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[2026] NSWCA 85
respondent. The appellants’ notice of motion to set aside the dismissal order, reinstate the appeal and extend time was dismissed with costs.
The Court of Appeal refused to reopen the order dismissing the appellants’ appeal. Review of a Judge of Appeal’s order was not a second appeal: the appellants had to identify an error of principle or show that the decision was plainly wrong. The Court found they had not done so. It also explained that the earlier decision’s acceptance that some grounds might be arguable did not erase the history of delay and failure to comply with court directions. The motion was dismissed with costs.
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2,172 words · generated 08/10/2026
The judgment concerns a procedural application in the NSW Court of Appeal, not a determination of the merits of the appellants’ underlying claims about the purchase of a hotel property and business.
The underlying proceedings were brought by S&P Gomes Pty Ltd and Paul Gomes against Mohan Sundar, a solicitor, and Gannawarra Shire Council. On 7 February 2025, Cavanagh J found for S&P Gomes against Sundar and awarded $1,216,615.17 in damages. The company’s other claims were unsuccessful, and Paul Gomes’s claims failed entirely: [4]-[5]. The Court of Appeal judgment identifies the earlier decision as [2025] NSWSC 24.
6 cited instruments linked from this judgment.
The appellants filed a notice of intention to appeal on 28 February 2025, but did not serve it on the respondents. They filed a notice of appeal on 6 May 2025 containing 106 grounds: [6]. On 28 May, the Registrar indicated that the notice was unsatisfactory and directed the appellants to file and serve an amended notice by 25 June: [7].
They did not meet that deadline. The Court extended the time at subsequent directions hearings, setting further dates of 30 July, 10 September and 3 December 2025. The appellants did not comply with those orders either: [8]-[11]. They sought access to trial audio recordings in September. On 4 December, they filed what they called a “Provisional Amended Notice of Appeal”, which retained the original 106 grounds and added 11 more: [10], [12]. The Registrar ordered that document voided on 8 December: [14].
The respondents had filed motions seeking dismissal. On 9 December, the second appellant filed a motion seeking another eight weeks to prepare and serve an amended appeal notice: [13], [15]. McHugh JA heard the motions on 15 December, dismissed the amendment motion and dismissed the appeal for want of due despatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW): [16].
The appellants then applied under s 46(4) of the Supreme Court Act 1970 (NSW) to set aside that order, reinstate the appeal and extend time: [3], [20]. Harrison AJA gave the principal reasons. Payne JA and Free JA agreed: [1]-[3]. The Court dismissed the review motion with costs: [28].
The Court began with the legal threshold for reviewing an order made by a Judge of Appeal. Section 46(4) provides for the Court of Appeal to discharge or vary such an order. But, as Collier v Lancer [2013] NSWCA 185 explained, an application under that provision is not an appeal. An applicant must establish an error of principle in the exercise of power or show that the decision was plainly wrong: [20]-[21]. The judgment also refers to Lambourne v Baker (No 5) [2024] NSWCA 241 and Lambourne v Baker (No 6) [2025] NSWCA 45 in connection with those principles: [21].
The appellants endorsed that threshold in their submissions, but the Court found they had not identified the required error or explained why the dismissal decision was plainly wrong: [22]. The reasoning then addressed four points raised by the appellants.
First, they relied on McHugh JA’s statement that the appeal might contain some arguable points. Harrison AJA said this misunderstood the statement. McHugh JA had given the appellants the benefit of the doubt on the possible strength of the proposed grounds. He had not finally assessed their merits: [23]. The point was that arguability did not give an appellant unlimited time to prepare an appeal while repeatedly failing to comply with orders. Even a theoretically arguable appeal could be dismissed where delay and non-compliance continued without satisfactory explanation: [23].
Second, the appellants objected to the earlier observation that there was no reason to think they would produce a better amended notice than they had managed to provide to date. Harrison AJA rejected the characterisation of this as a prediction of permanent inability. The observation was about the state of the evidence before McHugh JA at the time. The evidence of failure to file an amended notice between 28 May and 8 December 2025 was uncontradicted, and the delay had not been explained: [24].
Third, the appellants argued that the earlier decision failed to make an alternative order. Harrison AJA accepted, for the purposes of the argument, that the choice was binary. But the availability of another possible order did not demonstrate error simply because McHugh JA chose dismissal. Disagreement with that choice was not enough to meet the review threshold: [25].
Fourth, the appellants argued that the earlier decision addressed “quick” and “cheap”, but not “just”, in applying s 56(1) of the Civil Procedure Act 2005 (NSW). Harrison AJA rejected this argument. Whether an outcome is just depends on a number of considerations, including whether resolution is quick and cheap. The statutory elements are considered together, rather than as isolated requirements: [26]. The Court read the earlier reasons as taking account of the delay, wasted costs and prejudice to the respondents. It found no error of principle and no showing that the procedural decision was plainly wrong: [26].
This judgment does not announce a new test for review under s 46(4). It applies the principles stated in Collier v Lancer: review is not an appeal, and the applicant must show an error of principle or that the decision was plainly wrong: [21]. It also refers to two Lambourne v Baker decisions as authorities relevant to that approach: [21].
The judgment’s contribution is its application of that demanding review threshold to the particular procedural history. The Court treated the possible arguability of some appeal grounds as distinct from the question whether the dismissal decision was legally flawed. Acknowledging arguability did not compel the Court to set aside a decision based on repeated non-compliance and unexplained delay: [23]-[24].
The judgment also explains how the Court understood the “just, quick and cheap” language in s 56(1). In its reasoning, “just” is not assessed without regard to speed and cost. The considerations work in combination, and the relevant balance may include delay, costs already incurred and prejudice to respondents: [26]. The judgment does not purport to replace the broader procedural principles governing dismissal for want of due despatch, and does not state that any one factor will determine such an application in every case.
The underlying order had relied on r 12.7 of the UCPR. The review judgment’s focus, however, is not a fresh or comprehensive reconsideration of all grounds on which the respondents had initially sought dismissal. It is whether the appellants established a basis to disturb McHugh JA’s order under s 46(4): [20]-[22], [25]-[28].
At [21], the Court states that review under s 46(4) “is not an appeal” and requires proof of “an error of principle” or that the decision was “plainly wrong”. In plain English, the review process was not an opportunity simply to repeat the arguments or ask another panel to make a different discretionary choice. The appellants needed to identify a recognised flaw in the earlier decision.
At [23], Harrison AJA explains that the earlier judge was “not expressing a final view” about whether the appeal grounds were strong. In plain English, the statement that some grounds might be arguable was provisional and did not amount to a merits ruling. It did not neutralise the procedural history.
The same paragraph states that even a “theoretically arguable appeal” has limits on how long an appellant can delay or fail to comply with directions without satisfactory explanation. The practical point is that arguability and procedural compliance are related but distinct considerations. A potentially arguable appeal does not automatically prevent dismissal for persistent delay.
At [24], Harrison AJA explains that the earlier comment about the prospect of an amended notice was not a prediction of permanent incapacity. It was a view based on the record then before McHugh JA, including the uncontradicted failure to file an amended notice over the period from 28 May to 8 December 2025. The judgment therefore ties that observation to evidence available at the time, rather than a general conclusion about what the appellants could ever do.
At [25], the Court says that a decision was not wrong simply because the appellants disagreed with it. In context, the appellants’ claim that another order could have been made did not itself show an error of principle or that the decision was plainly wrong.
At [26], the Court explains that deciding whether an outcome is “just” involves several matters, including whether it is quick and cheap. In plain English, the Court did not treat the three aspects of the overriding purpose as separate boxes that must each point in the same direction. It considered them together, including the delay, wasted costs and prejudice discussed in the earlier reasons.
The decision is relevant where a party seeks to have the Court of Appeal discharge or vary an order made by a Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW). Its central procedural point is that the application is not an ordinary appeal. A party seeking review needs to identify an error of principle or explain why the decision was plainly wrong: [21]-[22].
The particular circumstances considered included a notice of appeal containing 106 grounds, repeated extensions to replace it with an amended notice, continued failure to comply, and no satisfactory explanation for the delay. The appellants’ provisional amended document retained the original grounds and added further ones. The earlier judge had also considered the lack of a draft notice and the absence of a clear account of what the proposed amendment would involve: [12], [17], [19].
The case may also be relevant where a party says that an appeal’s arguability should prevent dismissal for procedural delay. The Court’s answer was limited: potential arguability did not itself establish that the dismissal order was wrong, particularly where the earlier decision had not finally assessed the appeal’s merits and the procedural failures remained: [23]-[24].
The judgment should not be read as saying that every delay, every defective appeal notice, or every failure to comply requires dismissal. Its reasoning is grounded in the circumstances described in the record and the review threshold applied to the order under challenge. The Court emphasised the need to assess the actual basis for review, rather than treat the possibility of a different discretionary outcome as proof of error: [22], [25]-[26].
The supplied judgment does not cite any later court decision treating the 2026 judgment as precedent. It therefore does not provide a basis to say whether later courts have followed, distinguished, criticised or otherwise applied it.
The authorities identified within the judgment are earlier authorities. Collier v Lancer is cited for the legal threshold governing review under s 46(4): [21]. Lambourne v Baker (No 5) and Lambourne v Baker (No 6) are also mentioned in connection with that threshold: [21]. Those citations show the authorities Harrison AJA relied on in stating the review principles; they are not later treatment of the present judgment.
The judgment also reproduces parts of McHugh JA’s reasons and refers to material he relied on in deciding the original motions. Those passages explain the procedural history and the basis of the order under review. They should not be mistaken for later judicial treatment of Harrison AJA’s decision.
The judgment does not determine whether any of the appellants’ 106 grounds, or the 11 additional proposed grounds, would have succeeded on their merits. Harrison AJA expressly said that McHugh JA had not made a final assessment of the grounds: [23]. The review application was decided on the asserted errors in the dismissal decision, not on the substantive correctness of the underlying trial judgment.
The judgment also does not set out a numerical or categorical threshold for how many defaults, how much delay, or what degree of prejudice will justify dismissal in other cases. Its reasoning refers to the case-specific sequence of missed deadlines, repeated directions, absence of a satisfactory explanation, costs and prejudice: [23]-[26]. It does not say that any single one of those matters is invariably decisive.
Nor does the judgment decide that seeking trial audio recordings is never a satisfactory explanation for delay. The earlier reasons, as recounted at [17], treated the timing of the request and the lack of identified transcript gaps or proposed appeal grounds as relevant in this case. Harrison AJA’s review reasons focus on whether the appellants had shown error in the earlier decision, including its assessment of the evidence then available: [24].
Finally, the text supplied does not report any subsequent cases applying this judgment. Its future reach, including how later courts may treat its explanation of the relationship between “just”, “quick” and “cheap” under s 56(1), cannot be determined from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: S&P Gomes Pty Ltd t/as Cohuna Hotel Motel v Mohan Sundar t/as Sun Legal [2026] NSWCA 85
Hearing dates: 14 April 2026
Date of orders: 18 May 2026
Decision date: 18 May 2026
Before: Payne JA at [1]
Free JA at [2]
Harrison AJA at [3]
Decision: Dismiss the appellants’ notice of motion with costs.
Catchwords: CIVIL PROCEDURE – Court of Appeal – notice of motion seeking review of order of a single judge of appeal – whether appellants have identified an error of principle or how the decision is plainly wrong
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 61(3)
Evidence Act 1995 (NSW), s 136
Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 12.7, 13.4, 14.28, 36.16
Cases Cited: Collier v Lancer [2013] NSWCA 185
Lambourne v Baker (No 5) [2024] NSWCA 241
Lambourne v Baker (No 6) [2025] NSWCA 45
S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24
Category: Principal judgment
Parties: S&P Gomes Pty Ltd t/as Cohuna Hotel Motel (First Appellant)
Paul Gomes (Second Appellant)
Mohan Sundar t/as Sun Legal (First Respondent)
Gannawarra Shire Council (Second Respondent)
Representation: Counsel:
A Avery-Williams (First Respondent)
I Griscti (Second Respondent)
Solicitors:
Gilchrist Connell (First Respondent)
Minter Ellison (Second Respondent)
File Number(s): 2025/80991
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The appellants sued the respondents, respectively a firm of solicitors and a council, for losses alleged to have been suffered in connection with the purchase of a hotel property and business. On 7 February 2025, Cavanagh J found in favour of the first appellant against the first respondent and awarded $1,216,615.17 in damages. The first appellant’s claims were otherwise unsuccessful, and the second appellant’s claims failed entirely.
On 28 February 2025, the appellants filed their notice of intention to appeal. On 6 May 2025, the appellants filed their notice of appeal which contained 106 grounds. On 28 May 2025, the Registrar indicated that the current state of the notice of appeal was unsatisfactory and ordered the appellants to file an amended notice of appeal by 25 June 2025. The appellants did not comply with this order and continued at subsequent directions hearings to disregard orders made extending the time by which they should do so. On 5 December 2025, the respondents filed and served notices of motion seeking to dismiss the appellants’ notice of appeal for want of due despatch. On 9 December 2025, the second appellant filed and served a notice of motion seeking leave for the appellants to file and serve an amended notice of appeal within eight weeks.
All three notices of motion were heard by McHugh JA on 15 December 2025. His Honour dismissed the second appellant’s notice of motion with costs and ordered that the appellants’ notice of appeal be dismissed with costs.
The appellants filed a notice of motion on 5 January 2026 seeking to set aside McHugh JA’s order dismissing the appeal, for the appeal to be reinstated and for the time for filing and serving the amended notice of appeal to be extended.
The issue for determination was whether the appellants had identified an error of principle or demonstrated that McHugh JA’s decision was plainly wrong.
(1) The statement that one or some of the proposed 106 grounds of appeal may have been arguable was an indication that even in the case of a theoretically arguable appeal, there was a limit to which an appellant could repeatedly delay and fail to comply with court orders and directions without satisfactory explanation: at [23].
(2) McHugh JA’s statement that there was no reason to think that the appellants were any more likely to produce an amended notice of appeal than they had up until that point been able to provide, was based on the uncontradicted evidence of an unexplained failure to file the amended notice of appeal between 28 May 2025 and 8 December 2025: at [24].
(3) Accepting that the choice was binary, it was not an error of principle or plainly wrong for his Honour to exercise the available discretion to choose not to “make such order as the Court thinks fit”: at [25].
(4) The determination of whether a particular conclusion is “just” is a function of a number of things including whether it is quick and cheap: at [26].
Collier v Lancer [2013] NSWCA 185; Lambourne v Baker (No 5) [2024] NSWCA 241; Lambourne v Baker (No 6) [2025] NSWCA 45, applied.
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:
Pursuant to UCPR 36.16, the order made on 15 December 2025 dismissing the appeal be set aside.
The appeal be reinstated.
Pursuant to UCPR 1.12, the time for filing and serving the amended notice of appeal be extended from the date of the Court’s order on this notice of motion, or such other time as the Court considers appropriate.
The costs of this notice of motion be the costs in the appeal or otherwise reserved.
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.
(a) dismissed the second appellant’s notice of motion filed on 9 December 2025 with costs; and (b) ordered pursuant to UCPR 12.7 that the appellants’ notice of appeal be dismissed with costs.
“[22] It is important to note that the appellants have not proffered a form of amended notice of appeal. They do not put forward their Provisional Amended Notice of Appeal. Instead, they seek a further eight weeks in which to formulate a notice of appeal. There is no reason to think that they will then be in a better position to do so than they have been in the past. In light of the Provisional Amended Notice of Appeal that had been filed on 4 December 2025, there is no reason to think that any amended notice of appeal would reduce the number of grounds of appeal or otherwise rationalise the document. Instead, the appellants appear to be wishing to expand the grounds of appeal based on anything they may find in the course of listening to the audio recordings. In the absence of a document embodying the form of the amendment, or any submission as to what the amendment would involve, it is not possible to attribute any merit to any proposed amendment.
[23] A party seeking to amend must generally explain any delay in applying for amendment: see, Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2006] HCA 27 at [102]. Here the delay is substantial: it runs from 28 May not just until December 2025, but in effect into February 2026, given that the appellants seek a further eight weeks in which to prepare the amended notice of appeal.
[24] The only real explanation for the delay here relates to the appellants’ desire to obtain audio recordings of the trial. Those recordings could have been sought several months earlier than they were. Moreover, the appellants’ concern seems to be that there may be gaps in the existing transcripts of the hearing made by the court reporting staff. If any such gaps exist, they should have been readily identifiable after 28 November 2025 when, on the appellants’ own account, the second appellant was able to listen to the recordings. The appellants have not identified what they say is missing from the transcripts made by the court reporting staff, nor have they identified the ground of appeal that they are hoping to advance in light of the audio recordings. Instead, they appear to be engaged in a fishing expedition of some kind.
[25] The audio recordings are thus no answer to the delay since the directions hearing on 28 May 2025 in formulating a rationalised amended notice of appeal.
[26] On the other hand, the respondents are prejudiced by the ongoing delay in the failure to resolve this matter. They have incurred costs at a number of directions hearings and in much correspondence with the appellants which could have been avoided, and there is no reason to think that that will end in the foreseeable future.
[27] I do not consider it in accordance with the dictates of justice to grant leave to the appellants to amend, in particular in the absence of a draft amended notice of appeal. Accordingly, the appellants’ notice of motion filed 9 December 2025 is dismissed with costs.”
“[28] The appellants’ answer to the motions for dismissal was that they should be given another opportunity to amend, that is that their own application should be granted. That application has just been refused. The appellants did not otherwise make arguments in answer to those advanced on behalf of the respondents.
[29] Although the applications for dismissal were advanced on several different bases including summary dismissal pursuant to UCPR, r 13.4 (on the grounds the proceedings were frivolous or vexatious or an abuse of process), and striking out pursuant to UCPR, r 14.28 (on the assumption that a notice of appeal is a ‘pleading’, and on the ground that it causes prejudice, embarrassment or delay), both respondents acknowledged that their strongest case was pursuant either to r 12.7 (for want of due despatch) or s 61(3) of the Civil Procedure Act (for failure to comply with directions of the Court).
...
[31] Kirk JA recently summarised the principles applicable to the discretion to dismiss a proceeding under r 12.7 of the UCPR (which is available to this Court pursuant to r 51.1(3)) in Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75 at [55]-[56] as follows:
‘55. The discretion to dismiss a proceeding under r 12.7 of the UCPR is available to this Court pursuant to r 51.1(3) of the UCPR. Justice Walsh discussed the exercise of such a discretion in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534:
a balance must be struck between the plaintiff and the defendant and, in the end, “the court must decide whether or not on balance justice demands that the action should be dismissed”.
…
Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.
56. Those remarks have been referred to with approval by later decisions of this Court: see eg Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [40]. Thus the discretion should not be undertaken by reference to fixed formulae which limit the discretion to do what is just between the parties: note Stollznow at 753; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [50]-[51]. A factor potentially relevant is the claimant’s prospects of success: see eg Hoser v Hartcher [1999] NSWSC 527 at [29]. The matters identified in ss 56-60 of the Civil Procedure Act are relevant: eg Ghosh at [42]-[43].’
[32] I accept the respondents’ submission that there has been no progress of any substance in the matter since the directions hearing on 28 May 2025. There has been no amendment rationalising or reducing the grounds of appeal. The failure to make progress has occurred in circumstances where not only were many chances given to the appellants to amend the notice of appeal, they were in fact directed to do so and warned that their failure to do so would render the proceedings liable to dismissal. The repeated breaches of the Court’s directions are a significant discretionary factor in favour of granting the applications to dismiss for want of due despatch. So are the several warnings that were given to the appellants.
[33] I also accept the respondents’ submission that there is no satisfactory explanation for the delay for the reasons given above in relation to the appellants’ application to amend.
[34] I also accept that the respondents are exposed to prejudice by reason of that delay for the reasons already given.
[35] The second respondent submitted that I should take into account that the grounds of appeal do not appear strong. I accept that this is in principle a factor which is potentially relevant: see Allchin above. However, while it is true that many of the grounds of appeal do not on their face appear strong, I am not in a position on an application of this kind to form a view about the merits of 106 grounds of appeal, and I was not invited to do so. In the circumstances, the discretion should be exercised on the basis that the appellants would have at least some arguable points on appeal.
[36] Notwithstanding that I accept that the appeal may be arguable, I consider that the respondents’ motions to dismiss pursuant to r 12.7 should be granted.
[37] The power is to be exercised having regard to the dictates of justice, and in light of the matters identified in ss 56-60 of the Civil Procedure Act. Those provisions insist on the overriding purpose of the Act and the rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1). A prolix, imprecise, unfocused notice of appeal containing 106 grounds does not identify the real issues in dispute.
[38] Importantly, the elimination of delay is one of the central objects of the procedural regime: s 59. In the present case the delay in this Court is wholly attributable to the appellants; it is not satisfactorily explained; and there is no reason to think that it will improve in the foreseeable future. A point comes when an end must be brought to such delay. Today is that point.” [Emphasis in original.]
The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.
“An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal (s 19(2) of the Act and UCPR, r 51.2 and r 51.58). An applicant for review must show is that there has been an error of principle in the exercise of the power or that the decision was plainly wrong (Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchie’s Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure.
In Rinehart v Welker [2011] NSWCA 403, this Court noted, at [48], the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal’s order set aside (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14] and Lo v Iverarch [2009] NSWCA 92 at [29]).”
See also Lambourne v Baker (No 5) [2024] NSWCA 241 at [45] and Lambourne v Baker (No 6) [2025] NSWCA 45 at [56].
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.
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S&P Gomes Pty Ltd t/as Cohuna Hotel Motel
Mohan Sundar t/as Sun Legal
[2006] HCA 27
(2009) 239 CLR 175
(2015) 90 NSWLR 595
(1994) 35 NSWLR 726
The appellants’ notice of motion to set aside the dismissal order, reinstate the appeal and extend time was dismissed with costs.
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:
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.