropriate in circumstances where the court brought the show cause application of its own motion and counsel for the respondent (who sought to appear by audio link) was uncontactable when the court sought to call the number that had been provided for the purpose of the hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Miller v McKnight [2023] WASCA 182 [19] - [27].

[2] Ball v Instant Cash Advance Pty Ltd [2026] WADC 23.

[3] Magistrates Court ts, 18 November 2024, 11.

[4] Magistrates Court ts, 18 November 2024, 12.

[5] Defendi v Eden Hill Plasterers [2008] WASCA 269 [4], [14], [40].

[6] Cristovao v John Horton & Associates [2012] WASCA 12 [22].