MAGNALAW PTY LTD -v- TK ELEVATOR AUSTRALIA PTY LTD [2026] WADC 38

[2026] WADC 38 [2026] WADC 38 (MW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : MAGNALAW PTY LTD -v- TK ELEVATOR AUSTRALIA PTY LTD [2026] WADC 38 CORAM : MACLEAN DCJ HEARD : 12 JUNE 2025 DELIVERED : 8 MAY 2026 FILE NO/S : APP 82 of 2024 BETWEEN : MAGNALAW PTY LTD Appellant AND TK ELEVATOR AUSTRALIA PTY LTD First Respondent LOGIUDICE PROPERTY GROUP Second Respondent BERNARD LAWRENCE Third Respondent GREG FERGUSON LIFT CONSULTANCY Fourth Respondent -- 1 of 45 -- [2026] WADC 38 [2026] WADC 38 (MW) Page 2 ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE M CRAWFORD File Number : PER/GCLM/7534/2024 Catchwords: Appeal from Magistrates Court - Reconsideration of evidence - Legal, factual or discretionary errors - Judgment against claim with no reasonable prospect of success Legislation: Magistrates Court (Civil Proceedings) Act 2004 (WA) Strata Titles Act 1985 (WA) Result: Appeal dismissed Representation: Counsel: Appellant : In person First Respondent : Mr P E Sadler Second Respondent : Mr T Pontre Third Respondent : Mr A L Mason Fourth Respondent : Mr J S Burton Solicitors: Appellant : Not applicable First Respondent : HFW Australia (Perth) Second Respondent : GV Lawyers Third Respondent : Barry Nilsson Lawyers (WA) Fourth Respondent : Cullen Macleod Lawyers -- 2 of 45 -- [2026] WADC 38 [2026] WADC 38 (MW) Page 3 Case(s) referred to in decision(s): Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Crawford v WA Police [2026] WASC 28 Eastmark Holdings Pty Ltd v Kabraji [2013] NSWSC 1763 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468 Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461; (1843) 67 ER 189 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 House v The King [1936] HCA 40 Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Milentis v Howard I Evans as Executor of the Estate of Demetrius Mitskinis [2018] WADC 106 Smolarek v Liwszyc [2006] WASCA 50 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 -- 3 of 45 -- [2026] WADC 38 [2026] WADC 38 (MW) Page 4 Table of Contents Background ................................................................................................................................. 5 Appeal from Magistrates Court .................................................................................................. 8 Overview .................................................................................................................................... 8 No loss ...................................................................................................................................... 13 Separate representation and minor claims complaints ............................................................. 15 Breach of contract and the privity exception ............................................................................ 17 Strata Titles Act 1985 (WA) ..................................................................................................... 19 Derivative action................................................................................................................... 20 Section 141 of the Strata Titles Act 1985 (WA)....................................................................... 24 Jurisdictional fact .................................................................................................................. 26 Misrepresentation, misleading and deceptive conduct ............................................................. 27 Unconscionable conduct claim ................................................................................................. 31 Harassment and annoyance ...................................................................................................... 32 Negligence ................................................................................................................................ 33 Jurisdictional error .................................................................................................................... 34 Bias ........................................................................................................................................... 35 Ground 2 - apprehension bias complaint .............................................................................. 35 Ground 3 - constitutional argument ...................................................................................... 37 Ground 4 - costs agreement .................................................................................................. 38 Section 16(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) .......................... 38 Procedural unfairness ............................................................................................................... 39 Maintenance contractor ............................................................................................................ 41 Former strata manager .............................................................................................................. 41 Former council member............................................................................................................ 41 Lift consultant ........................................................................................................................... 43 Conclusion ................................................................................................................................ 44 -- 4 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 5 MACLEAN DCJ: Background 1 The appellant (Magnalaw) is a strata owner in property at 16 Mill Point Road, South Perth. Part of the property included a 43-year-old lift. 2 The first respondent (maintenance contractor) advised the second respondent (former strata manager) that it would not be renewing the maintenance contract to maintain the lift. The fourth respondent (lift consultant) was retained by the former strata manager to provide an inspection report on the lift. The recommendation was that the lift had to be replaced. Two potential candidates were identified. 3 A meeting of the council of owners voted to replace the lift and voted for a specific contractor to replace the lift. 4 Notwithstanding that vote, and the resolutions passed, and that the lift was owned by a strata company in which Magnalaw amongst others had interests, Magnalaw through Dr Zaghloul determined to take steps to enforce the maintenance contractor to renew the contract and replace components to the lift such as to enable the contract to continue at the previous level of cover described as platinum level.1 5 Magnalaw commenced proceedings against four respondents in the Magistrates Court. 6 The proceedings developed by way of a series of claims by Magnalaw against the maintenance contractor, the former strata manager, the third respondent (former council member) and the lift consultant. 7 The respondents made applications for the claims to be struck out or summarily dismissed. 8 As against the maintenance contractor, the claims were for: (a) breach of contract; (b) misleading or deceptive conduct or misrepresentation; 1 District Court transcript dated 12 June 2025 (Appeal hearing ts) 41. -- 5 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 6 (c) unconscionable conduct; (d) negligence; (e) breach of fiduciary duty; and (f) misappropriation and unjust enrichment. 9 As against the former strata manager, the claims were for: (a) breach of contract; and (b) a witness summons to produce financial documents. 10 As against the former council member, the claims were for: (a) misleading and deceptive conduct; (b) unconscionable conduct; (c) breach of fiduciary duty; and (d) unjust enrichment. 11 As against the lift consultant, the claims were for: (a) misrepresentation as to parts of the lift being obsolete; (b) misrepresentation arising from advice and recommendations that the lift should be replaced; (c) misrepresentation as to the lift's condition; and (d) misrepresentation by silence as to the maintenance contractor's contractual obligation to maintain the lift. 12 The learned magistrate gave reasons for his decision on 29 November 2024 (Reasons) and pithily described the claims as numerous and the reasons why those claims ought to be struck out or summarily dismissed as even more numerous.2 With respect, his Honour's description and decisions were entirely correct. 2 Magistrates Court decision dated 29 November 2024 (Reasons) [3]. -- 6 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 7 13 There was no basis for any of the claims against any of the respondents, in that there was: • no contract; • no representations; and no misleading or deceptive conduct; • no unconscionable conduct; • no negligence; • no unjust enrichment; or • no breach of fiduciary duty; by any of the respondents and furthermore there was no basis for a claim against the former council member by reason of a statutory protection. 14 There was similarly no basis to Magnalaw's later allegations of an abuse of process or for a detail as to how the respondents were paying their legal fees or for injunctive relief, or in the allegation of a conflict of interest or in the application for additional witness summons. Each issue was comprehensively dealt with by the magistrate.3 15 Magnalaw appealed against the Reasons on a number of separate grounds as recorded in: (a) an amended appeal notice dated 25 March 2025; and (b) an appeal book filed on 22 May 2025. 16 The appeal book notice contains grounds not raised in the amended appeal notice and set the grounds of appeal differently. I have sought to address each complaint in these reasons. When the respondents' solicitors, not unreasonably, sought advice as to when these reasons might be delivered, Dr Zaghloul provided further correspondence to the court. I have not read Dr Zaghloul's further correspondence or any later submission attached. 17 Dr Zaghloul described Magnalaw as his company.4 Dr Zaghloul asserted that he had some legal qualification but was not a legal practitioner. The principles as to self-represented persons apply in this appeal.5 3 Reasons [119] - [132]. 4 Appeal hearing ts 41. 5 Milentis v Howard I Evans as Executor of the Estate of Demetrius Mitskinis [2018] WADC 106 [11] - [12] (Milentis). -- 7 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 8 18 Dr Zaghloul, in all respects, represents Magnalaw in these proceedings. He is entitled to some leniency in relation to the presentation of the grounds of appeal. I must approach the documents in which Dr Zaghloul expresses his claim with some flexibility.6 19 In dealing with this appeal, I must be astute to ensure that in a poorly expressed or unstructured document in which Dr Zaghloul sets out his appeal there is no viable case which, with appropriate amendment or permissible assistance from a court, could be put into a proper form.7 Appeal from Magistrates Court 20 An appeal from the Magistrates Court is by way of a 'reconsideration of the evidence' before the Magistrates Court and is therefore an appeal in the nature of a rehearing. 21 The court has a discretion to grant leave to admit additional evidence. However, leave may only be given in 'exceptional circumstances'. 22 To succeed on an appeal, the applicant must demonstrate a legal, factual or discretionary error by the magistrate. Where an appellant appeals against findings of fact, they must do more than merely show that an alternate finding was available on the facts. They must show that a factual error was made by the primary judge. 23 If upon the facts a decision is found to be unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the magistrate.8 24 Dr Zaghloul has failed to demonstrate in any of his grounds of appeal, written or oral submissions, any legal, factual or discretionary error by the magistrate and this appeal must be dismissed. Overview 25 Dr Zaghloul in submissions asserted that the owners voted unanimously for replacement of the lift and that he also voted for replacement of the lift.9 6 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536. 7 Crawford v WA Police [2026] WASC 28 [31]. 8 Milentis [6] - [10]. 9 Appeal hearing ts 42. -- 8 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 9 26 Magnalaw filed four grounds of appeal in the appeal book, and two in the earlier amended notice. They were: (a) jurisdictional error; and (b) a denial of a procedural fairness. 27 The appeal book contained four grounds: (a) jurisdictional errors in fact-finding; (b) a reasonable apprehension of bias by denial of procedural fairness; (c) a loss of defining characteristics of a chapter III court; and (d) impact of the nature of the costs agreement. 28 The grounds of appeal in both the amended appeal notice and the appeal book were heavily particularised. 29 To summarise the grounds, I have dealt with the issues alleged on the basis that the appeal asserts errors by the learned magistrate as follows: (a) that the magistrate either lacked the power or erred in striking out Magnalaw's claim pursuant to s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) in that it was not open to find: (i) the claim did not disclose any reasonable grounds for any claim; (ii) the purpose of Magnalaw's claim was to harass or annoy or was otherwise wrongful; and (b) that the magistrate either lacked power or erred in giving judgment against Magnalaw, pursuant to s 18 of the Act, because it was not open to the magistrate to not be satisfied that the claim had a reasonable prospect of succeeding. 30 And the magistrate made errors in finding: (a) Magnalaw suffered no loss; and -- 9 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 10 (b) in permitting Magnalaw's claim to be in the General Procedure, as opposed to being heard as a minor case claim, and in allowing the respondents to be separately legally represented - which itself demonstrated a lack of procedural fairness, and as such represented a breach of the provisions of s 13 of the Act in that the Act mandated that the parties are to be on an equal footing. 31 And made further errors in finding there was no triable issue: (a) that there was no contract between Magnalaw and the maintenance contractor or the former strata manager; (b) insofar as an exception to the rule of privity, if Magnalaw was not in a contractual relationship, such that Magnalaw had the benefit of the contract; (c) as to Magnalaw and its standing to commence proceedings in its own right under the provisions of the Strata Titles Act 1985 (WA) (Strata Act); (d) whether s 141 of the Strata Act precluded Magnalaw from proceeding with a claim against the former council member; (e) that the respondents did not engage in misleading or deceptive conduct or misrepresentation in the discussions preceding the meeting by the council of owners as the operation of the lift and its capacity to be reconditioned; and (f) that the respondents did not engage in unconscionable conduct. 32 And made errors in finding: (a) Magnalaw's claim was wrongful; and (b) in not allowing a claim for negligence to be maintained. 33 And further the magistrate's decision was contrary to law in that: (a) it was affected by bias; (b) the proceedings before the magistrate were such that the court lacked the defining characteristics of a chapter III court; and -- 10 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 11 (c) Magnalaw was denied procedural fairness, as demonstrated by the respondents' separate legal representation and as such represented a breach of the provisions of s 13 in that the Act mandated that the parties are to be on an equal footing and that by permitting the respondents to be separately represented this amounted to a lack of procedural fairness to Magnalaw. 34 The principal complaint, however described, was that the magistrate erred in determining that Magnalaw's various claims ought be summarily discharged. 35 Dr Zaghloul contended that if there were a legal dispute, then that was a legal question which could not be summarily discharged.10 36 Section 17 of the Act allows a court to strike out a statement of claim if:11 (a) it does not disclose any reasonable grounds for any actions; (b) its purpose is to harass or annoy; (c) it is an abuse of the court's process; (d) it is frivolous, vexatious or improper; and (e) if the court strikes out all of a case, the court may give judgment without a trial. 37 The burden rests on an applicant, pursuant to s 17 of the Act to demonstrate that the court should use the powers conferred by that provision. 38 Section 18 of the Act empowers a court to give judgment against a claim without trial if the party making the claim does not satisfy the court that the claim has a reasonable prospect of succeeding. 39 The onus was on Magnalaw to demonstrate that the claims, in each instance, had a reasonable prospect of success. 40 The number of disputes were not a relevant consideration and the fact that there were disputes of itself does not demonstrate that a claim had a reasonable prospect of succeeding. 10 Appeal hearing ts 43. 11 The Act, s 17(1)(b) - s 17(1)(d) and s 17(2). -- 11 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 12 41 In submissions Dr Zaghloul contended that essentially the sole issue was whether there was an issue for trial or not and whether there were any disputes in fact or law that justified the legal reasoning to justify the strike out or whether there were questions of fact or law that needed to be ventilated in a trial.12 42 According to Dr Zaghloul there was a question of fact and law arising in relation to each claim and on the basis of the authority in General Steel Industries Inc v Commissioner for Railways13 it was not open to the magistrate to dismiss the claims. 43 The submission extended to incorporate a submission that as a self-represented person Magnalaw may not have identified the issues as clearly as a court might and therefore the magistrate had an obligation to either do so or to allow their claim to proceed.14 There was no basis for this submission. The magistrate carefully considered Magnalaw's claims. 44 Dr Zaghloul submitted that there were 41 claims that demonstrated Magnalaw raised genuine disputes of fact and law that require judicial determination.15 There was no basis to this submission. Simply because a respondent denies an allegation does not mean that there is a genuine dispute of fact and law requiring judicial determination through a trial. 45 The learned magistrate correctly identified the legal principles16 and I accept the submissions made by Mr Sadler, on behalf of the maintenance contractor, that the test in the Act did not require that there were no law or facts in dispute but rather what was required was the court had to be satisfied that there was a high degree of certainty as to the outcome of the proceedings if they were going to trial.17 On all of the available material the only outcome if Magnalaw's claims proceeded to trial would have been that they would be dismissed. 46 Magnalaw contended, in essence, that the magistrate acted on a wrong principle or allowed extraneous or irrelevant matters to guide or affect him, or made a mistake as to the facts and did not take into account some material consideration. Essentially, an error in the exercise of the discretion as contemplated in House v The King.18 12 Appeal hearing ts 75, ts 76, ts 77. 13 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 (General Steel). 14 Appeal hearing ts 57. 15 Appeal hearing ts 67. 16 Reasons [13] - [23]. 17 Appeal hearing ts 89. 18 House v The King [1936] HCA 40. -- 12 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 13 47 There is no basis for the submission. 48 The learned magistrate made a number of observations.19 They are: (a) This is not a claim by the council of owners. This is a claim by one member of the council of owners. Furthermore, as mentioned Dr Zaghloul (on behalf of the Claimant) abstained at the meeting. (b) There is no question that the lift was commissioned in 1981 and is around 43 years old. (c) There is also no question that the lift equipment at 16 Mill Point Road was manufactured by Grant Elevators. (d) Grant Elevators is a privately-owned Australian company with over half a century of experience in the design, manufacture, installation and maintenance of lifts. 49 There is no evidence or reasonable assertion capable of being sustained which resists those observations. 50 The magistrate set out the procedural history of the claim before the Magistrates Court.20 This recital is entirely consistent with the record of proceedings. No loss 51 In the claim before the magistrate the relief was as set out in the Reasons:21 40 The relief he seeks is described as follows: 125. Compensation for financial losses - incurred due to misrepresentation, unconscionable conduct, and breach of contract - to the claimant for being out of pocket by 6.1% share of $187,750 for the new lift. 126. Damages for inconvenience and accomodation [sic] expenses (or loss of income) for having no lift for 4 months (January to April 2025) for major noise and being unable to take the stairs for a very long term. 127. Legal costs associated with bringing this claim. 19 Reasons [33(a)] - [33(d)]. 20 Reasons [35] - [39]. 21 Reasons [40]. -- 13 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 14 128. Aggravated damages against each defendant. 129. Exemplary damages against each defendant. (emphasis added) (footnote omitted) 52 The magistrate found that no work had been carried out on the lift. There is nothing to contradict the magistrate's finding that none of the alleged losses had been incurred but were at best potential. 53 In the circumstances, there was no basis for any finding other than that which the magistrate made.22 Namely, that no cause of action had accrued at that point. 54 There was no evidence produced at the hearing of the application, that work had been done or any costs incurred with respect to replacing the lift. 55 Magnalaw claimed that the magistrate's finding that it suffered no loss was not sustainable in circumstances where Schindler was to charge an amount of $187,500 to replace the lift and Magnalaw's liability, based on the unit entitlement of a 6.1% share, meant that Magnalaw ended up paying costs to represent that amount.23 56 There was no merit in this submission. The council of owners voted to replace the lift. The replacement of the lift if it occurred, would occasion a cost. A cost, which if incurred, would return a benefit. Such is commerce. The costs of the replacement if it took place were to be divided amongst the strata title owners proportionately. 57 Whether Magnalaw voted for Schindler to replace the lift and abstained from the vote for the maintenance contractor to replace the lift did not inform the magistrate's finding that Magnalaw suffered no loss. The fact that Magnalaw was obliged to pay for the replacement of the lift following the decision of the strata company to replace the lift and if the lift were replaced does not mean that Magnalaw sustained a loss. 58 Dr Zaghloul complained that he did vote. His vote was for Schindler to replace the lift, Schindler being one of the two candidates put forward by the lift consultant. His position was that he abstained on the vote for the lift to be replaced. 22 Reasons [42]. 23 Appeal hearing ts 48. -- 14 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 15 59 On the available evidence however Magnalaw voted, or did not vote, each resolution would have carried by a significant majority. Magnalaw still would have been obliged to make a contribution to the replacement of the lift. In his submissions Dr Zaghloul focussed on what he alleged was an error on the part of the magistrate in identifying the wrong resolution for which Magnalaw abstained. Even if there were an error it was of no effect in the magistrate's reasoning. Dr Zaghloul would not meaningfully engage with the practical consequence of Magnalaw either abstaining or voting against the resolution that Schindler replace the lift.24 60 In the Reasons,25 his Honour identified: The Claimant's central assertion is that the Claimant is allegedly likely to suffer loss and damage following a resolution that was reached by the Claimant's fellow strata owners approving the replacement of the 43-year-old lift in the subject property namely 16 Mill Point Road, South Perth (Property). 61 The issue of the passage and resolution by Magnalaw's fellow strata owners as to the replacement of the lift was the subject of considerable focus by Magnalaw in its submissions. The magistrate found that Magnalaw abstained from voting. 62 The finding was open to the magistrate on the available evidence. In any event there was no evidence to suggest or demonstrate that had Magnalaw voted against the resolution to replace the lift then it would not have passed. As such the finding complained against was of no practical importance in the decision to dismiss Magnalaw's claims. Separate representation and minor claims complaints 63 Magnalaw complained the respondents were separately represented by four law firms in which Dr Zaghloul described as a minor claim.26 64 The description of the claim as being a minor claim was disingenuous in circumstances where Magnalaw claimed an amount of compensation against the respondents for over $10,000. 24 See Appeal hearing ts 47 - ts 52 in which Dr Zaghloul would not grapple with the issue of what the outcome of the Schindler resolution would have been had he either abstained or voted against the resolution. 25 Reasons [4]. 26 Appeal hearing ts 43. -- 15 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 16 65 Furthermore, Dr Zaghloul's decision to include the claims under the Corporations Act 2001 (Cth) meant the proceedings could only be heard in the general procedure. 66 The proceedings were not a minor claim. By reason of the way that Dr Zaghloul presented the proceedings they were a general procedure claim. There is no basis for reading s 13 of the Act as to require equality in the sense that a magistrate is obliged to prevent a party to proceedings from being separately represented in those proceedings. 67 As a matter of fact, the magistrate extended every courtesy and reasonable assistance to Dr Zaghloul in order that he might best advance Magnalaw's various positions. 68 Dr Zaghloul's emphasis on the cost of these proceedings surfaced in submissions where:27 I was claiming 6.1 per cent of $187,500. That's all I was claiming. That's less than $10,000. That's minor claims. No need for lawyers, no need for very sophisticated arguments and strike out, and $40,000. Now it's going to be around $100,000, essentially, for a claim for specific performance, around six and a half thousand dollars. Less than $10,000. So that's the third part that is appealable, that there was a specific parliament requirement to have equal arms between the parties, on equal footings. 69 This submission was made in the course of Dr Zaghloul's complaint that the magistrate decided that his claim would be a general procedure claim and that the magistrate acted contrary to law by allowing the respondents to be separately represented. 70 There is no basis in the appeal for a complaint that the magistrate erred in allowing the parties to be separately represented. The transmission of the claim from the minor claims to the general procedure was as a result of decisions made by Dr Zaghloul to increase the ambit of his claim. In any event, 6.1% of $187,500, even if that were the extent of Dr Zaghloul's claim, exceeds $10,000 and the threshold for a minor claim. 71 Dr Zaghloul contended that the claim was a minor claim for specific performance. That submission failed to grapple with the fact that as the claim proceeded, it extended. It was not, when determined 27 Appeal hearing ts 54 - ts 55. -- 16 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 17 by the magistrate, a minor claim for specific performance.28 It was no longer a minor claim because of deliberate decisions made by Dr Zaghloul.29 72 Dr Zaghloul complained about the parties' separate legal representation. The nature of his claim was such that it exceeded the minor cases claim. The magistrate was correct to conclude it was appropriate that the claim remain in the general division. 73 The magistrate provided Reasons for the transmogrification, to adopt the description by counsel for the former strata manager.30 74 These Reasons appear entirely consistent with the manner in which Dr Zaghloul presented the case. Breach of contract and the privity exception 75 Dr Zaghloul complained that, insofar as the triable issue with regard to the breach of contract claim went, the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd31 identified that there was a third-party exception to the privity of contract.32 76 Dr Zaghloul submitted, with respect, accurately, that it was not for me to determine whether there was an exception but rather it was whether the issue required a trial. 77 Trident has no application to the circumstances of this case. Trident concerned an insurance contract. There was a clear intention to provide benefits for a stranger to that contract. It has no relevance to this case. 78 At no point did Dr Zaghloul, in the proceedings before the magistrate, submit that the exceptions to the privity rule applied. I accept counsel for the former strata manager's submission that the magistrate was entitled to deal with the claim as put before him.33 28 See submissions at Appeal hearing ts 58. 29 Reasons [35], [39]. 30 Reasons [36] and [37]. 31 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 (Trident). 32 Appeal hearing ts 45. 33 Appeal hearing ts 115. -- 17 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 18 79 According to Dr Zaghloul the third-party exception was for a contract policy that the person who benefited from it did not pay and that it should be obvious that the contract which Magnalaw was paying for had a third-party exception to the privity.34 80 According to Dr Zaghloul, by reason of Magnalaw paying through strata levies the cost to maintain the lift, Magnalaw became the beneficiary of the contract. And while the contract was between the strata company and the maintenance contractor there was a triable issue as to that which could not be resolved by way of summary judgment. According to Dr Zaghloul, the misleading advice claims in negligence and the unconscionable conduct claims were for similar reasons not capable of being dismissed summarily.35 81 Trident is an authority for a proposition that courts will recognise the existence of a trust when it appears from the language of the parties, construed in its context, including the matrix of circumstances that the parties so intended. 82 What is required is for the court to look to the nature of the transaction and the circumstances including commercial necessity in order to infer or impute intention.36 83 In this case the maintenance contractor contracted with a strata company. The former strata manager managed, amongst other things, that contract. Necessarily the former strata manager represented various interests. Magnalaw was one of those. There was nothing in the evidence before the learned magistrate which suggested there was a triable issue arising from an inference or imputation of an intention to create a trust in favour of Magnalaw, even if Magnalaw were paying strata levies. 84 If anything, the entire purpose of a strata company managing the various interests is to prevent the risk of a chaos agent, such as presented by Dr Zaghloul through Magnalaw, from otherwise derailing the orderly governance of property jointly owned and managed. There was no basis for an intention to be imputed that the former strata manager hold the maintenance contractor's contractual obligations on trust for Magnalaw. Magnalaw's interests were not to be afforded a special privilege or preference over those of the other strata holders. 34 Appeal hearing ts 45. 35 Appeal hearing ts 45. 36 See Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6 [10]. -- 18 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 19 85 The fact that s 103 of the Strata Act provides in some circumstances that if a judgment were given against a strata company in proceedings then it has effect as if it were a judgment against the owners37 is not a basis for there being an arguable claim that there was an exception to privity of contract. 86 There is no basis on which it could reasonably be contended that there was an exception open in this case. 87 Additionally, the submissions directed towards the application of BP Refinery (Westernport) Pty Ltd v Hastings Shire Council38 are misconceived. There must be a contract before a term might be implied. In this case there was no contract between Magnalaw and any of the respondents. There was no basis, even if there were a contract, for the implication of a term. 88 The magistrate found that there was no contract between Magnalaw and any of the respondents. There was no other finding open to the magistrate on the basis of the available evidence before him. 89 The argument as to the implication of contractual terms were not raised before the magistrate. They are not a permissible ground of appeal. In any event, there was no basis for an implication of a term to allow Magnalaw to enforce obligations said to be owed but not enforced by the strata company. 90 The obvious unworkability of the implication of the term was highlighted in the maintenance contractor's submissions.39 Strata Titles Act 1985 (WA) 91 Dr Zaghloul's contention was that the questions put or posed by his claim as to the interpretation of the Strata Act and the number of issues prevented the claims from being summarily dismissed on a proper application of the principle in General Steel. 92 There was no basis for this contention. 37 Strata Act, s 103(1). 38 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; Appeal hearing ts 45 and ts 46. 39 See first respondent's outline of written submissions, par 14.3. -- 19 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 20 93 The fact that the claim included a denial that s 141 of the Strata Act applied to afford a protection to the former council member, and that it asserted Magnalaw could bring proceedings in its own right, does not mean that there was a question of law that required adjudication by a court. No substantial and novel question of law arose on the facts alleged which rendered summary determination inappropriate. There was simply no basis on which either claim by Magnalaw could succeed. Derivative action 94 Insofar as Magnalaw's complaint that it had a right to bring a derivative action pursuant to s 91(3) of the Strata Act, this was not a matter which was raised before the magistrate. It cannot be the subject of an appeal. 95 Dr Zaghloul referred to s 91(3) and s 103(2) of the Strata Act. I accept the maintenance contractor's submissions that this argument was not raised before the magistrate and is therefore not a permissible ground of appeal. 96 I am positively satisfied that Magnalaw did not have a standing to bring any proceeding pursuant to any provision in the Strata Act. 97 There is nothing in either s 91(3) or s 103(2) of the Strata Act which affords a basis for concluding that Magnalaw had a standing to commence proceedings against any of the respondents in this matter. 98 In Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah,40 Pritchard J considered an application for an expedited proceeding of an action together with interlocutory injunctive relief. 99 The application involved a proprietor of a lot of strata property. 100 The applicant was the defendant in other proceedings in which a company engaged by the strata company to act as a strata manager and an employee of the company had instituted defamation proceedings against the lot owner. 101 The lot owner sought relief to prevent legal fees incurred by the strata manager and employee from being paid out of the funds of the strata company. 40 Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 (Aikman). -- 20 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 21 102 In the course of the application for relief, the lot owner contended that she had standing to bring the action at common law pursuant to the exceptions to the rule in Foss v Harbottle.41 103 The lot owner alleged the conduct she complained of was beyond the power of the strata company, that it constituted a fraud on the minority and wrongdoers were in control. Her case was that she brought the action bona fide in the interests of all the proprietors; that there was no other remedy available and that a serious injustice would arise if she were precluded from pursuing the action. The lot owner asserted that she brought the action in the interests of all the proprietors. 104 Her Honour did not positively conclude that the lot owner had standing to bring the action. Her Honour considered the lot owner faced not insignificant difficulties in establishing that she had standing to pursue causes of action that the strata company would ordinarily be entitled to pursue. 105 An aspect of the lot owner's claim was that the defendants stood in a fiduciary relationship. 106 Her Honour considered this claim to be novel42 and that significant hurdles appeared to stand in the way of the lot owner establishing that fiduciary relationships existed noting that 'equity will not import a fiduciary relationship where the fiduciary will inevitably be in a position of potential conflict between its own interests, or the interests of other parties which it serves, and the interests of the beneficiary'.43 107 This is the case here. The fiduciary relationship asserted by Magnalaw, namely, to bring its own proceeding, stands potentially in conflict with the interests of the other parties that the respondents serve, namely, to accept and act on the vote of the lot holders. 108 Insofar as fiduciary duties went, her Honour considered that a fiduciary relationship between two parties is usually identified as one which is characterised by a duty, and corresponding expectation, of loyalty from one party (the fiduciary) towards the other (the beneficiary).44 41 Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461; (1843) 67 ER 189 (Foss); Aikman [46]. 42 Aikman [99]. 43 Aikman [122]. 44 Aikman [100]. -- 21 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 22 109 Her Honour further found:45 The circumstances which may point towards a fiduciary relationship include the existence of a relationship of confidence, inequality of bargaining power, the scope for one party unilaterally to exercise a discretion or power which may affect the rights or interests of the other, and a dependence or vulnerability on the part of one party that causes that party to rely on another. None of these circumstances or criteria is individually determinative of the existence of a fiduciary duty. However, one critical feature which must be present is that the fiduciary undertakes or agrees to act for, or on behalf of, another person, in the interests of that other person, in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense, and to the exclusion of the fiduciary's own interest. (footnotes omitted) 110 Pritchard J did not determine whether or not the lot owner had standing to bring the action. Her Honour noted that the application appeared to be derivative in nature and considered that the prospects of establishing that she had standing were at best fair.46 111 The rule in Foss has been described as being that the proper plaintiff in an action in respect of a wrong alleged to have been done to a company or an association of persons is on the face of it the company or the association. Further, where the alleged wrong is a transaction which might be made binding on the company or the association by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the reason that if a majority of the members of the company or association are in favour of what is being done, then the matter is resolved. No wrong has been done to the company or association and there is nothing in respect of which anyone can sue for.47 112 In this case the council of owners voted to replace the lift. This fact alone demonstrates the fallacy of Magnalaw's claim. 113 Her Honour noted that there was no Western Australian authority which suggested that the rule in Foss applied to strata companies established pursuant to the Strata Act.48 Her Honour noted that there was authority from other jurisdictions in respect of proprietors' corporations established under similar strata titles legislation, 45 Aikman [101]. 46 Aikman [130]. 47 Smolarek v Liwszyc [2006] WASCA 50 [40]. 48 Aikman [137]. -- 22 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 23 which was to the effect that the rule in Foss applied to bodies corporate.49 Her Honour noted that there was authority which cast doubt on the proposition that an action by a proprietor for a breach of fiduciary duties owed to a strata company could be said to fall within the exception of the rule in Foss. 114 The New South Wales Supreme Court considered the application of the rule in Foss to proprietors' corporations established under the Strata Titles legislation in that State. In the decision of Eastmark Holdings Pty Ltd v Kabraji,50 Darke J considered the issue of standing and considered that the applicant in that case had standing to bring the proceedings which concerned the enforcement of rights of the owners' corporation.51 In that decision Darke J considered that there were four matters which, while not factors, had to be invariably established before a plaintiff could invoke the interests of justice exception to the rule in Foss might be made out:52 However, the four matters are each plainly relevant to the question whether the exception applies in any particular case, and the failure of a plaintiff to establish any one of them will generally indicate that the exception is not applicable. … 115 Amongst the four matters were the necessity to establish that the action was brought bona fide in the interests of the owners' corporation and not for an ulterior purpose.53 It can been seen in the original decision that his Honour found that Dr Zaghloul and Magnalaw's purpose in the proceedings was wrongful.54 His Honour was entirely justified in making that finding. As such it is apparent that on no view could the exception to the rule in Foss apply to allow Magnalaw to bring a proceeding. 116 In the proceedings before the magistrate there was no basis for a finding that a wrong had been done to, or by, any of the respondents. 117 There were no special circumstances that enabled Magnalaw to commence proceedings against the maintenance contractor for breach of contract. 49 Aikman [137]. 50 Eastmark Holdings Pty Ltd v Kabraji [2013] NSWSC 1763 (Eastmark). 51 Eastmark [78]. 52 Eastmark [78] - [81], [89]. 53 Eastmark [79] and [89]. 54 Reasons [5(o)] - [5(q)]. -- 23 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 24 Section 141 of the Strata Titles Act 1985 (WA) 118 Dr Zaghloul contended it was not open to the magistrate to summarily dismiss the case against the council member on the basis that s 141 of the Strata Act did not apply, even if it were the case that Magnalaw bore the responsibility of demonstrating an absence of good faith on the part of the council member's decision.55 119 According to Dr Zaghloul the fact that the statement of claim alleged that there was no good faith on the part of the council member obliged the council member to dispute it and as such there is a triable issue.56 This is wrong. There were no facts asserted to demonstrate the claim had reasonable grounds or a reasonable prospect of succeeding. 120 As against the former council member, Magnalaw contended the magistrate erred in finding s 141 of the Strata Act applied. 121 Section 141 of the Strata Act applies to persons who are or have been a member of the council of a strata company. 122 Section 141(2) of the Strata Act provides that no civil liability applies for anything done by the person, or omitted to be done, in the performance of a function under the Act or in the reasonable belief that the act or omission was done in performance of the Act or scheme by-laws. 123 A qualification for the application of the immunity is that the act or omission was done in good faith. 124 The magistrate found:57 The Council Member was a member of the Council when the alleged conduct and or representations are said to have occurred. I am satisfied that pursuant to the provisions set out above the Claimant has no claim against the Council Member. 125 The council member swore an affidavit in support of the application seeking orders to strike out the claimant's case statement. In pars 10 - 14 of the affidavit,58 the council member asserted that he had acted in good faith in the performance of all of his functions. 55 Appeal hearing ts 56. 56 Appeal hearing ts 57. 57 Reasons [93]. 58 Appeal Book, page 541. -- 24 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 25 126 There was no evidence to the contrary and no evidence to suggest that the council member had not acted in good faith. Furthermore, there has been no demonstration in this appeal that the magistrate made a factual error and the conclusion reached by the magistrate that the provisions of s 141 of the Act applied so that there was no claim against the council member was the only conclusion open on the evidence. 127 The decision did not amount to a jurisdictional error. 128 The obligation to demonstrate that the provision did not apply, such that the magistrate could not be satisfied that there was a high degree of certainty as to the outcome of the proceedings if they were to go at trial against the office holder, rested with Magnalaw. 129 On the face of it, the protection afforded by the provision applied and there was nothing to suggest that the immunity conferred did not apply. The decision that the immunity applied did not amount to a positive decision that the office holder had acted in good faith. It did not require a positive decision. 130 I accept the council member's submission that the magistrate's power was not conditioned upon a finding of good faith.59 131 The fact to be adjudicated on was whether the qualification for the application of the immunity had been enlivened. On the face of it the immunity applied and no civil liability could apply for anything done by the council member. As such the decision concerned a fact to be adjudicated upon in the course of the enquiry.60 The enquiry being whether it was so obvious that it would be futile to allow the action to proceed.61 132 The decision as to the application or otherwise of s 141 of the Strata Act was within the magistrate's jurisdiction. 133 Furthermore, there was no error of law by way of any misapplication of legal principle. There was no demonstrated error of fact by the magistrate. The magistrate had the affidavit of the office holder before him. The decision was entirely open and Magnalaw has not demonstrated a legal, factual or discretionary error. 59 Third respondent's outline of submissions, par 24. 60 See Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468 [39]. 61 General Steel (129) - (130) (Barwick CJ). -- 25 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 26 Jurisdictional fact 134 In Forrest & Forrest Pty Ltd v O'Sullivan,62 Justice Tottle identified that there was no decisive rule or ranking of relevant factors insofar as the need for compliance with the statutory condition to enliven the power of a decision-maker to make a decision. 135 His Honour identified a number of propositions which are derived from the authorities namely:63 Even though there is no decisive rule, nor a ranking of relevant factors and, of course, every case turns on the statutory regime and the particular language used, the following propositions, which overlap in their expression and application, may be derived from the authorities: (a) If the condition regulates the exercise of functions already conferred on the decision-maker, that is, if it concerns a fact to be adjudicated upon in the course of the inquiry, rather than imposing essential preliminaries to the exercise of the functions it is less likely to be a jurisdictional fact. (b) If the condition has a 'rule like quality' which can be easily identified and applied it is more likely to be jurisdictional. Conversely, if the condition involves a consideration of matters of policy in respect of which there is room for widely differing opinions it is less likely to be jurisdictional. (c) If determining whether there has been compliance with a condition involves issues of fact and degree it will often, but not always, be the case that these are matters for the decision maker to determine within jurisdiction. In each case the overall statutory context is determinative as to whether or not the legislature intended the existence of the fact to both objectively exist and be essential notwithstanding the element of fact and degree and even judgment, that was required in the process of determining whether or not the relevant fact existed. (d) If a condition is expressed in 'indeterminate language' that might convey that obligations imposed are goals to be achieved as opposed to rules to be obeyed it is less likely to be jurisdictional. (e) Similarly, that a condition calls for the exercise of broad judgment on a matter of potentially significant disputation suggests that it is less likely that the legislature intended it to be an objective fact because of the capacity for reasonable minds to differ. 62 Forrest & Forrest Pty Ltd v O'Sullivan [39]. 63 Forrest & Forrest Pty Ltd v O'Sullivan [39]. -- 26 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 27 (f) A condition containing a factual reference involving the mental state of the primary decision-maker - 'opinion', 'belief', 'satisfaction' - is less likely to condition the exercise of jurisdiction, other than that the existence of the mental state is a particular kind of jurisdictional fact. (g) If a factual matter plays a critical role in the decision-making process it is more likely to be construed as jurisdictional. (h) If the invalidity would result in public inconvenience it is unlikely that a condition will be regarded as jurisdictional. 136 Section 141 of the Strata Act provides a protection from liability to a member of the council of a strata company in circumstances where an individual is authorised under s 136(2) of the Strata Act to perform, on its behalf, a function conferred under the Strata Act on the corporation as an officer of the strata company or as a member of the council. Section 141 provides that no civil liability attaches to a person to whom the section applies for anything that the person has, in good faith, done or omitted to be done in the performance of a function under the Strata Act or in the reasonable belief that the act or omission was in the performance of a function under the Strata Act. It further provides that a liability that would but for the provisions in s 141, attach to a person attaches instead to the strata company. 137 I accept counsel for the former strata manager's submission that what was required by the learned magistrate was an authority to decide pursuant to s 17, s 18 or s 19 of the Act. These provisions provided the authority. 138 There was no issue of jurisdictional fact and no form of jurisdictional error. Magnalaw failed to demonstrate that the magistrate made a legal, factual or discretionary error. Misrepresentation, misleading and deceptive conduct 139 There was no evidence to contradict the findings that the learned magistrate made.64 On all of the available evidence the lift was old and needed replacement. 140 Dr Zaghloul pressed the issue of obsolescence and whether his claim that there were spare parts available rendered a basis for there being a dispute namely arising from what he claimed to be a misrepresentation.65 64 Reasons [54]. 65 Appeal hearing ts 68. -- 27 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 28 141 Not only was there no reliance but there is no basis for a dispute and no demonstration of an error on the part of the magistrate. 142 The magistrate considered Magnalaw's claim against the maintenance contractor for misleading and deceptive conduct or misrepresentation.66 143 There is no legal, factual or discretionary error demonstrated. In fact, the only findings open on the evidence were those as made by the learned magistrate.67 144 I accept the maintenance contractor's submissions insofar as 'the contractual representations'. There was no evidence before the magistrate to rebut the maintenance contractor's evidence that the lift was regularly maintained and serviced.68 145 Furthermore, I accept the maintenance contractor's submissions with regard to the second category of alleged representations, namely 'the replacement representations' is that there was no particularisation before the magistrate as to how the replacement representations were made to anyone other than Dr Zaghloul. Furthermore, the absence of any evidence of the replacement representations being made to anyone other than Dr Zaghloul meant that there was as a matter of fact no causal connection between the replacement representations and the loss claimed to have been suffered by Magnalaw. 146 The misleading and deceptive conduct claim is not viable in circumstances where there was no evidence before the magistrate to rebut the evidence that the lift was regularly maintained and serviced and where there was no evidence that the replacement representations, so called, were made to anyone other than Dr Zaghloul and where the decision to replace the lift was made by the council of owners whatever the voting position of Magnalaw might have been. 147 Further, I accept the maintenance contractor's submissions with regard to the failure of Magnalaw to demonstrate any error on the part of the magistrate insofar as considering the definition of obsolescence goes. 66 He expressed his finding at Reasons [54]. 67 Reasons [54]. 68 First respondent's outline of written submissions, par 19. -- 28 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 29 148 The replacement representations, to the extent that they included any representation as to obsolescence were, I accept, in having regard to par 21 of the maintenance contractor's submissions, reasonably held statements of opinion.69 The learned magistrate carefully set out the findings he made with regard to the state of the lift.70 149 I accept the contemporaneous assessment of the lift established as recited by the maintenance contractor:71 21.1 the lift was installed in 1981: Ferguson, 'GCF-4', p. 24; 21.2 parts required for the repair of the car and landing door equipment were in 'limited supply': Ferguson, 'GCF-4', p 25; 21.3 the lift was subject to 'obsolescence issues' and attempting to engineer other replacement parts to work with the extant lift would be as expensive as purchasing a new lift: Ferguson, 'GCF-4', p. 24-25, 28; 21.4 planning an upgrade was 'highly recommended': Ferguson, 'GCF-4', p.32; and 21.5 as the original manufacturer of the lift, Grant Elevators, advised on 26 June 2024 that it 'no longer manufacture[s] the components, parts or accessories and are recommending a complete replacement': Ferguson, 'GCF-9', p. 58. 150 I accept the maintenance contractor's submissions that, in those circumstances, the definition of the term 'obsolescence' had no bearing upon the misleading or deceptive conduct claim. On the basis of the available evidence, the magistrate was entitled to make the findings that he did namely:72 54. Firstly, as mentioned earlier, the uncontroverted evidence is that the manufacturer: (a) no longer manufactures the components, parts or accessories. (b) recommended a complete replacement of the lift with the latest and updated equipment; (c) confirmed that the electro-mechanical locks that currently exist are no longer available; and (d) confirmed that the doors on the lift are obsolete. 69 Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242 [250]. 70 Reasons [102] - [104]. 71 First respondent's outline of written submissions, par 21. 72 Reasons [54] and again at [104]. -- 29 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 30 151 Any statements made by the respondents (including from the maintenance contractor and lift consultant) consistent with those findings, were accurate. Magnalaw adduced no evidence (other than mere assertion) to refute the evidence relied on by the magistrate. 152 I accept that the maintenance contractor's submissions that in the circumstances the term obsolescence under the contract had no bearing upon the misleading or deceptive conduct claim. 153 The magistrate acted on the basis of the available evidence before him. Magnalaw has not demonstrated any error. 154 Insofar as the claim of misrepresentation against the former strata manager goes, Magnalaw has failed to demonstrate a legal, factual or discretionary error. 155 The strata manager by email of 4 December 2023 said: All owners my advice to you is to go out and get your own information on whether the lift requires a replacement or just change some parts. From my experience and considering the age of the lift (40 years old) a new lift should be considered. 156 The magistrate found this statement to be accurate. There was no basis for asserting it was a misrepresentation. Furthermore, it was open to the magistrate to make a finding that Dr Zaghloul abstained from a voting. As such he could not have been moved by the representation. 157 Magnalaw has not demonstrated a legal, factual or discretionary error insofar as the magistrate's findings that the statements as set out in the lift consultant's report were correct.73 158 On the available evidence as before the magistrate, this was the only conclusion open to him. I accept the submissions made on behalf of the lift consultant that any statements made by the consultant were plainly correct.74 It was open to the magistrate to accept, as he did, the lift consultant's report.75 73 Reasons [105]. 74 Appeal hearing ts 124. 75 Grant Elevators report 26 June 2024 in which the manufacturer reinforced the conclusion reached by the lift consultant. -- 30 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 31 159 Furthermore, as explained,76 there was no evidence that Magnalaw relied on the lift consultant's alleged representation, and the fact was that the decision to replace the lift was made by the council of owners and not Magnalaw who, in the person of Dr Zaghloul, abstained from voting. 160 I accept the submissions made that obsolescence as defined in the platinum contract meant materials that were no longer manufactured and no longer commercially available. 161 I accept that the letter from the original manufacturer, Grant Elevators, sat squarely within the definition, as submitted by counsel for the lift consultant,77 and as such Magnalaw cannot demonstrate that the magistrate made an error of either a legal, factual or discretionary nature. Unconscionable conduct claim 162 Section 21 of the Australian Consumer Law prohibits a person in trade or commerce in connection with the supply of goods or services to a person to engage in conduct which is in all the circumstances unconscionable. 163 The learned magistrate found78 that Magnalaw's allegation of unconscionable conduct against the maintenance contractor was general, elusive and vague. 164 The learned magistrate addressed Magnalaw's claim for unconscionable conduct.79 Again, there was no legal, factual or discretionary error demonstrated in the Reasons. 165 The learned magistrate found that Magnalaw was at no special disadvantage or disability as against the maintenance contractor or any of the other respondents.80 166 Furthermore, there is no basis on which the magistrate could have found that Magnalaw was at a special disadvantage and was taken advantage of by any of the respondents to these proceedings. 76 Reasons [106]. 77 Appeal hearing ts 125. 78 Reasons [59]. 79 Reasons [57] - [64]. 80 Reasons [60]. -- 31 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 32 167 The Reasons demonstrate the evidence that was available to the magistrate.81 His Honour was entitled to take into account and to rely on that evidence. His Honour was entitled to conclude, as he did,82 that Magnalaw provided no evidence which contradicted or cast doubt on the evidence of the lift consultant or the maintenance contractor. 168 Further, there was no evidence of any special disadvantage or disability. The learned magistrate set out Dr Zaghloul's considerable expertise in matters of engineering83 and included a reference to Dr Zaghloul's claims of legal training and experience.84 169 Magnalaw has not demonstrated a legal, factual or discretionary error by the magistrate in that regard and the magistrate's findings were entirely open on the evidence.85 Harassment and annoyance 170 The magistrate found that the purpose of the claim was to harass, annoy or cause delay of or detriment to the proceedings or was otherwise wrongful.86 The learned magistrate referred to evidence: 5 … (o) The purpose of the Claimant's claim is to harass or annoy, or to cause delay of or detriment, or is the proceedings otherwise wrongful. This is highlighted by a number of matters including the following: (p) On 15 October 2024, the Claimant's director emailed the defendants' solicitors stating: 'You should inform your clients that the path you have put them on (to defend this claim) can be long and torturous. [sic]' (q) That was not an isolated threat. On 20 October 2024, the Claimant's director sent a further email to the Defendants' solicitors stating: 81 Reasons [62]. 82 Reasons [63]. 83 Reasons [60]. 84 Reasons [61]. 85 Reasons [59]. 86 Reasons [5(o)] - [5(q)]. -- 32 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 33 'You should inform your clients that the path you have put them on (to defend this claim) can be long and torturous [sic]. There will be legal costs to plead Defence, submissions, discovery, interrogatories, Subpeonas [sic], pre-trial conference, and the trial of course. There are also rules with costs that you should inform your clients. All what I am asking is less than $6,000 per defendant. At $500 an hour, the bill of costs will very rapidly climb and then exceed that amount.' (footnotes omitted) 171 It was entirely open to the magistrate to make the finding that Dr Zaghloul's purpose was wrongful. The only inference that arises was Dr Zaghloul saw an opportunity to shake the respondents down by way of inviting them to consider the prospect of each incurring expensive legal costs as opposed to paying him, or Magnalaw, and thereby avoiding the long and tortuous path, which sadly has now been travelled. Given the complete lack of merit in any of Magnalaw's claims, notwithstanding their number and hyperbole, the conclusion that the claim was wrongful was the only one open.87 172 Section 17(1)(c) of the Act empowered the learned magistrate to strike out Magnalaw's case if the court decided that its purpose was to harass or annoy or to cause delay or detriment or was otherwise wrongful. 173 The learned magistrate made this conclusion. 174 Magnalaw has failed to demonstrate that the decision was wrong. Negligence 175 The magistrate made a finding with regard to Magnalaw's claim of negligence.88 No error can be demonstrated in his Honour's finding that the material fact of the cause of action was not pleaded. 176 The claim for negligence had no prospect of success. 87 Reasons [5(o)]. 88 Reasons [65] - [66]. -- 33 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 34 Jurisdictional error 177 Dr Zaghloul asserted that there was a jurisdictional error arising from the dismissal of his claim in circumstances where there were at least 41 disputes coming from the respondents themselves.89 The disputes, as described by Dr Zaghloul, consisted of the denials by the respondents to his claims. Simply because there is a denial does not mean that there is a triable issue. 178 The fact that a claim is made and is disputed does not create a jurisdictional error. 179 A jurisdictional error includes circumstances described in a summary of the statements of principle in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:90 (a) and can refer to a breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute; (b) means a decision affected by jurisdictional error is a decision in fact but in law no decision at all and is void; and (c) made on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. 180 The categories of jurisdictional error are not closed.91 Where it is alleged that a decision is affected by jurisdictional error, there are two questions: has an error occurred; and, if so, was that error material.92 In the circumstances of Dr Zaghloul's complaints there is no reasonable basis on which it could be asserted that the learned magistrate made a jurisdictional error. 89 Appeal hearing ts 73. 90 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [2] - [4] (LPDT). 91 LPDT [3]. 92 LPDT [9]. -- 34 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 35 181 I have read the entire transcript of the proceedings and the magistrate's Reasons. On a reading of the proceedings there is no basis for the assertions that the magistrate, in dealing with Dr Zaghloul as a self-represented person, did not extend him fairness, impartiality or a fair process.93 182 There was no jurisdictional error. There is a complete lack of merit in Magnalaw's claims. Even if there were an error, there is no reasonable basis to assert that an error was of a nature to constitute a material difference. There is nothing in Dr Zaghloul's submissions or Magnalaw's various claims which could support a proposition that the decision that was made by the learned magistrate could, realistically, have been different had there been no error as asserted.94 183 The possibility of a different outcome, such as asserted by Dr Zaghloul is one which is beyond the bounds of fancifulness and probability. Bias Ground 2 - apprehension bias complaint 184 There is no basis for Magnalaw's complaint that there was a reasonable apprehension of bias by a denial of procedural fairness. 185 The test for apprehended bias is set out in Ebner v The Official Trustee in Bankruptcy.95 It involves two steps. First, circumstances which might lead a judicial officer to decide the case on a basis other than its legal and factual merits must be identified. Second, a logical connection must be established between that matter and the alleged deviation by the judicial officer. The test is an objective one viewed from the perspective of a fair-minded lay observer and the possibility of bias must be real and not remote. 186 Magnalaw initiated proceedings against four separate entities. Each of those entities, namely the respondents in this appeal, were entitled to separate legal representation. 187 Magnalaw commenced minor claim proceedings. By reason of Magnalaw's conduct the matter progressed to a proceeding under the general procedure. The procedural history of Magnalaw's claim was set by the magistrate.96 93 See Zaghloul submission, Appeal hearing ts 73. 94 LPDT [14]. 95 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337. 96 Reasons [34] - [40]. -- 35 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 36 188 The learned magistrate noted that Magnalaw was pursuing damages in excess of the minor cases division and concluded that the claim must remain in the general division.97 189 Magnalaw has not demonstrated any legal, factual or discretionary error by the magistrate in conducting the proceedings under the general procedure. There was no error in the respondents being separately represented and the separate representation was a right open to each of the respondents. 190 The thrust of the complaint appears to be directed toward the likely cost consequence to Magnalaw if, as proved to be the case, Magnalaw were unsuccessful in its case against each of the respondents. 191 I accept the maintenance contractor's submissions98 that there is nothing in the transcript or in the magistrate's Reasons which suggests a predetermination or dispute or prejudice against Magnalaw. 192 The finding that the purpose of Magnalaw's claim was to harass or annoy99 was entirely open on the evidence and justified having regard to the materials referred to by the magistrate.100 193 Magnalaw has identified nothing which suggests the learned magistrate decided the case on a basis other than its legal and factual merits. 194 Magnalaw's claim in its entirety against each of the respondents was completely without merit. 195 It was not necessary for the magistrate to identify the wrongful purpose which motivated the claim by Magnalaw in order to form a view that the claim was entirely without merit. In any event it is clear from Dr Zaghloul's letter of 20 October 2024 that he was seeking an amount of money from the respondents in circumstances where his claim was untenable, by reference to the expense that the respondents would be forced to meet in the event that the proceedings continued.101 97 Reasons [43]. 98 First respondent's outline of written submissions, par 30.3. 99 Reasons [5(o)]. 100 Reasons [5(p)] - [5(q)]. 101 Reasons [5(q)]. -- 36 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 37 196 The wrongful purpose identified by the learned magistrate was the only inference that arose by reference to correspondence referred to in the Reasons. 197 In any event, the claims were entirely misconceived and could not be sustained. The only appropriate outcome was for each of them to be dismissed. Given that there is no reasonable basis for a suggestion that the case was decided on a basis other than its legal and factual merit, there is no connection between the decision made and the suggestion of a reasonable apprehension of bias. There was no failure to comply with the rules of natural justice. Ground 3 - constitutional argument 198 This was colourfully described in the appeal book under the heading 'Collapse of Judicial Function Chapter III Court'. There is no basis in this argument or this ground. 199 In the appeal Dr Zaghloul withdrew the constitutional argument but seemed to repeat it102 asserting a jurisdictional error. For reasons previously expressed, there was no lack of fairness, impartiality or fair process and no jurisdictional error. 200 Although the constitutional argument was withdrawn, a similar argument was considered by the Court of Appeal in Zaghloul v Bradley Bayly Holdings Pty Ltd.103 The Court of Appeal found that Dr Zaghloul's argument in that case was entirely misconceived. In that case, after determining that there was no legislation which arguably impaired the institutional integrity of the District Court, the Court of Appeal found:104 … If the primary judge had acted in circumstances giving rise to a reasonable apprehension of bias, had resolved the case in a manner that was procedurally unfair, or failed to give reasons so as to compromise the exercise of this court's appellate jurisdiction, then he would have made an error of law which could justify appellate interference with his decision. In any of those cases there could be no need to invoke constitutional limitations of the kind discussed in the previous paragraph. 201 The same observation applies in this case. 102 Appeal hearing ts 73. 103 Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 (Zaghloul). 104 Zaghloul [73]. -- 37 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 38 Ground 4 - costs agreement 202 I accept the submission made by the maintenance contractor that the ground lacks any foundation. The ground was not raised in the first instance. This court has no jurisdiction to determine it. In any event, the fee arrangement which the maintenance contractor's solicitors had with its client or the fee arrangement that any of the respondents had with their clients are of no relevance to the decision of the magistrate and could not, and do not, demonstrate a legal, factual or discretionary error by the magistrate. Section 16(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) 203 Insofar as there was a complaint that there was an error in the exercise in the magistrate's discretion not to allow Magnalaw to amend its case and add new causes of action after the substantive hearing, there was no error demonstrated. The magistrate dealt with the application in his Reasons.105 204 Clearly the magistrate had the power to determine whether or not to allow Magnalaw to amend its case. 205 The amendment was not of right. 206 As identified by the magistrate, the amendments were proposed after the substantive hearing and included new causes of action. No error can be demonstrated in the magistrate's finding that the attempt to introduce further causes of action at that stage and by that means was entirely inappropriate.106 207 Furthermore, the magistrate was correct to find that the raising of such amended and new alleged causes of action after the substantive hearing was not only inappropriate, but an abuse of process.107 It was not necessary for the magistrate to conclude that the claims were untenable in order for them to be struck out. 208 There is no basis for the assertion by Magnalaw that the magistrate's Reasons gave rise to a form of any kind of constitutional invalidity. 105 Reasons [97], [117] - [118]. 106 Reasons [97]. 107 Reasons [118]. -- 38 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 39 209 I accept the former council member's submissions that the findings of fact and exercise of the discretion by the magistrate pursuant to s 16, s 17 and s 18 of the Act could not be described as giving rise to some invalidity by reason of chapter III of the Commonwealth Constitution.108 Procedural unfairness 210 As found previously, there was no basis for the submission that there was a denial of procedural fairness in the form of there being a reasonable apprehension of bias against Magnalaw by the magistrate. 211 There was no obligation to ensure that each of the respondents was represented by the same lawyer. There was no obligation to decline legal representation and further, there was no basis on which a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the questions he was required to determine in circumstances where: 1. He carefully discussed with Dr Zaghloul on behalf of Magnalaw, whether it was a minor case claim or a general procedure claim. 2. His express directions to approach the matter in accordance with the usual principles for self-represented litigants.109 3. The magistrate's accurate description of granting Magnalaw considerable leeway in reframing his claim.110 4. The magistrate allowed Magnalaw to abandon his claim under the Corporations Act and later to reinstate that claim and again later to withdraw that claim.111 5. The leave extended by the magistrate to amend Magnalaw's claim to be for damages in excess of $10,000 but no more than $75,000.112 6. The magistrate's decision to grant an adjournment on 14 October 2024 and direction to the defendants to lodge and serve written submissions so that Dr Zaghloul could see the defendants' submissions in advance of the hearing.113 108 Third respondent's outline of written submissions, par 43. 109 Reasons [27] - [31]. 110 Reasons [34] - [36]. 111 Reasons [36] and [38]. 112 Reasons [39]. 113 Reasons [44]. -- 39 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 40 212 The fact is that Magnalaw pursued a claim in damages that was in excess of the minor cases division and the magistrate was correct to find it was appropriate that the claim remained in the general division.114 213 Further, as can be seen,115 the learned magistrate carefully considered and explained to Dr Zaghloul why it was that there could not be one lawyer advising on all matters noting specifically that what might be in the interests of the property manager might not be in the interests of the lift consultant and might not be in the interests of the council member. 214 Further, the issue of costs was acutely known to Dr Zaghloul who denied making a threat insofar as the 'long and torturous path' the respondents had adopted in defending the claim.116 Furthermore Dr Zaghloul was on notice that the correspondence might be found by the magistrate to stand as a threat as opposed to simply saying that the proceedings would be expensive and needed to be resolved.117 Dr Zaghloul told the magistrate that the matters of expense were matters of fact based on his experience in the courts in the last decade.118 215 The complaint of procedural fairness arose essentially because the magistrate found against Dr Zaghloul. The complaint is in no way demonstrated by a procedural unfairness and does not demonstrate an apprehended or actual bias. They do not demonstrate a legal, factual or discretionary error by the magistrate. 216 Insofar as the complaints that the proceedings were transferred from the minor claims to the general division of the Magistrates Court, the Minor Case Claim as filed by Magnalaw sought as a remedy a transfer to the Supreme Court if damages were to exceed the jurisdiction of the Magistrates Court. Furthermore, the remedy included claims for aggravated and exemplary damages for what was said to be a flagrant breach of the agreement, the Australian Consumer Law, the Strata Act and the Corporations Act. 114 Reasons [43]. 115 Appeal Book, pages 31 and 32. 116 Appeal Book, pages 31 and 32. 117 Appeal Book, page 33. 118 Appeal Book, page 33. -- 40 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 41 217 The remedy claimed demonstrated the lack of credibility or veracity in Dr Zaghloul's submissions that the proceedings were transferred unfairly from the Minor Case Claims division of the Magistrates Court. Furthermore, it is clear that during the course of the proceedings, Dr Zaghloul was aware that the proceedings were to be transferred, and he did not take exception to that.119 Maintenance contractor 218 Magnalaw did not ever have a contract with the maintenance contractor. 219 On all of the available evidence the contract was between the maintenance contractor and the strata company. The magistrate correctly found this.120 220 It is an entirely orthodox proposition that a person who is not a party to a contract is not permitted to enforce it. Former strata manager 221 The magistrate dealt with claims of breach of fiduciary duty and misappropriation and unjust enrichment, notwithstanding that they were not previously mentioned in the proceedings and struck these claims out.121 222 As against the former strata manager, the claims were similarly struck out. 223 There was no evidence whatsoever that Magnalaw had ever entered into a contract with the former strata manager. 224 In the magistrate's findings Magnalaw has not demonstrated any legal, factual, or discretionary error on the part of the magistrate.122 Former council member 225 The claims against the council member were dealt with by the magistrate.123 Magnalaw complained that the protection afforded by s 141 of the Strata Act do not apply. 119 Appeal Book, page 83; Magistrates Court transcript dated 14 October 2024, ts 13, which recorded Dr Zaghloul expressly agreeing that his claim exceeded $10,000. 120 Reasons [51]. 121 Reasons [68] and [70]. 122 Reasons [77] - [78]. 123 Reasons [88] - [90]. -- 41 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 42 226 Section 141 of the Strata Act provides: (1) This section applies to a person who is or has been - (a) a member of the council of a strata company (including when acting as an officer of the strata company); or (b) an individual authorised under section 136(2) by a corporation to perform the corporation's functions as a member of the council, or an officer, of a strata company. (2) No civil liability attaches to a person to whom this section applies for anything that the person has, in good faith, done or omitted to be done - (a) in the performance of a function under this Act or scheme by-laws; or (b) in the reasonable belief that the act or omission was in the performance of a function under this Act or scheme by-laws. (3) A liability that would, but for subsection (2), attach to a person attaches instead to the strata company. 227 By s 141(2) of the Strata Act a protection extends to a person who in good faith performs the corporation's functions as a member of a council or as an officer of a strata company. 228 The council member was a member of the council of owners, and he had the benefit of the protection of s 141(2). There was no evidence of any conduct on the part of the council member such as to abrogate the protection afforded by the statute. The magistrate was correct to find that the claim against the council member should be struck out because it was so clearly untenable that it could not possibly succeed. 229 There was no evidence to suggest that the statements, acts or omissions made by the council member were made in trade and commerce. There was no case or claim against the council member for misleading and deceptive conduct pursuant to the Australian Consumer Law. 230 Magnalaw did not challenge this finding. I accept the council member's submissions.124 124 Third respondent's outline of written submissions, par 32. -- 42 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 43 231 Furthermore, it was open to find, as the magistrate did, that Magnalaw did not rely on any alleged statement, act or omission alleged to have been made by the council member even if they were made in trade or commerce. This is so because it was open for the magistrate to find that Magnalaw abstained from voting. Lift consultant 232 The magistrate set out the allegations against the lift consultant.125 233 The magistrate found126 the lift consultant was engaged by the former strata manager on behalf of the strata company. This finding was entirely consistent with the evidence that was before the magistrate and is as fatal to Magnalaw's appeal as it was to his claim. There was no contractual relationship or engagement between the lift consultant and the former strata manager and Magnalaw. Furthermore, the magistrate made findings as follows:127 (b) The Claimant did not rely on any representation allegedly made by the lift consultant as he abstained from voting. (c) Any decision in respect of the repair or replacement of the lift at the Complex was the decision of the Council of Owners or the Strata Company not the Claimant. (d) The Claimant did not rely on any representation allegedly made by the lift consultant to make any decision which caused him loss and the Claimant has suffered no relevant loss. 234 There was no evidence before the magistrate which could afford any other finding. 235 The assertion that the learned magistrate failed or made an error of fact in finding that Magnalaw abstained from the vote is simply that. There was no evidence to demonstrate that Magnalaw, as a matter of fact, did vote and the finding that the magistrate made was open on the evidence. 236 Magnalaw has not demonstrated a legal, factual, or discretionary error by the magistrate. 125 Reasons [100]. 126 Reasons [101(a)]. 127 Reasons [101(b)] - [101(d)]. -- 43 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 44 237 The magistrate made findings on the basis of the evidence that was before him.128 This was in the context of Magnalaw's pleadings which recorded an abstention, the documents which did so and Dr Zaghloul's lack of candour in not clarifying that there were two votes, and according to him he voted in the second. 238 The finding included a conclusion that the lift consultant's conduct was not misleading and deceptive or likely to mislead or deceive because the statements set out in the lift consultant's report were correct.129 This, together with the overwhelming carriage of the vote, demonstrated the issue of abstention or not was irrelevant. 239 The magistrate found that the decision to replace the lift was made by the council of owners and not Magnalaw. Whether or not Magnalaw abstained from voting, as the magistrate found, did not change the fact that it was the council of owners that made the decision. 240 The magistrate's conclusions that the lift consultant's conduct was not misleading and deceptive or likely to mislead or deceive, were entirely consistent with the available evidence.130 Conclusion 241 Magnalaw's appeal is dismissed. I will hear from the parties as to costs. 128 Reasons [101] - [104]. 129 Reasons [105]. 130 Reasons [105] - [108]. -- 44 of 45 -- [2026] WADC 38 MACLEAN DCJ [2026] WADC 38 (MW) Page 45 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. BG Associate 8 MAY 2026 -- 45 of 45 --