S&P Gomes Pty Ltd t/as Cohuna Hotel Motel v Mohan Sundar t/as Sun Legal (No 2)

1. [1]

   The second appellant in this matter, Mr Paul Gomes, seeks a referral to a pro bono scheme pursuant to r 7.36 of the Uniform Civil Procedure Rules (2005) NSW (UCPR). The first appellant in the matter – which does not seek such a referral – is Mr Gomes’ company, S&P Gomes Pty Ltd t/as Cohuna Hotel Motel.

2. [2]

   Mr Gomes appeared for himself on the application. English is not his first language. At his request, I permitted his daughter to speak on his behalf. A solicitor, Ms Wilhelmina Schmid, also sought to appear as amicus curiae. This course was not opposed by any of the parties and I permitted it. I was led to understand that Ms Schmid had previously offered assistance to Mr Gomes, and was there to assist him again today if needed. I allowed her the opportunity to make oral submissions. She took up that opportunity, briefly.

3. [3]

   I am not persuaded that the referral sought by Mr Gomes should be made. In what follows I briefly describe the relevant background and note the principles relating to referrals under r 7.36 before considering Mr Gomes’ application.

Background

1. [4]

   The appeal brought in this Court relates to a judgment of Cavanagh J in the Supreme Court in proceedings in which the appellants were the plaintiffs: S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24. In short, the appellants had purchased a hotel and associated business in Cohuna in rural Victoria, just south of the Murray. They subsequently discovered that the hotel was essentially derelict and that certain stock which the appellants say they had been promised by the vendor had been removed from the business.

2. [5]

   The first defendant in the proceedings below, who is now the first respondent, is the appellants’ former solicitor Mr Mohan Sundar, who traded as “Sun Legal”. He acted for the appellants in relation to the purchase. The appellants claimed they had been negligently advised. The second defendant, which is now the second respondent, is Gannawarra Shire Council. The appellants claimed that the Council owed them a duty of care to ensure that the building was kept in a proper condition.

3. [6]

   The primary judge, in an expeditious judgment handed down on 7 February 2025, held that Mr Sundar had breached his duty of care and awarded the first appellant damages of $1,216,615.17. His Honour rejected the claim against the Council.

4. [7]

   Mr Sundar did not appeal from that decision. The judgment sum has been paid.

5. [8]

   The appellants filed a Notice of Intention to Appeal on 28 February 2025 then, on 6 May 2025, a Notice of Appeal which contained some 106 grounds relating to both respondents. At the first directions hearing in this Court, on 28 May 2025, the Registrar of the Court of Appeal indicated that the Notice of Appeal was unsatisfactory and directed the appellants to file and serve an Amended Notice of Appeal by 25 June 2025.

6. [9]

   It is not necessary to recount the subsequent events in detail save to note that the appellants failed to comply with four orders of the Court directing that an amended Notice of Appeal be filed. A document described as a “Provisional Amended Notice of Appeal” was eventually sought to be filed more than five months after the original deadline for filing and contained 11 further grounds in addition to the original 106 grounds of appeal.

7. [10]

   On 15 December 2025 McHugh JA heard three notices of motion: one from the second appellant seeking leave to file and serve an Amended Notice of Appeal and an extension of time of a further eight weeks in which to do so; and one motion from each respondent seeking that the Notice of Appeal be dismissed either for want of prosecution or for not properly disclosing grounds of appeal. His Honour dismissed the second appellant’s notice of motion with costs, and dismissed the notice of appeal with costs for want of due despatch pursuant to r 12.7 of the UCPR.

8. [11]

   By a notice of motion filed on 7 January 2026 – which is not before me – the appellants have sought to re-open McHugh JA’s decision and reinstate their appeal against the primary judgment. It is in that context that Mr Gomes seeks a referral for pro bono assistance.

Referral for pro bono assistance

1. [12]

   Under r 7.36 of the UCPR, the Court may refer a litigant to a barrister or solicitor on the Pro Bono Panel for legal assistance. The rule states as follows:

2. [13]

   Principles relevant to the exercise of the power have been discussed in many cases in this Court: eg Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288 at [42]; Young v Director of Public Prosecutions [2022] NSWCA 133 at [6]-[10]; Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [12]-[13]. In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 Brereton JA stated, in terms approved many times subsequently, that:

Determination

1. [14]

   In his two affidavits and in relatively sophisticated written submissions Mr Gomes gives the following main reasons why a referral should be made:

   1. (1)

      English is not his first language and he struggles to engage with the court process;

   2. (2)

      the appeal involves “complex legal and procedural issues” (being a potentially relevant matter under r 7.36(2)(c)), which places him at a significant disadvantage compared with the respondents;

   3. (3)

      he suffers from multiple physical and mental health conditions, including suffering “symptoms of anxiety, depression, panic attacks and ongoing emotional difficulties”;

   4. (4)

      the proceedings have been lengthy and expensive, and neither he nor his company are in a position to pay for legal representation (raising, potentially, the matters referred to in r 7.36(2)(a) and (b)).

2. [15]

   I accept the first and second points, which are entitled to some weight. That being said, there are many litigants in the courts who suffer similar difficulties, which is relevant to considering the Court’s “responsibility to husband this resource carefully” (Renshaw at [11]).

3. [16]

   I also accept the third point. Mr Gomes tendered a report of a psychiatrist which says that since at least February 2023 Mr Gomes has had “features of [a] major depressive disorder”, and that his symptoms have “significantly impacted his overall executive and cognitive functioning”. Again, however, this factor has limited force in this case. Many litigants in person find the process of participating in a court case to be demanding, if not traumatic. As Beech-Jones CJ at CL said in Kearney v Amirbeaggi [2022] NSWSC 805 at [20], in the context of an application to vacate a hearing date: “All litigation is stressful. Litigation conducted by a lay person on their own behalf is particularly stressful. Complex litigation of the kind initiated here by a lay person on their own behalf, is especially stressful.” The psychiatric report referred, unsurprisingly, to the litigation being a stressor for Mr Gomes, but did not state that having to appear for himself – as opposed to the litigation per se – was of particular significance in this regard. Mr Gomes’ substantial success in the trial before Cavanagh J suggests that he was able to represent himself quite adequately.

4. [17]

   The key issue in this application is the fourth point raised by Mr Gomes. Mr Sundar has paid the full judgment sum to the first appellant and has not sought to disturb Cavanagh J’s finding of liability or quantification of damages. The first appellant is Mr Gomes’ corporate vehicle. There is no reason in this case to treat the financial capacity of the two appellants as though they were independent and Mr Gomes did not suggest I should do so. The funds paid could be drawn upon for the payment of legal fees in the appeal. It is the appellants who initiated the appeal from Cavanagh J’s decision seeking to recover additional money from the respondents. In such circumstances, prima facie it does not appear to be in the interests of the administration of justice to expend the limited pro bono resources available on the appellants’ proceedings.

5. [18]

   Mr Gomes contended that “those funds have been substantially exhausted by years of legal costs, repayment of business loan liabilities, ongoing operating expenses, and essential family and medical costs”. He has tendered various financial documents. Those documents show that the judgment sum was received by the first appellant into its business account and then quickly dispersed. The effect of Mr Gomes’ submissions appeared to be that he and his business had significant and urgent expenses that needed to be prioritised over instruction of legal representatives in the present appeal.

6. [19]

   Although Mr Gomes has provided a large bundle of screen shots of bank statements and the like, his explanation of his position in his affidavits is expressed at a high level of generality. For example, he says that his company “is now experiencing serious financial hardship and does not have sufficient funds to bear the cost of legal representation”. He says that the company has an outstanding bank loan “and I have paid part of that loan from the judgment funds”. He does not explain whether the bank was pressing for that payment; whether any amount remains outstanding; or what would have happened if the payment had not been made. He also says, in a very general way, that “I have also been required to meet ongoing business expenses, including electricity, water, gas, licence fees and the costs of maintaining the liquor business”. He says that he and his wife “have some limited personal funds remaining” but he does not give details. Nor does he give any real explanation of why, in that context, he says he is “not in a position to continue paying legal costs from my personal resources”.

7. [20]

   There are also statements in his affidavit of 8 February 2026 which appear to be in tension with one another. For instance, at one point he says that he and his family have “worked continuously to keep the business operating”, even though “the business has not been fully running and no salaries have been paid to family members” (emphasis added). Yet he also says that ultimately the Council “served an evacuation notice requiring the premises to be vacated, as result of which the business was forced to completely shut down”. He does not explain when the business was shut down, nor whether and why it thereafter continued to incur the “ongoing business expenses” he had referred to earlier.

8. [21]

   I am prepared to accept that Mr Gomes and his company have faced, and continue to face, significant financial strains. I am not persuaded, however, that neither appellant has the means to afford legal representation.

9. [22]

   Moreover, r 7.36(2)(b) refers to “the capacity of the litigant to obtain legal assistance outside the scheme”. That factor is stated separately from the factor in subrule (a), being “the means of the litigant”. A litigant may sometimes have the capacity to obtain legal assistance even if they cannot afford to pay for it. For example, the circumstances may suggest that someone close to them would be willing and able to pay, or that they could obtain representation on a contingent fee basis.

10. [23]

    In Mr Gomes’ affidavit of 27 January 2026 he says “I have made reasonable efforts to obtain legal assistance but have been unable to secure representation due to my financial circumstances”. Yet he does not explain what, if any, efforts he has made to obtain assistance. That point is significant in circumstances where one solicitor was named as Mr Gomes’ legal representative in the filed notice of intention to appeal and another solicitor was named on the filed notice of appeal. On 8 December 2025 a notice of removal of solicitor was filed by Mr Gomes. He did not explain the circumstances of these two sets of solicitors ceasing to act. It is also notable that it seems Ms Schmid was and is prepared to offer Mr Gomes some assistance, as illustrated by her appearance before me as amicus, even if the circumstances relating to her assistance were not explained in any detail.

11. [24]

    In oral submissions Mr Gomes also sought to argue that his financial position had been exacerbated by the actions of the respondents, in particular because although his claim had originally been filed in 2021, they had not filed a defence to his claim until the second half of 2024. Mr Gomes tendered a court transcript of 12 June 2024 of a hearing where Chen J ordered the respondents to file defences. An explanation for the delay in filing a defence offered by counsel for the second respondent in that hearing was that there had been a request for particulars which had not been fully answered. It is not possible for me to conclude from the very limited material before me which of the parties was more or less at fault for the delay in the matter coming to hearing. I am not satisfied that this point weighs in favour of the application.

12. [25]

    In the context outlined I am not persuaded that the appellants do not have the means to obtain legal assistance. Nor am I persuaded that Mr Gomes has no capacity to obtain legal assistance outside the scheme. Those matters weigh heavily against making a referral.

13. [26]

    Taking account of all the circumstances I am not persuaded that it is in the interests of the administration of justice to make a referral pursuant to r 7.36, and I decline to do so. Mr Sundar raised further arguments relating to whether there were “proceedings on foot” and prior referrals for pro bono assistance from which Mr Gomes had benefitted. It is unnecessary to determine those points.

Orders

1. [27]

   Mr Gomes’ notice of motion filed on 28 January 2026 will be dismissed.

2. [28]

   Both respondents read affidavits on the motion, and the solicitor for the first respondent provided written, and made oral, submissions. In the end the first respondent neither consented to nor opposed the application. I understood the second respondent to take the same position. The point at issue did not directly affect the respondents’ interests, and the matters raised by the application were relatively clear. In the circumstances I am not persuaded that a costs order should be made in their favour.