S&P Gomes Pty Ltd t/as Cohuna Hotel Motel v Mohan Sundar t/as Sun Legal

PAYNE JA: I agree with Harrison AJA.

FREE JA: I agree with Harrison AJA.

HARRISON AJA: By notice of motion filed on 5 January 2026, the appellants seek the following orders:

In proceedings before Cavanagh J sitting in the Common Law Division, the appellants sued the respondents, respectively a firm of solicitors and a council, in respect of losses the appellants alleged that they suffered in connection with the purchase of a hotel property and business. The first appellant is a company controlled by the second appellant.

On 7 February 2025, Cavanagh J found in favour of the first appellant S&P Gomes Pty Ltd against the first respondent Mohan Sundar and awarded damages in the amount of $1,216,615.17: see S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24. The first appellant’s claims were otherwise unsuccessful. The second appellant’s claims failed entirely.

Both appellants filed their notice of intention to appeal to this Court on 28 February 2025. It was not served on the respondents. On 6 May 2025, the appellants filed their notice of appeal. That notice of appeal contained 106 grounds.

On 28 May 2025, the Registrar indicated that the notice of appeal was unsatisfactory and ordered the appellants to file and serve an amended notice of appeal by 25 June 2025. The appellants did not comply with that order.

There was another directions hearing on 30 June 2025, at which orders were made extending until 30 July 2025 the time for the appellants to file and serve an amended notice of appeal, failing which the proceedings would be dismissed for want of due despatch pursuant to UCPR 12.7. That order was not complied with.

At the next directions hearing on 4 August 2025, orders were again made further extending until 10 September 2025 the time for the appellants to file and serve an amended notice of appeal, failing which the proceedings would be dismissed for want of due despatch pursuant to UCPR 12.7. That order was not complied with.

At a fourth directions hearing on 15 September 2025, the appellants sought an adjournment in order to obtain access to audio recordings of the trial before Cavanagh J. The Registrar directed the parties to confer following receipt of the recordings, contemplating a timetable for the appellants to file an amended notice of appeal.

The proceedings were later listed for a fifth directions hearing on 23 October 2025, which was dealt with in chambers. The Registrar granted a further extension of time until 3 December 2025 for the appellants to file and serve an amended notice of appeal, failing which the proceedings would be liable to be dismissed for want of due despatch pursuant to UCPR 12.7. That order was not complied with.

However, on 4 December 2025, the appellants filed a document described as a “Provisional Amended Notice of Appeal”. The document adopted the appellants original 106 grounds of appeal and added 11 further grounds.

On 5 December 2025, both respondents filed and served their notices of motion seeking to dismiss the appellants’ notice of appeal, relying variously upon UCPR 12.7, 13.4 and 14.28, as well as s 61(3) of the Civil Procedure Act 2005 (NSW).

At a sixth directions hearing before the Registrar on 8 December 2025, he ordered that the Provisional Amended Notice of Appeal be voided. The Registrar listed the respondents’ notices of motion for hearing on 15 December 2025.

On 9 December 2025, the second appellant filed and served a notice of motion seeking leave within eight weeks to file and serve an amended notice of appeal.

The appellants’ and the respondents’ notices of motion were heard by McHugh JA on 15 December 2025. It was agreed that the evidence admitted in respect of any one notice of motion could be used in respect of any of the other notices of motion. His Honour:

His Honour dealt with the second appellant’s notice of motion to amend the notice of appeal in the following terms:

His Honour then proceeded to deal with the respondents’ notices of motion to dismiss the appeal as follows:

In summary, his Honour was faced with the fact that the appellants had failed on several occasions to comply with orders that they file an amended notice of appeal to replace the fundamentally flawed version that his Honour described as “prolix, imprecise [and] unfocussed”. Several opportunities to do so came and went, which resulted in extensive delay. That delay was entirely attributable to the appellants’ conduct and was never explained. The respondents were exposed to prejudice as a consequence.

Section 46(4) of the Supreme Court Act 1970 (NSW) provides:

There is no controversy attending the principles that apply in relation to an application, such as the present, to set aside or vary an order of a Judge of Appeal. They were stated in Collier v Lancer [2013] NSWCA 185 at [19]-[20] as follows:

Despite in terms endorsing in their written submissions the principles described in Collier v Lancer, the appellants have failed to identify the error of principle they rely upon or to describe how or why they maintain his Honour’s decision is plainly wrong.

First, the appellants appear to take comfort from what his Honour said at [35] and [36] of his reasons, where he acknowledged that one or some of the 106 grounds of appeal on which the appellants proposed to rely may have been at least arguable. That misunderstands what his Honour was saying: he was in fact doing no more than giving the appellants what may be described as the benefit of the doubt on the question of the possible strength or otherwise of the arguments that they wished to propound in the appeal. His Honour was certainly not expressing a final view, favourably or otherwise, about the merits of these grounds. He was on the contrary merely indicating that the appellants’ failures were such that, even in the case of a theoretically arguable appeal, there had ultimately to be a limit upon the extent to which any appellant could continue repeatedly and without satisfactory explanation to delay the proceedings or to fail to comply with orders or directions.

Secondly, the appellants misunderstand the effect of his Honour’s reference at [22] to the prospect that there was no reason to think that they were any more likely to produce an amended notice of appeal than they had up until that point been able to provide. This was not, as the appellants were wont to characterise it, a prediction that they were permanently incapable of rationalising their grounds. His Honour was, as he was required, doing no more and no less than indicating his view of the then current state of affairs with which he was dealing. The clearly desultory way in which the appellants had conducted the proceedings up until that time was a relevant consideration for him to take into account. He was not, as the appellants contend, mistakenly making a prediction. He was on the contrary commenting upon what he could conclude from the evidence that was before him. As the respondents have emphasised, the uncontradicted evidence was of an unexplained failure to file the foreshadowed amended notice of appeal over the period from 28 May 2025 until 8 December 2025.

Thirdly, the appellants contend that his Honour somehow failed relevantly to “make such other order as the Court thinks fit” in deciding whether they had failed to prosecute the proceedings with due despatch. The appellants submitted that those words contemplated “not a secondary option of lesser status” but “an equal alternative, expressly provided, which the court is required to consider”. Accepting that his Honour’s choice was binary, there can be no force in the contention that “there has been an error of principle in the exercise of the power or that the decision was plainly wrong” simply because his Honour exercised the available discretion to choose. His Honour’s decision was not wrong simply because the appellants do not agree with it.

Finally, and in a related sense, the appellants contend that in considering the overriding purpose enshrined in s 56(1) of the Civil Procedure Act, his Honour somehow relevantly erred by addressing “quick” and “cheap” but did not address “just”. With respect to the appellants, this contention is mere sophistry. The determination of whether or not a particular conclusion or outcome is just is a function of a number of things, including whether it is quick and cheap. Indeed, in giving consideration to the terms of s 56(1), his Honour was entitled, if not required, to consider all three matters and determine on balance how they operated in combination. It is obvious from his Honour’s reasons that he considered, having regard to the egregious nature of the delay, the associated wasted costs and the prejudice to the relevantly faultless respondents, that he was entitled to dismiss the proceedings. In doing so his Honour did not make an error of principle in the exercise of the power he had to consider the UCPR 12.7 question and the appellants have not demonstrated that his decision on that matter of practice and procedure was plainly wrong.

Before concluding I note that on this application for leave to appeal six affidavits (with annexures) were relied upon by the applicants. Those six affidavits (with annexures) were the subject of a limiting order under s 136 of the Evidence Act 1995 (NSW), namely that they were admitted “only for the limited purpose of reconsideration of the merits of the application, if the Court is persuaded to intervene under s 46(4) of the Supreme Court Act”. I am not persuaded that this Court should intervene under s 46(4) of the Supreme Court Act and, accordingly, the condition of the limiting order under s 136 of the Evidence Act has not been met.

It follows in my opinion that the appellants’ notice of motion should be dismissed with costs.