KALAUI PTY LTD -v- MOOVE HOLDINGS PTY LTD [2025] WASCA 23 (31 January 2025)

1. For the following reasons, this court's discretion to strike out this appeal under s 43(3) of the Act is enlivened on the basis that 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. In the circumstances of the present case, that discretion should be exercised in favour of striking out the appeal.

1. On 31 January 2022, Moove Holdings entered into an agreement, styled an Offer to Lease, with Kalaui. The Offer to Lease was an agreement for the lease of commercial premises owned by Kalaui to Moove Holdings. Item 13 of the Offer to Lease provided:[1]

[Moove Holdings] must pay the leasing deposit of $4125 including GST and estimated legal costs of $1,900 including GST, to [Kalaui] within 48 hours of acceptance of this Offer to Lease which will be forfeited to [Kalaui] if [Moove Holdings] attempts to withdraw from this offer to lease. (For extensive negotiation the Legal Costs figure may increase. Any excess amounts will be refunded).

Moove Holdings paid $6,025, being the deposit and estimated legal costs, on 2 February 2022.

1. The Offer to Lease required Moove Holdings to execute a lease within seven days. The lease was to be in substantially the same form as that annexed to the Offer to Lease, allowing for reasonable amendments as agreed between the parties.
2. The parties were unable to reach agreement on the terms of the lease and, on 8 March 2022, Moove Holdings asked Kalaui to return the deposit and estimated legal costs.
3. On 17 March 2022, Moove Holdings commenced the First Proceedings as a minor case claim in the Magistrates Court, claiming recovery of the $6,025 deposit and estimated legal costs.
4. On 31 March 2022, Kalaui's solicitors sent a notice of termination of lease to Moove Holdings, stating that Kalaui terminated the Offer to Lease on the grounds of repudiation effective immediately. The notice went on to say that it did so:[2]

... subject and without prejudice to [Kalaui's] rights to forfeit the deposit paid under the [Offer to Lease] and to claim loss of bargain damages for the repudiation.

1. Also on 31 March 2022, Kalaui lodged a response to Moove Holdings' minor case claim in the First Proceedings. In its response, Kalaui asserted that Moove Holdings had repudiated the Offer to Lease and that Kalaui had accepted the repudiation and terminated the Offer to Lease on 31 March 2022. Kalaui asserted that it was therefore entitled to forfeit and retain the deposit and estimated legal costs.
2. The standard form for the response included an 'application for counterclaim' with a box to be marked by a defendant who wishes to counterclaim in the proceedings. Kalaui marked this box with an 'x' and included the following details of its counterclaim in the relevant section of the form:[3]
   1. Declaration that the [Offer to Lease] was repudiated by [Moove Holdings] and terminated by [Kalaui] for [Moove Holdings'] repudiation.
   2. Declaration that [Kalaui] is entitled to forfeit the deposit of $6,025 paid under the [Offer to Lease] and retain it.
   3. Damages for repudiation.
3. On 17 October 2022, Kalaui entered into an agreement with new tenants for the lease of its commercial premises.
4. The trial of the First Proceedings took place on 25 October 2022. Prior to trial, there was a status conference at which there was no mention of the counterclaim. Similarly, no mention was made of Kalaui's counterclaim for damages at trial, and Kalaui did not adduce any evidence in support of its claim for damages for repudiation of the Offer to Lease. Nor was there any articulation of the amount of Kalaui's damages claim. Judgment was reserved at the conclusion of the proceedings.
5. On 14 November 2022, Kalaui entered into a deed of lease with its new tenants, with a commencement date of 1 November 2022.
6. On 21 November 2022, the magistrate delivered judgment in the First Proceedings. The magistrate found that Kalaui had not breached the Offer to Lease in the manner alleged by Moove Holdings, and that Moove Holdings had repudiated the Offer to Lease on 8 March 2022. Moove Holdings thereby forfeited its deposit and the estimated legal costs. The magistrate held that, because Kalaui had only incurred $1,390 in legal fees ($510 less than the estimate provided in the Offer to Lease of $1,900), Kalaui was to repay the difference to Moove Holdings. Accordingly, judgment was entered for Moove Holdings in the sum of $510.
7. No appeal was brought by either party against that decision.
8. On 17 April 2023, Kalaui commenced the Second Proceedings as a general procedure claim against Moove Holdings in the Magistrates Court. In the Second Proceedings, Kalaui sought damages for repudiation of the Offer to Lease in the amount of not less than $20,620.74, plus interest and costs.
9. The primary judge described Moove Holdings' defence to Kalaui's claim in the Second Proceedings as comprising the following elements:[4]

(a) res judicata - the cause of action (damages for repudiation had already been adjudicated);

(b) Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589) - it was unreasonable for [Kalaui] not to have pursued the claim [in the First Proceedings];

(c) functus officio - under the relevant legislation the court was precluded from again considering a matter that had already come before it; and

(d) further matters relating to the merits which it said justified refusal of the relief. Relevantly, [Moove Holdings] contended that the remedies afforded under the [Offer to Lease] had been exhausted and no further damages could be awarded.

1. The trial of the Second Proceedings took place on 13 February 2024. On 15 March 2024, the Magistrates Court dismissed Kalaui's claim in the Second Proceedings. While there was some debate before the primary judge as to the basis of the dismissal, his Honour found that the trial magistrate dismissed the claim on each of the bases summarised in the passage quoted at [19] above.
2. The magistrate made a provisional assessment of damages, accepting that the claimed amount was Kalaui's loss 'save to remove the GST component'.[5] Kalaui submits that removal of the GST component reduced the claimed amount to $18,746.13.[6]
3. On 22 March 2024, Kalaui appealed to the District Court against the dismissal of its claim in the Second Proceedings. The primary judge distilled the following points from the lengthy grounds of appeal to the District Court:[7]
   1. That the [magistrate in the Second Proceedings] erred in fact and in law in holding that the counterclaim application [in the First Proceedings] was an actual counterclaim which was filed pursuant to r 10(2) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) ... and which was on foot and heard at the hearing before the [magistrate in the First Proceedings] and effectively determined in the decision of the [magistrate in the First Proceedings] (Ground 1).
   2. By reason of so erring, the [magistrate in the Second Proceedings] then erroneously held that res judicata, cause of action estoppel, inconsistency and the court being functus officio were all applicable (Ground 2).
   3. The [magistrate in the Second Proceedings] erred in holding that [Kalaui] was prevented by Anshun estoppel from bringing the claim (Ground 3).
   4. The [magistrate in the Second Proceedings] erred in law in holding that item 13 of the [Offer to Lease] conferred the sole remedy available to the appellant for repudiation by [Moove Holdings] of the offer to lease and in not holding that [Kalaui] was entitled to sue for and recover unliquidated damages claimed for repudiation of the [Offer to Lease] (Ground 4).
4. The District Court appeal was heard by the primary judge on 29 August 2024. On 9 October 2024, the primary judge delivered detailed written reasons for dismissing the appeal. In very broad summary, his Honour found that none of the grounds identified above were established for the following reasons:
   1. The magistrate did not err in dismissing the counterclaim on the basis of the doctrine of res judicata. The record of the First Proceedings disclosed that there was a minor case claim against Kalaui, which filed a counterclaim seeking identified remedies, and judgment was entered in favour of Moove Holdings in the amount of $510. Nothing in the First Proceedings suggested the counterclaim was removed from those proceedings, or that the counterclaim exceeded the minor case jurisdiction. The declarations sought in the counterclaim were granted in substance. The fact that Kalaui did not adduce evidence in support of its counterclaim for damages, and the magistrate did not deal with the claim for damages in his reasons, did not mean that the claim was not before the court. The counterclaim was on foot in the First Proceedings and merged in the judgment.[8]
   2. The magistrate did determine that the Magistrates Court was functus officio and was correct to do so. The Magistrates Court's powers to determine the claim for damages were spent upon judgment being delivered in the First Proceedings and the Magistrates Court had no power to revisit that claim.[9]
   3. Anshun estoppel was established in circumstances where the counterclaim was on foot and the counterclaim and claim were interconnected with the same facts and issues needing to be traversed. Resolution of the counterclaim was so tied up with the claim that it would be unreasonable for Kalaui to seek to have its counterclaim dealt with in subsequent fresh proceedings. Kalaui could still have litigated the counterclaim in the First Proceedings even though the loss had not yet crystallised (through the re-leasing of the property to a third party on terms that were less favourable to Kalaui) when the Second Proceedings were commenced. It was unreasonable for Kalaui to fail to put on evidence in the First Proceedings as to the extent of the damage it claimed.[10]
   4. Item 13 of the Offer to Lease provided for the exclusive remedy available to Kalaui for termination, namely retention of the deposit and estimated legal costs.[11] Further, if the primary judge was wrong in this conclusion, an issue estoppel arose from the determination of the First Proceedings which precluded Kalaui from now advancing an alternate construction of the clause.[12]
5. On 6 November 2024, after dealing with issues of costs, the primary judge made formal orders dismissing the appeal to the District Court and awarding costs to Moove Holdings (with the time limit for the scale item of preparation of appeal being raised from 10 to 17.75 hours).

1. On 18 November 2024, Kalaui appealed to this court against the primary judge's orders. On 21 November 2024, the Court of Appeal registrar ordered the parties to file and serve written submissions limited to three pages in relation to the nature of the appeal and as to whether the appeal should be struck out pursuant to s 43(3) of the Act by 5 December 2024.
2. Kalaui filed its submissions on this question on 4 December 2024. Also on 4 December 2024, Kalaui filed its appellant's case in the appeal. The time for filing the appellant's case did not expire until 23 December 2024. In the s 43(3) submissions, counsel for Kalaui explained that:[13]

In order to make coherent submissions in the required 3 pages, I decided to complete the work which had commenced on the Appellant's Case and to file and serve the Appellant's Case in order to elucidate the complexity and importance of the issues by reference to the Appellant's Case.

1. On 5 December 2024, Moove Holdings filed submissions which contended that the appeal should be struck out under s 43(3) of the Act on the basis that the likely costs of the appeal will be disproportionate to the amount of the claim.
2. On 11 December 2024, the Court of Appeal registrar issued a notice for the parties to attend on 24 January 2025, for the court to consider whether the appeal should be struck out pursuant to s 43(3) of the Act.

1. Section 40 of the Act provides for a party to a case in the Magistrates Court which is not a minor case to appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case or the judgment of the Magistrates Court in the case. Section 42 of the Act provides that a party to an appeal made to the District Court under s 40 may appeal to this court against the District Court's judgment on the appeal. There is no requirement for leave to appeal in relation to interlocutory orders of the Magistrates Court. However, s 43(3) of the Act provides, in effect, that this court may strike out an appeal if the likely costs of the appeal would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
2. We set out the general principles relating to the application of the discretion conferred by s 43(3) of the Act in Miller v McKnight:[14]

It is apparent that there 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. The expression 'the nature of the case' in the second limb does not relate to the strength or merits of the appeal. But nor is the nature of the case confined to the nature of the substantive proceedings in the Magistrates Court - it might, for example, be that the appeal is brought against an interlocutory order. The term 'disproportionate' means out of proportion. Whether the likely costs are disproportionate is an evaluative question of fact and degree. 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.

Two main issues arise in relation to the potential application of s 43(3) of the Act. First, the appeal court must determine whether its power to strike-out the appeal is enlivened - are one or both of the limbs under s 43(3) satisfied? Second, assuming the power to strike-out is enlivened, should the power be exercised? This second issue involves the exercise of a judicial discretion.

The exercise of the discretion is informed by the statutory purpose that underpins s 43(3). That purpose was described by Newnes & Murphy JJA in Cristovao v John Horton & Associates [[2012] WASCA 1 [22]]:

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.

Accordingly, s 43(3) is not concerned with proportionality in the sense of the application of scarce public resources in terms of the use of the limited judicial resources of the court - the provision is only concerned with the resources of the parties.

Two more things may be said about the exercise of the discretion. First, in considering whether an appeal should be struck out based on the first limb it is not necessary to consider whether the second limb has also been made out. Second, in the exercise of the discretion this court is not required to consider the merits of the decision below. Otherwise the discretion is an unfettered discretion to be exercised judicially according to the justice of the case.

(some citations omitted)

Whether the power to strike out the appeal is enlivened

1. We are satisfied that 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. The power in s 43(3) of the Act is therefore enlivened.
2. The amount of the claim in this case is 'not less than $20,620.74', plus interest and costs claimed in the general procedure claim in the Second Proceedings.[15] The value of that claim has been uncontroversially determined by the magistrate to be in that amount less a GST component.
3. Moove Holdings relies on affidavits sworn in the primary proceedings indicating that Moove Holdings incurred costs of $53,831.68 in defending the claim made in the Second Proceedings at trial,[16] and about $50,686.95 in defending the District Court appeal.[17] In referring to this evidence, counsel for Moove Holdings recognises that the proportionality question relates to the costs estimated to be incurred in this court rather than in the lower courts. However, Moove Holdings invites the court to infer that a similar amount of costs are likely to be incurred in defending the appeal to this court.
4. Kalaui's grounds of appeal to this court are prolix, convoluted and raise many issues. We note that ground 1 of the appeal to this court seeks to impugn the primary judge's attempt to distil meaning from the lengthy grounds of appeal in the District Court. Given that, and the circumstance that the court is not required to determine the merits of the appeal at this stage, we will not attempt to identify the essential points which Kalaui seeks to make at this time. Rather, we have set out the grounds of appeal to this court verbatim in the appendix to these reasons.
5. We are satisfied that the drafting of these grounds and the supporting submissions would have taken considerable time. We are also satisfied that engaging with, divining the full meaning of and responding to the grounds of appeal will be no small task for Moove Holdings' legal representatives. The significant time and cost likely to be involved in the preparation of a respondent's answer is highlighted by the circumstance that Kalaui has referred to more than 30 legal authorities of which 26 are asterisked as authorities which counsel for Kalaui might read from during oral submissions at the appeal hearing. Moreover, the exercise in preparing the respondent's answer and preparing for the appeal hearing will be complicated by the fact that the grounds and written submissions in the appellant's case incorporate by reference various written submissions filed in the appeal to the District Court. This unsatisfactory approach to the preparation of the appellant's case adopted by Kalaui's legal representatives has significantly increased the likely costs to be incurred by the parties in the appeal to this court.
6. In the circumstances, we infer that the costs which Moove Holdings will incur in defending this appeal if it proceeds to a determination on the merits is likely to be in the vicinity of those incurred in defending the District Court appeal.
7. Kalaui has not referred to or adduced any evidence in relation to the legal costs which it has incurred or is likely to incur. In the absence of any evidence to the contrary, we infer that the costs likely to be incurred in this appeal by Kalaui are of a similar amount to those likely to be incurred by Moove Holdings. That is all the more so where Kalaui is the moving party to the appeal and it will have to prepare appeal books and the like.
8. Therefore, we infer that the costs of the appeal to the parties if it proceeds to a final determination is likely to exceed $100,000. In making that estimate, we note that the reference in s 43(3) of the Act is to the 'likely cost of the appeal to the parties' rather than to the amount which may be allowed on a party/party costs assessment. We also note that a portion of Kalaui's costs have already been incurred and, in that respect, cannot be avoided even if this court strikes out the appeal. That is an inevitable consequence of Kalaui having chosen to prepare and file its appellant's case despite the Court of Appeal registrar having raised the issue of whether the appeal should be struck out pursuant to s 43(3) of the Act.
9. Kalaui's submissions opposing the striking out of the appeal did not take issue with Moove Holdings' contention that the likely cost to the parties of the appeal to this court exceed the amount of the claim to a significant extent. While counsel for the appellant at one stage submitted that the 'amount of the claim' included costs incurred in the Magistrates Court trial and District Court appeal, he withdrew that submission later in his oral submissions. The withdrawal of that submission, which was inconsistent with the approach taken by this court in Miller,[18] and not supported by the authority on which counsel relied,[19] was appropriate.
10. In our view, the likely cost of this appeal to the parties of an amount in excess of $100,000 is grossly disproportionate to the amount of the claim in the Magistrate's Court. The likely cost to the parties of the appeal if it is allowed to proceed to final determination exceeds the amount of the claim by a factor of five. Our power to strike out the appeal under s 43(3) of the Act is enlivened in this case.
11. Kalaui contends that the costs of the appeal to this court should not be held disproportionate to the nature of the case because of both its importance and its complexity. However, that submission seeks to engage the second limb of s 43(3) of the Act which enlivens the court's power to strike out the appeal. In circumstances where we are satisfied that the power is enlivened under the first limb, it is unnecessary to consider the second limb or Kalaui's submissions in relation to the second limb.

1. We turn to consider the manner in which the discretionary power to strike out the appeal under s 43(3) of the Act should be exercised in this case.
2. The present case concerns a small commercial leasing dispute about:
   1. whether an agreement to lease was repudiated;
   2. whether Kalaui was entitled to claim and retain the deposit and estimated legal costs; and
   3. whether Kalaui was entitled to claim damages in an amount that is not now seriously disputed.
3. The amount at issue - about $20,000 - has been dwarfed by the costs of about $104,000 incurred by Moove Holdings in the Magistrates Court and the District Court. If Kalaui incurred similar costs, then the parties' combined legal costs in the courts below would exceed $200,000.
4. The legal costs incurred by the parties in the courts below are not relevant to whether the power in s 43(3) of the Act is enlivened except so far as they support an inference as to the likely costs of the appeal to this court. However, once the power is enlivened, the legal costs already incurred by the parties in the courts below are relevant to the question of the exercise of this court's discretion to strike out the appeal. The fact that the legal costs incurred in the proceedings below are disproportionate to the amount of the claim tends to favour the exercise of the discretion to strike out the appeal. It is in the interests of justice for this court to do what it can to avoid a situation where parties are likely to incur hundreds of thousands of dollars in legal costs litigating a claim of about $20,000. It is not in the interests of justice to allow the perpetuation of litigation where its cost to the parties is disproportionate to the value of the dispute. Such a situation tends to bring the due administration of justice into disrepute, adversely affecting public confidence in the operation of the justice system.
5. In terms of the exercise of the power, once it is enlivened, the complexity of the case is a factor that tends to increase the costs to be incurred by the parties and so favours the striking out of the appeal.
6. In contending that this court should exercise its discretion not to strike out the appeal under s 43(3) of the Act, Kalaui points to the following matters:
   1. There is a public interest in this court determining what Kalaui characterises as important jurisdictional issues concerning the operation of s 28(4) of the Act and r 23AA(3) of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), which deal with how a counterclaim that is not a minor case may be dealt with by the Magistrates Court.
   2. Moove Holdings made no application for the appeal to the District Court to be struck out under s 43(3) of the Act.
   3. The basis for the primary judge's decision on the jurisdictional issue is unclear.
7. In relation to the importance of the jurisdictional issue, Kalaui submits:[20]

In circumstances like the present, where a party, like [Kalaui], has requested to make a counterclaim for more than the $10,000 limit for a minor case (as defined in s.26 of the Act) but the requested counterclaim but [sic] was not mentioned at the minor case hearing on the earlier status conference, that party is, applying the decision under appeal, at risk of that counterclaim (which was therefore not a minor claim) being found to have been heard and determined even though, under the clear meaning of the statutory text of s.28(4) of the Act, there was no jurisdiction for that counterclaim to have been heard or determined under the minor cases procedure without both parties' consent under s.28(4)(a) of the Act (and there was no suggestion by either party or the Judge of such consent having been given).

1. This submission as to the importance of the case appears in part to be directed to the merits of the primary judge's decision. It is not in the interests of justice to treat the question of whether the appeal should be struck out under s 43(3) of the Act as an opportunity to determine the merits of the appeal. Indeed, doing so is contrary to the clear legislative policy evinced by s 43(3). Otherwise, the costs of dealing with the s 43(3) questions are likely to approach those of determining the appeal. We acknowledge that there will be some appeals, undoubtedly rare, where the merit (or lack of merit) of the appeal is manifest on the face of the grounds of the appeal. In such a case the overwhelming merit (or lack of merit) may be a dispositive consideration in the exercise of the discretion. This is not such an appeal. Having considered the appellant's case, the most that can be said is that the appeal is reasonably arguable; it cannot be characterised as frivolous or vexatious. This is a factor to be taken into account in the exercise of the discretion. It weighs against the appeal being struck out pursuant to s 43(3). But it is only one of a number of factors to be taken into account in the exercise of the discretion.
2. We are not satisfied that the importance of the case to the parties is a reason for declining to exercise the power to strike out the appeal. In contrast to the situation in Miller, the present dispute does not form part of a larger dispute between the parties or commercial interests standing behind them. From the parties' perspective, the only question at issue is whether Moove Holdings is required to pay Kalaui a sum of about $20,000.
3. As noted above, Kalaui also submits that there is a public interest in this court reviewing the decision under appeal 'before it becomes an important precedent concerning the exercise of the jurisdiction of the Magistrates Court under the minor cases procedure'.[21] We are not satisfied that the decision of the primary judge in the appeal to the District Court is likely to become such an 'important precedent'. The arguments sought to be agitated by Kalaui arise in a particular procedural context where:
   1. a plaintiff advanced a small claim in the Magistrate's Court;
   2. the defendant made a counterclaim for damages (or, on Kalaui's case, made application to make a counterclaim for damages) without advancing anything to suggest that the amount of the counterclaim exceeds the $10,000 limit;
   3. no one said anything about the counterclaim for damages in the course of dealing with the minor case; and
   4. the defendant did not challenge by appeal the implicit dismissal of the claim for damages (or, on Kalaui's case, alleged implicit dismissal).
4. This is unlikely to be a commonplace combination of circumstances. To the extent that the resolution of the issues turns on construing the procedural rules applicable in the Magistrates Court, the importance of the issues does not warrant the parties to the current proceedings being forced to incur costs which are disproportionate to the amount of the claim. To the extent that the dispute turns on the application of principles of res judicata and Anshun estoppel, future courts are likely to derive those principles principally from decisions of the High Court and intermediate appellate courts rather than the primary decision in this case.
5. Further, as counsel for Moove Holdings points out, in determining the appeal it may not be necessary for this court to resolve the issue which Kalaui identifies as important. For example, if this court upheld the Anshun estoppel defence, which does not depend on the existence of a counterclaim pending in the First Proceedings, that would be a sufficient basis for dismissing the appeal. It would then be unnecessary to resolve the res judicata point and associated debate as to the operation of the Act and rules of court. This real potential for the appeal to be determined on other grounds reduces the significance of the alleged importance of the jurisdictional issue identified by Kalaui to the exercise of this court's discretion.
6. We do not regard the fact that Moove Holdings did not apply for an order under s 43(3) of the Act in the District Court appeal to be a significant factor in the exercise of our discretion in circumstances where Kalaui instituted the District Court appeal. Although Moove Holdings might have sought to avoid many of the legal costs incurred in the District Court appeal by making such an application, it did not itself cause those costs to be incurred. The fact that, at Kalaui's instigation, disproportionate costs were incurred in the District Court does not justify allowing the exercise to be repeated in this court.
7. Oral submissions by counsel for Kalaui as to the alleged lack of clarity of the primary judge's reasons contrasted the findings made at [51] and [91] of the primary decision. At [51] of the primary decision, the primary judge accepted Kalaui's submission that, before dealing with the matter, the Magistrates Court was required to satisfy itself that the counterclaim was for not more than the minor case jurisdictional limit and that Kalaui had elected to have the counterclaim dealt with under the minor cases procedure. At [91] of the primary decision, the primary judge held that, in completing the standard form in the manner described at [12] above, Kalaui made a counterclaim in the First Proceedings. Contrary to counsel's submissions, we do not perceive any inconsistency or ambiguity in these parts of the primary judge's reasons.
8. Having regard to the above matters and weighing the relevant factors in the present case, in our view it is in the interests of justice to strike out this appeal on the ground that 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. We would make an order to that effect.

1. The learned Judge of the District Court ("the Judge") erred in law at J [29] in the reasons for judgment [2024] WADC 86 ("J"), in classifying the particulars to the grounds of appeal ("Grounds") as submissions which were not required to be set out in his reasons because:

1.1. the Grounds included particulars ("Particulars") which were required to be included to comply with r.51(3) of the District Court Rules 2005 by detailing the specific reasons why the decision of the Perth Magistrate was wrong in law; and

1.2. the amended submissions filed on 27 June 2024 by the appellant ("Primary Submissions") and the submissions in reply filed 27 June 2024 ("Reply Submissions") and the further submissions filed 5 September 2024 ("Further Submissions") were appropriate submissions based on the Grounds;

and, as a result of that error, the Judge further erred in law by, firstly, not engaging with, and, secondly, by not upholding, the appellant's case in Particular 1.4.1 as detailed in the Primary Submissions, the Reply Submissions and the Further Submissions that:

1.3. applying the cases referred to in para 1 of the Relpy Submissions, the jurisdiction of the Magistrates Court to deal with a counterclaim under the minor cases procedure is, on the correct construction of the Magistrates Court (Civil Proceedings) Act 2004 ("the Act") and the rules made thereunder, subject to a condition under s.28(4) of the Act ("s.28(4)") if the counterclaim is "a counterclaim that is not a minor case" ("the s.28(4) Condition"); and

1.4. the existence of the s.28(4) Condition is, on the correct construction of the Act and the rules made thereunder, clearly imposed not only by reason of the form of s.28(4) of the Act but also by reason of:

1.4.1. Part I in Form 15A in Magistrates Court (General) Rules 2005 Schedule 2 ("Form 15A"), being the required form of response to a minor claim, is entitled "Request for Counterclaim" in contrast to the different procedure for institution (without making a request) of a counterclaim under the general procedure (as defined in s.26(1) of the Act) detailed in para 1.2 of the of the Primary Submissions because s.28(4), properly construed in accordance with the authorities referred to in para 1 of the Reply Submissions, must be complied with before the Court has jurisdiction to determine a counterclaim that is not a minor case under the minor cases procedure (as defined in s.3(1) of the Act); and

1.4.2. the procedure required by Rule 23AA(3) of Magistrates Court (Minor Cases Procedure) Rules 2005 ("Minor Cases Rules") ("Rule 23AA") must, properly construed in accordance with the authorities referred to in para 1 of the Reply Submissions, be complied with before any final hearing under the minor cases procedures where, in the form 15A response to a minor case, there is a request to make a counterclaim that is not a minor case.

1. The Judge erred in law in holding at J [59], [91] and [119]-[121] that the appellant had, by filing the proposed counterclaim, commenced an actual counterclaim which was before the Fremantle Magistrate at the final hearing under the minor cases procedure, rather than holding, consistently with the propositions accepted by the Judge at J [51], that, on the proper construction of the Act and the rules made thereunder referred to in ground 1 above, there was no jurisdiction in the Court to determine the proposed counterclaim (as defined in the Grounds) at a final hearing under the minor cases procedure because, pursuant to Rule 23AA, the Court had not, prior to that final hearing at a status conference and/or at a hearing under Rule 23AA(b)(i) and/or a further status conference under Rule 23AA(4):

2.1. determined that the proposed counterclaim was a minor case and that the whole of the counterclaim was to be heard under the minor cases procedure at the same time as the respondent's minor case; or

2.2. determined that the proposed counterclaim was not a minor case and that the whole of the counterclaim would not be heard under the minor cases procedure at the same time as the respondent's minor case unless both parties consented to that course under s.28(4)(a) of the Act.

1. The Judge erred in fact and law in not holding that, because the steps detailed in ground 2 above which, on the correct construction of the Act and the rules made thereunder referred to in ground 1 above, were required to be taken before the Court would have jurisdiction to hear and determine the proposed counterclaim at a final hearing under the minor cases procedure had not been taken, in that the proposed counterclaim was not even mentioned at either the status conference or the final hearing (as the Judge held at J [105] was the position) or in any evidence before the Fremantle Magistrate or the Perth Magistrate, the irresistible inference, referred to in Particular 1.4.4 and para 2 of the Primary Submissions, that the proposed counterclaim was not heard or determined by the Fremantle Magistrate at the final hearing of the respondent's minor case under the minor cases procedure ("the final hearing") should have been drawn by the Judge for the following reasons, which were the subject of Particulars 1.4.4 and 1.4.5 and para 2 of the Primary Submissions:

3.1. because, after the proposed counterclaim was requested by the appellant in the Form 15A response, the s.28(4) Condition had to be satisfied by implementation of the procedures required by Rule 23AA before the Court would have jurisdiction to hear and determine the proposed counterclaim if it was not a minor claim under the minor cases procedure, there is a legal presumption referred to in para 2.3.2 of the Primary Submissions, which because the proposed counterclaim was not mentioned at the status conference or final hearing was not rebutted, that the Fremantle Magistrate did not hear or determine the proposed counterclaim at the final hearing because the procedures required by Rule 23AA had not occurred and the s.28(4) Condition had therefore not been satisfied; and

3.2. because:

3.2.1. on the proper construction of the Act, and in particular s.30 of the Act and under the applicable common law rule, as referred to in para 2.2 of the Primary Submissions, the Court is obliged to ensure that no self-represented party is disadvantaged by their inability to be represented by a legal practitioner at a hearing under the minor cases procedure and because it is to be inferred that the Fremantle Magistrate fully complied with that obligation at the final hearing;

3.2.2. if the Fremantle Magistrate had intended to hear the proposed counterclaim at, and determine it after, the final hearing under the minor cases procedure, it is to be inferred, as referred to in para 2.2 of the Primary Submissions, that His Honour would have informed the directors of the appellant at the outset of the final hearing of that intention and of the need for them to adduce all evidence which the appellant relied on for the claim for damages in item 3 of the proposed counterclaim; and

3.2.3. as referred to in the preamble to this ground 3, the proposed counterclaim was not mentioned at either the status conference or the final hearing,

3.2.4. no decision was ever made under Rule 23AA that the claim for damages in item 3 of the proposed counterclaim ("Damages Claim") would be heard at the final hearing, so that the Damages Claim the subject of item 3 of the proposed counterclaim in the Form 15A response to the respondent's minor case claim did not become an actual counterclaim at any time before the respondent's minor case was determined by the final judgment of the Fremantle Magistrate after the final hearing;

3.2.5. the reason the appellant adduced no evidence or sought no adjournment of the Damages Claim at the final hearing was, contrary to making a conscious decision as held at J [147] and [152], because the Fremantle Magistrate did not mention at the final hearing that the Damages Claim was being tried, as His Honour was obliged to do if such a trial was taking place; and

3.2.6. the Damages Claim was not heard at, or determined after, the final hearing.

1. The Judge erred in law in not holding that, because the Damages Claim the subject of the proposed counterclaim was not heard or determined by the Fremantle Magistrate at or after the final hearing for the reasons in grounds 1-3 above, the appellant had no right of appeal from any judgment or order of the Fremantle Magistrate not to award damages for repudiation the subject of item 3 in the proposed counterclaim for the reason, detailed in para 2 of the Reply Submissions and the cases there cited, that the claim for damages was not heard or determined by the Fremantle Magistrate and therefore was not the subject of any judgment or order made by the Fremantle Magistrate following the final hearing which could be the subject of an appeal under s.40(1) of the Act, subject to the restrictions in ss.32 and 40 of the Act.
2. By reason of the errors in grounds 1 - 4 above the Judge erred in not upholding Ground 2 of the appeal and in not rejecting the respondent's notice of contention for the reasons detailed in the appellant's responsive submissions to the notice of contention filed 9 July 2024 ("NC Submissions") and the cases cited in the NC Submissions.
3. The Judge erred in law at J [178]-[202]:

6.1. in holding at J [195] that item 13 of the agreement for lease ("Item 13") provided the sole remedy available to the appellant, even if the agreement for lease ("Agreement") was terminated by the appellant for the respondent's repudiation, as the Fremantle Magistrate held was the position, as referred to at J [15];

6.2. in holding at J [198] - [202] that the Fremantle Magistrate held that the award he made was based on the appellant's claim for damages in the proposed counterclaim being limited to forfeiture of the deposit, and erred in not holding that the findings made by the Fremantle Magistrate of repudiation of the agreement for lease by the respondent and termination of the agreement for lease by the appellant and forfeiture of the deposit were all based on the appellant having relied on all those maters in Part H of its response to the minor case (as held at J [11] and [15]), rather than pursuant to the requested counterclaim; and

6.3. in not holding, as contended in paras 10-14 of the Primary Submissions and paras 3 and 4 of the Reply Submissions and cases there cited, that, after termination of the Agreement for repudiation by the respondent:

6.3.1. the appellant was entitled to forfeit the deposit under Item 13 because Item 13, to that extent, was a provision intended to have effect after termination of the Agreement and not because forfeiture of the deposit was an entitlement to recover damages;

6.3.2. the appellant was entitled, in addition to forfeiting the deposit under Item 13, to sue for and recover loss of bargain damages for the repudiation of the Agreement by the respondent;

6.3.3. in the proceedings before the Perth Magistrate the subject of the appeal to the Judge, there were issue estoppels binding on the respondent with respect to the findings of the Fremantle Magistrate of repudiation of the Agreement by the respondent and termination of the Agreement by the appellant for that repudiation; and

6.3.4. because of the issue estoppels referred to in ground 6.3.3 and the other grounds above and because the damages assessed by the Perth Magistrate had not been disputed by the respondent at the trial before the Perth Magistrate, the Judge should have entered judgment for the appellant for damages in the amount assessed by the Perth Magistrate and for costs of the appeal to the Judge and the action before the Perth Magistrate.

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

[1]Kalaui Pty Ltd as Trustee for The Fred Pinzone Family Trust v Moove Holdings Pty Ltd [2024] WADC 86 (primary decision) [178].

[5] Kalaui Pty Ltd atf the Fred Pinzone Family Trust v Moove Holding Pty Ltd (unreported, GCLM 4874/2023 (Magistrate Crawford) 15 March 2024) [104].

[6] Appellant's case filed 4 December 2024, written submissions, par 11.

[10] Primary decision [144] - [164].

[12] Primary decision [198] - [202].

[13] Appellant's submissions filed 4 December 2024, par 5.

[14] Miller v McKnight [2023] WASCA 182 [21] - [27].

[16] Affidavit of Anthony Norman Murdoch sworn 18 October 2024, par 15.

[17] Affidavit of Anthony Norman Murdoch sworn 31 October 2024, attachment G.

[19] Defendi v Eden Hill Plasterers [2008] WASCA 269 [48] - [49].

[20] Appellant's submissions filed 4 December 2024, par 8.

[21] Appellant's submissions filed 4 December 2024, par 9.