PRIVATE LENDER PTY LTD -v- FULFIL THE DREAM PTY LTD [2026] WADC 74

[2026] WADC 74 [2026] WADC 74 (PC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : PRIVATE LENDER PTY LTD -v- FULFIL THE DREAM PTY LTD [2026] WADC 74 CORAM : STAUDE DCJ HEARD : ON THE PAPERS DELIVERED : 14 AUGUST 2026 FILE NO/S : CIV 401 of 2024 BETWEEN : PRIVATE LENDER PTY LTD Plaintiff AND FULFIL THE DREAM PTY LTD First Defendant HIRSCH-BORTZ PTY LTD Second Defendant RICKY DEAN HIRSCH Third Defendant AND RICKY DEAN HIRSCH Plaintiff by counterclaim AND PRIVATE LENDER PTY LTD Defendant by counterclaim -- 1 of 6 -- [2026] WADC 74 [2026] WADC 74 (PC) Page 2 Catchwords: Procedure - Remittal of action to Supreme Court of Western Australia - Counterclaim for damages in an amount exceeding the court's monetary jurisdiction Legislation: District Court of Western Australia Act 1969 (WA), s 77 Result: Matter to be remitted to the Supreme Court of Western Australia Representation: Original Action Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Solicitors: Plaintiff : Parsons & Partners First Defendant : Not applicable Second Defendant : Not applicable Third Defendant : Not applicable Counterclaim Counsel: Plaintiff by counterclaim : No appearance Defendant by counterclaim : No appearance -- 2 of 6 -- [2026] WADC 74 [2026] WADC 74 (PC) Page 3 Solicitors: Plaintiff by counterclaim : Not applicable Defendant by counterclaim : Parsons & Partners Case(s) referred to in decision(s): McGlinn as administrator for Jeffery Craig McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105 Trimble v Piggott (1995) 14 WAR 329 -- 3 of 6 -- [2026] WADC 74 STAUDE DCJ [2026] WADC 74 (PC) Page 4 STAUDE DCJ: 1 This action has been referred by a registrar to a judge to determine whether it should be remitted to the Supreme Court of Western Australia pursuant to s 77 of the District Court of Western Australia Act 1969 (WA) (the Act). An order transferring an action to the Supreme Court pursuant to s 77 may only be made by a judge: McGlinn as administrator for Jeffery Craig McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105 [13]. 2 There is no application by either party for such an order. The question arose in the course of a directions hearing before Registrar Nairn as a result of the third defendant filing an amended defence and counterclaim on 12 May 2026 in which he particularised his claim for damages in a sum that exceeds the court's jurisdictional limit. 3 The learned registrar on 25 June 2026 ordered that the question of whether the action should be remitted to the Supreme Court be referred to a judge for determination and that any party wishing to oppose the remittal order file and serve an outline of submissions together with any affidavit by 2 July 2026. Since that order was made no party has lodged an outline of submissions or an affidavit in opposition to the remittal order. 4 The background to the question may be briefly stated by reference to the nature of the plaintiff's claim and the third defendant's defence and counterclaim. 5 The plaintiff advanced $400,000 by way of loan to the first defendant. The third defendant is the sole director, secretary and shareholder of the first defendant and second defendant. The second defendant and third defendant were guarantors of the money advanced to the first defendant. The first defendant is said to have defaulted. In the action the plaintiff claims the sum of the advance and interest from each of the defendants. 6 Only the third defendant entered an appearance to the writ of summons. The plaintiff brought an application for summary judgment. That led to a lot of interlocutory disputation. Ultimately the third defendant was given conditional leave to defend. -- 4 of 6 -- [2026] WADC 74 STAUDE DCJ [2026] WADC 74 (PC) Page 5 7 The third defendant filed and served an amended defence and counterclaim on 26 May 2026. In that pleading the third defendant alleged that the plaintiff had made representations to the first defendant with respect to refinancing the loan. The third defendant alleges that a refinancing agreement was made. Alternatively, the third defendant says the representations amounted to misleading and deceptive conduct and constituted a promissory estoppel, alternatively unconscionable conduct, on which the third defendant relied to his detriment. The defence of the third defendant pleads an equitable set off. The counterclaim pleads loss and damage particularised in part as a loss of opportunity to make profits exceeding $1 million from land development. 8 Section 77 provides: Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court. 9 The power conferred by s 77 may be exercised by a judge on their own motion: Trimble v Piggott (1995) 14 WAR 329 [331]. 10 The court's jurisdictional limit for personal actions other than for damages in respect of the death of or bodily injury to a person is $750,000: District Court of Western Australia Act s 6(1), s 50(1). 11 Section 58(1) provides: Where in an action before the Court any defence or counterclaim of the defendant involves matters beyond the jurisdiction of the Court, that defence or counterclaim does not affect the competence of the Court to dispose of the whole matter in controversy, so far as it relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer shall, subject to section 51, be given to the defendant upon that counter claim. 12 While s 58(2) provides that in any action to which subsection (1) applies a party may apply to the Supreme Court for an order that the whole of the action be transferred to the Supreme Court, it seems to me that the quantum of the counterclaim affords sufficient grounds for the exercise of the court's discretion to remit the matter pursuant to s 77, and I make that order accordingly. -- 5 of 6 -- [2026] WADC 74 STAUDE DCJ [2026] WADC 74 (PC) Page 6 13 As this matter has been determined on the papers upon a reference by a registrar there will be no order as to costs with respect to the remittal. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 14 AUGUST 2026 -- 6 of 6 --