Ruling notes appellants claiming financial strain received substantial judgment sum
After the appellants received a substantial judgment sum, the New South Wales Supreme Court’s Court of Appeal refused to refer the second appellant to a pro bono scheme under r 7.36 of the Uniform Civil Procedure Rules (2005) NSW.
In S&P Gomes Pty Ltd t/as Cohuna Hotel Motel v Mohan Sundar t/as Sun Legal (No 2), [2026] NSWCA 13, the first appellant was the second appellant’s company, which did not pursue a referral to a pro bono scheme. Meanwhile, the first respondent was the appellants’ former solicitor.
In two affidavits and written submissions, the second appellant asked for a referral because:
The Court of Appeal of the Supreme Court of New South Wales dismissed the second appellant’s notice of motion dated 28 January 2026. The appeal court ruled that making a referral under r 7.36 would not serve the interests of the administration of justice.
The appeal court found the second appellant’s first and second points entitled to some weight. However, the appeal court pointed out that many litigants experienced similar issues.
The appeal court also acknowledged the second appellant’s third point. However, the appeal court stressed the limited force of this factor, as many in-person litigants considered participating in a court case demanding, if not traumatic.
Regarding the second appellant’s fourth point, in the circumstances, the appeal court found on a prima facie basis that expending limited pro bono resources on the appellants’ proceedings appeared not to serve the administration of justice.
The appeal court noted that the appellants challenged the decision of Cavanagh J of the New South Wales Supreme Court and tried to recover more money from the respondents. The appeal court added that the appellants could utilise the funds in the judgment sum to pay the legal fees on appeal.
The second appellant asserted that years of legal costs, business loan liabilities, operating expenses, and necessary family and medical costs had significantly used up those funds.
The appeal court accepted that the appellants faced much financial strain. However, given the context, the appeal court held that the appellants had the means to afford legal representation, while the second appellant had the capacity to obtain legal assistance beyond the pro bono scheme.
The appeal court acknowledged that the second appellant provided multiple screenshots of bank statements. However, the appeal court said his affidavits expressed his position too generally and included statements that apparently contradicted each other.
The appeal court noted that the first respondent previously paid the first appellant the full judgment sum and did not attempt to disturb Cavanagh J’s liability finding or damages quantification.
Based on the financial documents tendered, the appeal court found that the first appellant received the judgment sum via its business account and swiftly dispersed the funds.
The appeal court saw no reason to treat the appellants’ financial capacity as independent, as the first appellant was the second appellant’s corporate vehicle.
The appeal court deemed it unnecessary to determine the first respondent’s additional arguments regarding whether there were “proceedings on foot” or previous referrals for pro bono assistance in favour of the second appellant.
Lastly, the appeal court awarded costs to the respondents.
