GIRGIS NOMINEES (WA) PTY LTD -v- DIAMOND DEVELOPMENT ALLIANCE PTY LTD [2026] WASC 67 (10 March 2026)

(a) the affidavit of Ronnie Michel-Elhaj sworn on 25 September 2025 and filed on 21 October 2025;

(b) the affidavit of Mr Michel-Elhaj sworn and filed on 4 December 2025;

(c) the affidavit of Benjamin John Wensley affirmed and filed on 9 December 2025; and

(d) the affidavit of Mr Michel-Elhaj sworn on 12 December 2025 and filed on 18 December 2025.

1. As to the four additional affidavits, by order 4 of the orders made on 11 December 2025 in the proceeding known as COR 164 of 2025, Girgis Nominees (WA) and Sun Dental were released from the obligation not to use the affidavits filed on behalf of Diamond Development Alliance in COR 164 of 2025 for a purpose other than in connection with that action, and leave was granted, for the limited purpose of use in an application by Girgis Nominees (WA) and Sun Dental for inspection of the books and records of Diamond Development Alliance pursuant to s 247A of the Corporations Act (that is, in this application).
2. I understood counsel for Diamond Development Alliance to read the affidavit of Mr Michel-Elhaj sworn and filed on 20 February 2026 in this proceeding in opposition to the application.[1]
3. In determining the application I also have had the benefit of written outlines of submissions together with oral submissions from counsel who appeared at the hearing of the application.

Factual background Incorporation and purpose of Diamond Development Alliance

1. Mr Michel-Elhaj is the sole director of Diamond Development Alliance, a company registered in December 2016. Mr Michel-Elhaj has been a director of Diamond Development Alliance since its registration. John Gilmore was a director from June 2019 until the end of September 2021; and Paul Bitdorf was a director from registration until mid-October 2017.[2]
2. Mr Michel-Elhaj deposed that Diamond Development Alliance had been incorporated for the sole purpose of purchasing and developing:

(a) 939 Beaufort Street, Inglewood in the State of Western Australia more particularly described as Lot 6 on Plan 4529;

(b) 941 Beaufort Street, Inglewood in the State of Western Australia more particularly described as Lot 5 on Plan 4529; and

(c) 943 Beaufort Street, Inglewood in the State of Western Australia more particularly described as Lot 4 on Plan 4529,

together comprising the whole of Certificate of Title Volume 1046 Folio 962, along with:

(a) 945 Beaufort Street, Inglewood in the State of Western Australia more particularly described as Lot 6 on Plan 4529, comprising the whole of Certificate of Title Volume 1054 Folio 573; and

(b) 947 Beaufort Street, Inglewood in the State of Western Australia more particularly described as Lot 2 on Plan 4529, comprising the whole of Certificate of Title Volume 1005 Folio 358,

(collectively, the 'Sky Homes Properties').[3]

1. Mr Michel-Elhaj deposed that on 26 October 2017, Diamond Development Alliance executed a contract to purchase the Sky Homes Properties, which settled on 3 April 2018.[4]

1. As to the current shareholding of Diamond Development Alliance, Mr Michel-Elhaj deposed that there are 700,000 A Class shares and 1,100,002 ordinary shares held by:

(a) Perth Property Alliance Pty Ltd as to 700,000 A Class shares;

(b) Protege Corporation Pty Ltd as to one ordinary share;

(c) Raith Nominees Pty Ltd as to one ordinary share;

(d) Sun Dental as to 600,000 ordinary shares; and

(e) Girgis Nominees (WA) as to 500,000 ordinary shares.[5]

1. Perth Property Alliance was formerly known as Nicheliving Projects Pty Ltd. It was registered on 25 October 2013, and its current directors are Mr Michel-Elhaj (since July 2017) and Mr Bitdorf (since 2013). Its shares are held by Alliance Developments Management Pty Ltd.[6]
2. Mr Michel-Elhaj deposed that on 6 October 2017 Nicheliving Projects entered into a subscription agreement with Diamond Development Alliance in which Nicheliving Projects agreed to accept and Diamond Development Alliance agreed to issue 700,000 A Class shares in Diamond Development Alliance at 50 cents per A Class share.[7] Among other things, Mr Michel-Elhaj observed that the subscription agreement provides that A Class shares rank in priority to ordinary shares.[8]
3. Mr Girgis further observed as follows:[9]

Recital C of the Subscription Agreement provides that "the Company has resolved to allot and issue, and [Nicheliving Projects] has agreed to subscribe for, the Consideration Shares on the terms set out in [the Subscription Agreement]". "Consideration Shares" is defined in the Subscription Agreement as 700,000 Shares. "Shares" is defined in the Subscription Agreement to mean "partly paid A Class shares of the Company, paid up to $0.001 upon being issued by the Company and upon which calls may be made by the Company at the Company's discretion when the Deposit is required to be paid". The term "Deposit" is defined in clause 1.1(f) of the Subscription Agreement as the deposit for purchase of the Property, and "Property" is defined in clause 1.l(g) as the property at 943-947 Beaufort Street.

...

Upon execution of the Subscription Agreement, Nicheliving Projects was, by clause 1.1(j) of the Subscription Agreement, required to pay the subscription amount for the A Class shares so that Diamond could pay the Deposit to purchase the Property ("the Deposit") in the sum of $350,000 payable by:

8.1. a first tranche of $700, upon the execution of the Deed; and

8.2. a second tranche of $349,300, upon demand by Diamond.

1. As to Protege Corporation, formerly known as APA Group Pty Ltd, it was registered in August 2003. Mr Michel-Elhaj has been a director of Protege Corporation since September 2004. Natalie Elhaj was a director from registration until February 2006; and Paul Bitdorf was a director from registration until September 2004. Mr Michel-Elhaj and Ms Elhaj presently hold all of the shares in Protege Corporation.[10]

1. As to Raith Nominees, it was registered in June 1980. Mr Bitdorf is its sole director. One of its two shares is held jointly by Mr Bitdorf and Halina Bitdorf, and the other is held by Mr Bitdorf alone.[11]

1. As to Girgis Nominees (WA), it was registered in February 2008. Mr Girgis is (as has been) its sole director and shareholder.[12]
2. Mr Girgis deposed that on 10 September 2018 he applied for 500,000 shares in Diamond Development Alliance to be issued to Girgis Nominees (WA) in its capacity as trustee of the Girgis Property Trust (ABN 22 863 387 942), for an issue price of $1 per share.[13] The shares were issued but in error were registered as being held by 'Girgis Property' (which entity does not exist), which error was corrected at Mr Girgis' request on about 4 September 2024.[14]

1. As to Sun Dental, it was registered in May 2011. Mr Shams is (and has been) its sole director and shareholder.[15] Sun Dental acquired 600,000 shares in Diamond Development Alliance on 19 June 2018.[16]

The financial position of Diamond Development Alliance

1. While the Sky Homes Properties were acquired in accordance with the purposes of Diamond Development Alliance, the development was not completed. As to the circumstances in which this came about, Mr Michel-Elhaj deposed as follows:[17]

On 5 May 2019 and again on 8 November 2021, [Diamond Development Alliance] refinanced various facilities made available to [Diamond Development Alliance] and other entities for the purpose of furthering the development of the [Sky Homes Properties] and other properties owned by companies of which I am a director.

These facilities were secured by mortgage over the [Sky Homes Properties], being Landgate registration number O273320, and other Properties owned by the other Borrowers. ...

On 22 May 2025, [Diamond Development Alliance] reached an Agreement with the mortgagee of [Sky Homes Properties] (a secured creditor of [Diamond Development Alliance]) to discharge its obligations under the mortgage in consideration of receiving the sum of $9 million. ...

On 22 May 2025, [Diamond Development Alliance] agreed to sell the [Sky Homes Properties] for $8 million and the transaction settled on 1 July 2025. ...

1. As to the mortgage granted by Diamond Development Alliance referred to above, Mr Michel-Elhaj attached to his affidavit of 12 December 2025 a copy of Landgate dealing O273320, which records a mortgage granted by Diamond Development Alliance over the Sky Homes Properties in favour of the National Australia Bank Limited (NAB) executed on behalf of NAB on 5 November 2019.[18]
2. As to the agreement with the mortgagee referred to above, Mr Michel‑Elhaj attached to his affidavit of 12 December 2025 a copy of a deed of repayment and release dated 22 May 2025, the parties to which were NAB and 13 'Customers' listed in sch 1 to the deed (which schedule is reproduced at sch A to these reasons).[19]
3. In the deed:[20]

(a) the 'Customers' are defined to mean 'the Obligors and the Individual Guarantors as listed in Schedule 1';

(b) the 'Obligors' are defined to mean the 'Borrowers' and 'Cross-Guarantors';

(c) the 'Borrowers' are defined to mean seven different entities, including Diamond Development Alliance; and

(d) the 'Cross-Guarantors' are defined to mean 11 different entities, including Diamond Development Alliance.

1. The deed included an 'Introduction' which records as follows:[21]

1. It is Mr Michel-Elhaj's evidence that as of 31 July 2025, Diamond Development Alliance had a net asset position of -$27,369,536.83, comprised of:[22]

(a) Assets totalling $4,508,033.71, being:

(i) Loan to Nicheliving Capital Pty Ltd ACN 633 523 734 (which was developing a project known as Swansea) of $3,543,876.00;

(ii) Loan to Projex Management & Construction Pty Ltd ACN 114 605 408 of $1,172,204; and

(iii) Less the NAB 52-232-9807 of -$208,046.29; and

(b) Liabilities totalling $31,877,570.54, being:

(i) trade creditors of $131,990.25;

(ii) loans of $29,334,605.27, being:

1. $12,776,114.07 to NAB;

2. $10,673,297.60 to Custodian Funds Management Pty Ltd (referred to as Crest in the balance sheet);

   1. $5,044,030.60 to Perth Property Alliance;

   2. $3,793.50 to Raith Nominees;

   3. $1,989.50 to Protege Corporation;

   4. $416,700.00 to Paul Bitdorf;

   5. $416,700.00 to Ronnie Michel-Elhaj; and

   6. $1,980.00 to Urban Infill Developments Pty Ltd; and

(iii) accruals of $2,410,974.32.

1. As to Diamond Development Alliance's assets, he further deposed that:[23]

(a) Projex entered administration on 6 November 2024 and a Deed of Company Arrangement and it is unlikely there will be any return to the Company from that; and

(b) Nicheliving Capital Pty Ltd was a vehicle solely for the purpose of the Swansea development and that development has been sold as part of the action taken by the secured creditor, meaning that company is no longer trading and has no assets to repay the loan. The company will not receive any return from this loan.

1. Mr Michel-Elhaj deposed that it was the voluntary administration of Projex Management & Construction Pty Ltd which triggered the secured creditor to take action against all the companies that were parties to the facility secured against the Sky Homes Properties.[24]
2. As to Nicheliving Capital Pty Ltd, it was registered on 17 May 2019 and since registration, Mr Michel-Elhaj has been a director. Mr Bitdorf is also a director, having been appointed in June 2019. All of the shares in Nicheliving Capital are presently held by Nicheliving Holdings Ltd.[25]
3. As to Projex Management & Construction Pty Ltd (subject to deed of company arrangement), it was registered in June 2005. Mr Bitdorf and Mr Michel-Elhaj are directors, having been appointed in August 2005 and July 2017 respectively. All shares are presently held by Nicheliving Holdings Ltd, and John Allan Bumbak and Richard Scott Tucker were appointed deed administrators on 6 January 2025.[26]

The application to wind up Diamond Development Alliance

1. Mr Michel-Elhaj deposed that on or about 4 September 2025 he sent a message to Mr Shams of Sun Dental and to the representative of Girgis Nominees (WA) in which he communicated as follows:[27]

(a) "Gents we are proceeding with the liquidation of this entity today";

(b) "Do you mind signing the returning this to me today ideally pls" and attaching forms for proxy appointment and consent to short notice of the meeting;

(c) "Apologies for short notice as I am trying to move quickly to reduce cost for the process";

(d) "Gents pls send this to me am pls"; and

(e) "We need to file this morning".

1. On 5 September 2025 Mr Shams responded to Mr Michel-Elhaj indicating that he would first get advice,[28] and on 9 September 2025 Mr Shams substantively responded as follows:[29]

1. By an originating process filed on 21 October 2025, and without notice to Girgis Nominees (WA) or Sun Dental, Diamond Development Alliance applied to the court to be wound up on just and equitable grounds pursuant to s 461(1)(k) of the Corporations Act (which proceeding is referred to at [4] above and is known as COR 164 of 2025).
2. As grounds for that order, Diamond Development Alliance recorded in the originating process (among other things) those matters recorded at [9], [20], [25] and [32] of these reasons.
3. In the first affidavit filed in support of that application, Mr Michel‑Elhaj deposed as follows:[30]

As a result of [Mr Sham's email of 9 September 2025], it was apparent that Sun Dental wanted to treat the capital invested as a loan to be repaid regardless of the financial position of [Diamond Development Alliance]. Given Sun Dental owned more than 25% of the voting shares, the sole director considered that a special resolution could not be passed to wind up [Diamond Development Alliance].

Given the additional legal fees to continue to defend the Proceedings and lack of realisable assets to pay those fees, [Diamond Development Alliance] would be incurring further liabilities which it could not pay if it was not wound up.

Therefore, I seek the Court exercise its discretion to wind up [Diamond Development Alliance] on the basis that it would be just and equitable.

1. The 'Proceedings' referred to above was a reference to a proceeding commenced on 5 May 2025 against Diamond Development Alliance by Narbot Holdings Pty Ltd in this court known as CIV 1464 of 2025.
2. On 2 December 2025 in the proceeding known as COR 164 of 2025, Diamond Development Alliance was ordered to serve each of its shareholders with a copy of the application to wind up Diamond Development Alliance, supporting affidavits, outline of submissions and a copy of the court's orders together with notice of the adjourned hearing of the application by 5 December 2025.[31]
3. On 5 December 2025 Girgis Nominees (WA) and Sun Dental were served with copies of the originating process and various other documents concerning that application.[32]
4. As to the context of the communication sent on 9 September 2025 (reproduced at [31] of these reasons), Mr Shams deposed as follows:[33]

On 20 May 2025, I met with Ronnie Michel-Elhaj and Sherif Girgis at Ventrina Espresso Bar at 180 Newcastle Street, Perth, Western Australia.

At the meeting, Mr Michel-Elhaj said words to the effect that a new builder would purchase the Sky Homes Properties and that the plaintiffs' investment could be redeemed following the completion of the project by that builder.

After the meeting, Mr Girgis sent an email to Mr Michel-Elhaj and myself. ...

On 9 September 2025, I sent the email to Ronnie Michel-Elhaj set out at pages 94 to 95 of annexure RME6 to the Affidavit of Ronnie Michel-Elhaj sworn on 20 February 2026 and filed in these proceedings.

I requested that a formal deed be put in place guaranteeing the return of the plaintiffs' invested funds on the basis of my understanding, from what Mr Michel-Elhaj had said at the 20 May 2025 meeting, that the plaintiffs' investment could be redeemed upon the Sky Homes Properties being sold to and completed by another builder. I did not want Diamond to be wound up without the redemption of Sun Dental's investment unless there was some arrangement in place which guaranteed that this would occur.

1. A copy of the email communication sent by Mr Girgis following the meeting on 20 May 2025 was attached to Mr Sham's affidavit and is reproduced below:[34]

Why Girgis Nominees (WA) and Sun Dental seek inspection of the books of Diamond Development Alliance

1. The following are raised by Girgis Nominees (WA) and Sun Dental as being matters of concern with respect to Diamond Development Alliance's shareholding.
2. First, Mr Girgis deposed that before Girgis Nominees (WA) and Sun Dental subscribed for shares in Diamond Development Alliance, neither he nor Mr Shams knew that Diamond Development Alliance had issued A Class shares to Nicheliving Projects, or that any A Class shares with preferential rights over ordinary shares had been issued by Diamond Development Alliance.[35]
3. Secondly, the Diamond Development Alliance constitution does not provide for the issue of A Class shares, and there is no evidence that the constitution was amended to provide for the same.[36]
4. Thirdly, Girgis Nominees (WA) and Sun Dental do not know whether the second tranche of the subscription amount was ever paid by Nicheliving Projects, or whether the balance of the deposit referred to in the subscription agreement was paid out of the $1,100,000 paid by Girgis Nominees (WA) and Sun Dental as the subscription price for their shares in Diamond Development Alliance.[37]
5. Girgis Nominees (WA) and Sun Dental are also concerned that Diamond Alliance Development funds were used contrary to its purposes (that is, for the sole purpose of purchasing and developing the Sky Homes Properties).[38] They consider to be of particular concern the evidence of Mr Michel-Elhaj that Diamond Development Alliance's assets included loans to Nicheliving Capital Pty Ltd and Projex Management & Construction Pty Ltd, and that mortgages had been granted over the Sky Homes Properties for facilities made available to those companies.[39] In regard to the same, Mr Girgis deposed that he has no knowledge about the loans made to those entities or the securities granted over the Sky Homes Properties for facilities to those entities, and that he was informed by Mr Shams and verily believes that Sun Dental also has no knowledge of those matters.[40]
6. As to the relief sought, Mr Girgis deposed that Girgis Nominees (WA) and Sun Dental have applied for an order under s 247A of the Corporations Act:

(a) to determine the extent to which funds of Diamond Development Alliance or other assets were paid or applied by Mr Michel-Elhaj as sole director of Diamond Development Alliance for purposes other than the purchase and development of the Sky Homes Properties by Diamond Development Alliance; and

(b) to establish that the A Class shares in Diamond Development Alliance were invalidly purportedly issued and are void or should be set aside.[41]

1. Mr Girgis further deposed as follows:[42]

The plaintiffs seek an order for inspection of the Books for the purpose of bringing proceedings against Diamond and the sole director of Diamond, Ronnie Michel-Elhaj ("Mr Michel-Elhaj"), for orders concerning conduct that is contrary to the interests of the members as a whole, or that is oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members of Diamond within the meaning of ss.232(d) and 232(e) of the Corporations Act 2001 pursuant to s.233(l)(d) and s.233(1)(j) for the purchase of the Plaintiff's Shares by Protege with the obligations of Protege guaranteed by Mr Michel‑Elhaj. ... Mr Michel-Elhaj is the sole director of Protege.

1. Section 247A of the Corporations Act empowers the court on an application by a member of the company to make an order authorising the member or another person on the member's behalf to inspect the books of the company. Section 247A relevantly provides as follows:

Order for inspection of books of company or registered managed investment scheme

(1) On application by a member of a company or registered scheme, the Court may make an order:

(a) authorising the applicant to inspect books of the company or scheme; or

(b) authorising another person (whether a member or not) to inspect books of the company or scheme on the applicant's behalf.

The Court may only make the order if it is satisfied that the applicant is acting in good faith and that the inspection is to be made for a proper purpose.

1. 'Books' are defined broadly in s 9 of the Corporations Act and include a register, any other record of information, financial reports or financial records sustainability reports or sustainability records, as well as a document.
2. The principles applicable to this application are well established and were not in issue.[43] The discretion vests and the court may only make the order when it is satisfied the applicant is acting in good faith and the inspection is to be made for a proper purpose. It is widely accepted that this is a composite expression.[44]
3. As was stated by the Full Court of the Federal Court in Enares Pty Ltd v Nimble Money Ltd:[45]

Although there have been many statements attempting to explicate the content of the expression 'acting in good faith and that the inspection is to be made for a proper purpose', they are generally concerned with either of two matters. Firstly, whether the applicant's asserted purpose or object of inspection is a legitimate one given the nature of the statutory relationship between shareholder, on the one hand, and the company and its directors, on the other? The second aspect is whether the applicant has established by admissible evidence that it, in fact, has the asserted purpose and that the application has been made to advance it. That is, is it pursing the asserted purpose in good faith? There is no doubt that these matters will regularly involve overlapping considerations.

...

For the purposes of this case it is only necessary to observe that seeking inspection of documents in order to ascertain whether there has been a breach of a directors' duty or whether oppressive conduct has been engaged in, is self-evidently within the scope of a proper purpose.

1. The applicant bears the onus of proof in an application under s 247A,[46] and good faith and proper purpose must be determined objectively.[47]
2. The purpose must be the dominant or primary purpose for the applicant seeking the inspection in relation to each category of documents, and must relate to the rights of the applicant as a shareholder of the company concerning the company or its directors in the context that ordinarily shareholders are not entitled as of right to challenge managerial decisions of directors.[48]
3. However, it is not necessary that the applicant show that its interests are different to those of other shareholders.[49] Nor is it necessary that the applicant have sufficient evidence to bring or make out an action; it is enough that the issue raised by the applicant is 'substantive and not fanciful', not 'artificial, specious or contrived'.[50] There must be a case for investigation, and pursuing a reasonable suspicion of breach of duty is a proper purpose.[51]
4. An applicant who has a significant holding and who has been a shareholder for 'some considerable time' will more easily discharge the onus than one who has recently acquired a token holding.[52]
5. The procedure under s 247A is not intended to be as wide-ranging as discovery so that the general rule is that inspection will be limited to such documents as evidence the results of board decisions, rather than all board papers leading to decisions, but there may be occasions when it is proper to permit inspection of board papers.[53]
6. Where the power to make an order under s 247A of the Corporations Act is enlivened, the court then has a discretion whether to grant the orders sought.[54]

1. Girgis Nominees (WA) and Sun Dental have standing to apply for relief pursuant to s 247A of the Corporations Act. On the evidence read, the applicants have discharged their onus as I am satisfied that in bringing the application they are acting in good faith and that the inspection is to be made for a proper purpose.
2. The concerns which have caused Girgis Nominees (WA) and Sun Dental to bring the application are summarised at [41] to [46] of these reasons. It is their position that, on the basis of their knowledge of the operations of Diamond Development Alliance, and the information provided to them by Diamond Development Alliance and Mr Michel‑Elhaj, they have concerns regarding all aspects of Diamond Development Alliance's operations.[55]
3. Their concerns arise from the affidavit material filed on behalf of Diamond Development Alliance in the proceeding known as COR 164 of 2025, relating to:

(a) the use of the funds of Diamond Development Alliance for purposes other than its own purposes (its purposes being the purchase and development of the Sky Homes Properties); and

(b) the issuance of A Class shares by Diamond Development Alliance to Nicheliving Projects (now known as Perth Property Alliance).

1. Objectively, a case for investigation has been demonstrated on the evidence read. I consider the issues raised to be substantive and the evidence read to be cogent and sufficient so as to rise to the concerns expressed.
2. Girgis Nominees (WA) and Sun Dental seek to inspect all of the books of Diamond Development Alliance to aid them in deciding whether to commence proceedings as against Mr Michel-Elhaj in his capacity as the sole director of Diamond Development Alliance pursuant to s 232 of the Corporations Act.
3. The application is made in circumstances where Girgis Nominees (WA) and Sun Dental together hold all but two of the ordinary shares issued in Diamond Development Alliance, and have done so since 2018. The applicants have a significant holding which has been held for a considerable time (albeit there was a need to correct the register with respect to the holding by Girgis Nominees (WA) in September 2024).
4. In this case, in light of the evidence read and as the inspection:

(a) relates to the rights and interests of Girgis Nominees (WA) and Sun Dental, as shareholders, in relation to Diamond Development Alliance and its director; and

(b) is sought so as to ascertain whether the company has engaged in oppressive conduct,

I am satisfied that inspection is for a proper purpose and the applicants are acting in good faith.

1. I do not accept, as was submitted on behalf of Diamond Development Alliance, that a lack of good faith has been demonstrated by:

(a) delay on the part of Girgis Nominees (WA) and Sun Dental in making the application for inspection;

(b) Sun Dental or Mr Shams 'seeking to treat capital invested as a loan'; or

(c) the breadth of the books sought to be inspected.[56]

1. As to delay, Diamond Development Alliance complained that Girgis Nominees (WA) and Sun Dental had five years to search Landgate and inform themselves of the existence of the most recent mortgage and to make enquiries of Diamond Development Alliance; and three months from the date Mr Michel-Elhaj requested their consent to the winding up of Diamond Development Alliance to make enquiries, but only made this application after the application to wind up Diamond Development Alliance had been made.[57]
2. As to whether delay demonstrates a lack of good faith, I am persuaded by the responsive submissions made on behalf of Girgis Nominees (WA) and Sun Dental. I proceed on the basis that there is no principle which stands in the way of an applicant on the basis that it may have had enough information at an earlier point in time to make a decision on a course it may wish to take. Nor is it the law that because an applicant may have the means of obtaining information elsewhere, it is not acting in good faith, or seeking inspection otherwise than for a proper purpose. The fact that an applicant may or may not have had the means via Landgate or searches of the ASIC register to obtain information is not a good reason why inspection should not be afforded it.[58]
3. I also accept that in any event, it would appear that it was only when Girgis Nominees (WA) and Sun Dental were served with the papers filed in the proceeding known as COR 164 of 2025 on 5 December 2025 that they learnt of some of the matters which now give rise to their concern, and which ground a case for investigation.

1. As to the second concern raised on behalf of Diamond Development Alliance, it was submitted that it was apparent from the Whatsapp messages between the director of Diamond Development Alliance and Mr Shams that the Girgis Nominees (WA) and Sun Dental seek to treat capital invested as a loan, demanding 'the return of our invested funds plus compounded interest'.[59]
2. It was further submitted that the delay on the part of Girgis Nominees (WA) and Sun Dental, and the request in Mr Shams' email, evidence that the application to inspect is not made in good faith but that the application is made so as to prevent the winding up of Diamond Development Alliance and pressure the director (Mr Michel-Elhaj) to pay money to them.[60]
3. Having regard to the context deposed to by Mr Shams (summarised at [38] and [39] above), and Mr Shams' evidence as to the basis of his understanding that there was a possibility of the investment being 'redeemed' following completion of the Sky Homes Properties by the new builder,[61] the message is not a basis for concluding an ulterior purpose and a lack of good faith.

1. Girgis Nominees (WA) and Sun Dental seek to inspect all of the books of Diamond Development Alliance. That is, all of the books of a company which was registered in December 2016. I note the concern raised on behalf of Diamond Development Alliance as to the scope of inspection sought.
2. The order sought will permit inspection of documents created over a decade. In all of the circumstances however, I do not consider the asserted purpose to have been undermined by the net having been cast so wide.
3. The case made for investigation includes the circumstances in which the purported issue of 700,000 A Class shares in Diamond Development Alliance occurred.
4. Mr Michel-Elhaj deposed that on 6 October 2017 (some 20 days before it executed a contract to purchase the Sky Homes Properties) the subscription agreement was executed which contemplated Diamond Development Alliance issuing 700,000 A Class shares at 50 cents per A Class share.[62]
5. While the first tranche payment for the issue of the A Class Shares was to occur on execution of the subscription agreement (that is, on 6 October 2017), the second, substantive tranche was payable on demand by Diamond Development Alliance. While the ASIC register records that the shares were fully paid, counsel for Girgis Nominees (WA) and Sun Dental noted that they do not know whether the second tranche was ever in fact paid.[63]
6. Further, the case made for investigation includes the use of Diamond Development Alliance's funds for purposes other than purposes of Diamond Development Alliance. In this regard, I note the evidence of Mr Michel-Elhaj who, among other things, deposed that:[64]

On 5 May 2019 and again on 8 November 2021, [Diamond Development Alliance] refinanced various facilities made available to [Diamond Development Alliance] and other entities for the purpose of furthering the development of the [Sky Homes Properties] and other properties owned by companies of which I am a director.

1. The evidence records that Diamond Development Alliance was both a borrower and a cross-guarantor of obligations owed by other entities in favour of the National Australia Bank. While a refinance of various NAB facilities occurred in May 2019, there is no evidence as to what finance arrangements were made and when finance was first arranged by Diamond Development Alliance (that is, when it first became a borrower); if funds were extended for purposes other than those of Diamond Development Alliance, when that occurred; or when and in what circumstances it became a cross-guarantor.
2. The case for investigation concerns conduct that took place shortly after registration of Diamond Development Alliance, and since that time. The information available to the applicants has caused them to have grave concerns as to all aspects of Diamond Development Alliance's operations, and whether those operations were consistent with or in furtherance of its purpose. In this case, the applicants have done more than show dissatisfaction with or disagreement with management decisions.[65] In all of the circumstances I am satisfied that the breadth of the books sought to be inspected does not demonstrate a lack of good faith on the part of the applicants, but is warranted.

1. For these reasons, the application will be granted. The power having been enlivened, there is a strong case for the exercise of discretion to grant the orders sought.
2. I will hear the parties as to the form of orders and costs.

Sch A - The entities set out at sch 1 to the Deed of Repayment and Release (Diamond) dated 22 May 2025

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

[1] The submissions filed on behalf of the defendant in opposition to the application references matters deposed to by Mr Michel-Elhaj in his affidavit sworn on 20 February 2026.

[2] Affidavit of SEW Girgis sworn 22 December 2025, SEWG-1; affidavit of R Michel-Elhaj sworn on 20 February 2026, RME1.

[3] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 2; affidavit of R Michel-Elhaj sworn on 20 February 2026 par 2.

[4] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 6; affidavit of R Michel-Elhaj sworn on 20 February 2026 par 6.

[5] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 4, RME1; affidavit of R Michel-Elhaj sworn on 20 February 2026 par 4, RME1.

[6] Affidavit of BJ Wensley sworn on 9 December 2025, BJW1.

[7] Affidavit of R Michel-Elhaj sworn on 4 December 2025 par 2, ME1.

[8] Affidavit of R Michel-Elhaj sworn on 4 December 2025 par 4.

[9] Affidavit of SEW Girgis sworn on 22 December 2025 pars 6, 8.

[10] Affidavit of SEW Girgis sworn on 22 December 2025, SEWG-2; affidavit of BJ Wensley sworn on 9 December 2025, BJW4.

[11] Affidavit of BJ Wensley sworn on 9 December 2025, BJW3.

[12] Affidavit of BJ Wensley sworn on 9 December 2025, BJW5.

[13] Supplementary affidavit of SEW Girgis sworn on 10 February 2026 par 3, SEWG-5.

[14] Supplementary affidavit of SEW Girgis sworn on 10 February 2026 pars 5 - 6, SEWG-7.

[15] Affidavit of BJ Wensley sworn on 9 December 2025, BJW2.

[16] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 4, RME-1.

[17] Affidavit of R Michel-Elhaj sworn on 25 September 2025 pars 7 - 10; affidavit of R Michel-Elhaj sworn on 20 February 2026 pars 7 - 10.

[18] Affidavit of R Michel-Elhaj sworn on 12 December 2025, R1.

[19] Affidavit of R Michel-Elhaj sworn on 12 December 2025, R2; affidavit of R Michel-Elhaj sworn on 20 February 2026, RME4.

[20] Affidavit of R Michel-Elhaj sworn on 12 December 2025, R2; affidavit of R Michel-Elhaj sworn on 20 February 2026, RME4 (cl 21, Definitions and interpretation).

[21] Affidavit of R Michel-Elhaj sworn on 12 December 2025, R2; affidavit of R Michel-Elhaj sworn on 20 February 2026, RME4 (Introduction).

[22] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 11.

[23] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 12, RME6.

[24] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 14.

[25] Affidavit of SEW Girgis sworn on 22 December 2025, SEWG-3.

[26] Affidavit of SEW Girgis sworn on 22 December 2025, SEWG-4.

[27] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 19, RME7.

[28] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 21.

[29] Affidavit of R Michel-Elhaj sworn on 25 September 2025 pars 22 - 23, RME7.

[30] Affidavit of R Michel-Elhaj sworn on 25 September 2025 pars 24 - 26.

[31] Supplementary affidavit of SEW Girgis sworn on 10 February 2026, SEWG-8.

[32] Supplementary affidavit of SEW Girgis sworn on 10 February 2026 par 7, SEWG-8; affidavit of BJ Wensley affirmed on 9 December 2025 pars 3, 6, BJW2, BJW5.

[33] Affidavit of M Shams sworn on 28 February 2026 pars 3 - 7.

[34] Affidavit of M Shams sworn on 28 February 2026, MS-1.

[35] Affidavit of SEW Girgis sworn 22 December 2025 par 10.

[36] Affidavit of SEW Girgis sworn on 22 December 2025 par 11; affidavit of R Michel-Elhaj sworn on 25 September 2025, RHE2 (Constitution); affidavit of R Michel-Elhaj sworn on 12 December 2025 pars 3 ‑ 5.

[37] Affidavit of SEW Girgis sworn on 22 December 2025 par 9.

[38] Affidavit of SEW Girgis sworn on 22 December 2025 pars 12 - 13.

[39] Affidavit of SEW Girgis sworn on 22 December 2025 par 13.

[40] Affidavit of SEW Girgis sworn on 22 December 2025 par 13.2.

[41] Affidavit of SEW Girgis sworn on 22 December 2025 par 14.

[42] Affidavit of SEW Girgis sworn on 22 December 2025 par 4.

[44] Mesa Minerals Ltd v Mighty River International Ltd [2016] FCAFC 16; (2016) 241 FCR 241 [22(1)] and the cases therein cited; Enares Pty Ltd v Nimble Money Ltd [2022] FCAFC 126 [36], [38] and the cases therein cited.

[45] Enares Pty Ltd v Nimble Money Ltd [39], [42] and the case therein cited.

[46] Mesa Minerals Ltd v Mighty River International Ltd [22(4)] and the case therein cited; Enares Pty Ltd v Nimble Money Ltd [37] and the cases therein cited.

[47] Mesa Minerals Ltd v Mighty River International Ltd [22(2)] and the cases therein cited; Enares Pty Ltd v Nimble Money Ltd [48].

[48] Mesa Minerals Ltd v Mighty River International Ltd [22(3)], [22(9)] and the cases therein cited; Enares Pty Ltd v Nimble Money Ltd [38], [43] and the cases therein cited.

[49] Mesa Minerals Ltd v Mighty River International Ltd [22(6)] and the case therein cited.

[50] Mesa Minerals Ltd v Mighty River International Ltd [22(7)] and the case therein cited; Enares Pty Ltd v Nimble Money Ltd [48] and the case therein cited.

[51] Mesa Minerals Ltd v Mighty River International Ltd [22(8)] and the cases therein cited; Enares Pty Ltd v Nimble Money Ltd [48] and the case therein cited.

[52] Mesa Minerals Ltd v Mighty River International Ltd [22(5)] and the case therein cited.

[53] Mesa Minerals Ltd v Mighty River International Ltd [22(12)] and the cases therein cited.

[54] Mesa Minerals Ltd v Mighty River International Ltd [22(13)] and the case therein cited; Enares Pty Ltd v Nimble Money Ltd [36], [49] - [50] and the cases therein cited.

[55] Plaintiffs' submissions filed on 10 February 2026 par 8.

[56] Defendant's submissions filed on 20 February 2026 pars 26 - 30; plaintiffs' supplementary submissions filed on 27 February 2026 pars 2.3, 5.

[57] Defendant's submissions filed on 20 February 2026 par 26.

[58] Plaintiffs' supplementary submissions filed on 27 February 2026 par 3.1, citing Hanks v Admiralty Resources [2011] FCA 891; (2011) 85 ACSR 101 [32]; and McNeill v Hearing & Balance Centre Pty Ltd [2007] NSWSC 942 [23] - [25].

[59] Defendant's submissions filed on 20 February 2026 par 27.

[60] Defendant's submissions filed on 20 February 2026 par 28.

[61] Affidavit of M Shams sworn on 28 February 2026 par 7.

[62] Affidavit of R Michel-Elhaj sworn on 4 December 2025 par 2.

[63] Plaintiffs' submissions filed on 10 February 2026 par 49; ts 7 - 8 (3 March 2026).

[64] Affidavit of R Michel-Elhaj sworn on 25 September 2025 par 7; affidavit of R Michel-Elhaj sworn on 20 February 2026 par 7.

[65] In contrast to the concerns raised by the applicants in Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237, where the concerns did not amount to showing a case for investigation.