S & P Gomes v Gannawarra Shire Council [2026] VCC 273

Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2025] VSCA 290

Shellard v Orlanski [2001] VSCA 147

Ruling: Proceeding dismissed for want of prosecution. Plaintiff to pay the defendant's costs of the proceeding.

1. This is an application by the defendant to dismiss the proceeding for want of prosecution.
2. The plaintiff, S & P Gomes Pty Ltd, owns and operates a motel, hotel and bottle shop. It alleges that the defendant, the Gannawarra Shire Council, was responsible for the footpath and nature strip adjoining its property.
3. The plaintiff alleges the defendant removed two trees from the nature strip without removal of their root systems. It says the defendant was negligent in failing to remove the tree root systems, which caused damage to its property.

1. This proceeding was issued on 2 November 2020.
2. The defendant has been represented by Minter Ellison since on or around 9 November 2020.
3. On 20 January 2021, Judicial Registrar Gurry made initial timetabling orders including:

(a) The plaintiff file and serve particulars of loss with supporting documentation by 19 March 2021;

(b) Parties file and serve supplementary expert reports by 25 June 2021; and

(c) Parties mediate the dispute by 30 July 2021.

1. On 5 April 2021, Judicial Registrar Gurry made orders extending the litigation timetable:

(a) The plaintiff file and serve particulars of loss with supporting documentation by 16 April 2021;

(b) Parties file and serve expert reports by 25 June 2021;

(c) Any supplementary reports be served by 23 July 2021; and

(d) Parties mediate the dispute by 27 August 2021.

1. Mr Benjamin Knight, solicitor for the defendant, has sworn a number of affidavits detailing the progression of this proceeding. These affidavits are each referred to below and were affirmed on 4 April 2023, 30 May 2023, 25 March 2024 and 12 January 2026.
2. In his affidavit affirmed 4 April 2023, Mr Benjamin Knight, solicitor for the defendant, deposed that on 5 July 2021 the defendant's solicitors had a telephone conversation with the plaintiff's solicitor regarding the litigation timetable. The plaintiff had not served an affidavit of documents or produced profit and loss statements and the plaintiff's solicitor indicated that an extension of the deadline for those documents would be sought.[1]
3. On 26 August 2021, Mr Knight had a further telephone conversation with the plaintiff's solicitor regarding an extension of the litigation timetable, during which it was indicated that consent orders would be prepared.[2] In a further conversation on 27 August 2021, the possibility of early mediation was discussed.[3]
4. On 27 August 2021 Judge Ginnane extended the litigation timetable and ordered that:

(a) The plaintiff file and serve an affidavit of documents by 8 October 2021;

(b) The plaintiff file and serve particulars of loss with supporting documentation by 5 November 2021;

(c) Parties file and serve all expert reports as to liability and damages by 26 November 2021; and

(d) Parties mediate the dispute by 28 January 2022.

1. At that hearing, the plaintiff's solicitor indicated an intention to appoint a town agent.
2. In his affidavit affirmed 25 March 2024, Mr Knight deposed that the plaintiff did not serve an affidavit of documents by 8 October 2021 or particulars of loss by 5 November 2021. On 6 December 2021, the defendant received an email from the plaintiff's solicitor serving a document described as a "Schedule of Loss and Damages", following which the defendant requested updated financial documents for the years 2019, 2020 and 2021.[4] On 10 December 2021 the defendant received an email from the plaintiff's solicitor serving an affidavit of documents dated 7 December 2021, which had not been filed with the Court.[5]
3. On 14 February 2022, Mr Knight had a telephone conversation with the plaintiff's solicitor concerning the administrative mention listed for 15 February 2022, during which the solicitor for the plaintiff indicated that he was unfamiliar with the current orders and requested a copy.[6] In a further conversation on 15 February 2022 concerning proposed consent orders, the plaintiff's solicitors indicated that they wished to obtain a "fresh" expert report and agreed to mediate before 15 July 2022.[7]
4. On 2 March 2022, Judge Pillay amended the litigation timetable and ordered that:

(a) Parties file and serve expert reports by 15 April 2022;

(b) Supplementary reports be served by 13 May 2022; and

(c) Parties mediate the dispute by 15 July 2022.

1. Mr Knight deposed that on 5 July 2022, he emailed the plaintiff's solicitor requesting an update and noting the requirement to mediate by 15 July 2022. Follow-up emails were sent on 18 and 22 July 2022.[8]
2. On 26 July 2022, the plaintiff's solicitors telephoned Mr Knight regarding the administrative mention listed for 29 July 2022, indicating they were unaware of the listing and that the plaintiff "just wanted to get a hearing date".[9]
3. The plaintiff's solicitor contacted Mr Knight on 29 August 2022, after receiving a directions hearing application form, indicating that they needed to review their expert reports, update advice to the plaintiff and obtain instructions.[10]
4. Further telephone discussions occurred on 30[11] and 31 August 2022, concerning proposed consent orders and the scheduling of mediation.[12]
5. On 31 August 2022, Judicial Registrar Gurry amended the litigation timetable and ordered that:

(a) Parties mediate the dispute by 31 October 2022; and

(b) the proceeding be listed for a directions hearing on 29 November 2022.

1. Mr Knight deposed that on 17 November 2022, he emailed the plaintiff's solicitors, reminding them of the upcoming directions hearing and requesting that a mediation date be arranged.[13]
2. Mr Knight received a telephone call from the solicitor for the plaintiff on 28 November 2022, who indicated that the plaintiff's director was "resisting a mediation".[14] During that conversation, Mr Knight informed the plaintiff's solicitor that the plaintiff's schedule of loss and damage remained incomplete.[15]
3. At a directions hearing on 29 November 2022 Judicial Registrar Gurry ordered:

(a) The trial be listed for 26 June 2023 before a judge sitting alone; and

(b) Parties mediate the dispute by 28 February 2023.

1. Mr Knight deposed that on 7 December 2022 he had a telephone conversation with the plaintiff's solicitor during which the parties agreed to mediate by 28 February 2023. The solicitor for the plaintiff requested that the defendant pay the mediator's costs, which the defendant declined.[16]
2. The defendant made several attempts to confirm a mediation date, including telephone calls on 27 January and 3 March 2023 and emails sent on 1 and 16 February 2023, which went unanswered.[17] On 3 February 2023, Mr Knight confirmed with the mediator and the plaintiff's solicitor that the mediation would not proceed as no confirmation was provided and his client had become unavailable.[18]
3. On 17 February 2023, Mr Knight had a conversation with the plaintiff's solicitor during which he requested further availability for mediation. The plaintiff's solicitor indicated he would revert with proposed dates.[19]
4. On 31 March 2023, Mr Knight received a telephone call from the plaintiff's solicitor in which the solicitor requested an adjournment of the upcoming directions hearing on the basis that Mr Gomes had suffered a "medical incident".[20]
5. There was no further contact from the plaintiff's solicitor until an email was sent to the Court on 4 April 2023.[21] In that email, the solicitor advised that the mediation scheduled for 28 February 2023 had not proceeded and that on 7 March 2023 Mr Gomes had collapsed due to an episode of syncope. The solicitor stated that Mr Gomes' General Practitioner had advised Mr Gomes not to discuss the proceeding due to the risk of further episodes of syncope, that Mr Gomes had been referred for psychiatric or psychological treatment for major depression and indicated that the plaintiff may seek to vacate the hearing, listed for 26 June 2023, pending medical advice.[22]
6. At a directions hearing on 5 April 2023, Judicial Registrar Gurry ordered that:

(a) The proceeding be listed for an administrative mention on 15 May 2023;

(b) A judicial mediation be conducted on 22 May 2023 before Judicial Registrar Bales;

(c) The plaintiff pay the judicial mediation fee by 17 May 2023; and

(d) Any material for the mediator be provided by 17 May 2023.

1. Mr Knight deposed that on 12 May 2023, he emailed the plaintiff's solicitor seeking confirmation that the plaintiff would attend the judicial mediation.[23] On 15 May 2023, the plaintiff's solicitor informed the Court and the defendant that Mr Gomes was suffering from illness but later that day indicated that he was able to attend the mediation.[24] On 17 May at 3:15pm, the Court emailed parties acknowledging receipt of the defendant's court book and inquiring whether the defendant intended to file an opening statement. At 3:30pm the same day, the defendant confirmed it would file an outline before 19 May 2023.[25]
2. On 19 May 2023 the defendant emailed the Court to confirm whether judicial mediation would proceed virtually or in person and the Court confirmed an in-person mediation at 11:00am. At 12:00pm, the defendant emailed its opening statement for the mediation to the Court and the plaintiff's solicitors. That afternoon, the Court requested the plaintiff file its submissions as soon as possible. At 3:59pm, the plaintiff's solicitor replied stating that there had been a miscommunication regarding Mr Gomes' availability and that he was experiencing throat pain caused by a fish bone, which made it difficult for him to speak. The solicitor indicated that Mr Gomes might seek to vacate the mediation and stated the parties were "too far apart to settle". The solicitor also indicated the plaintiff's submissions would be provided over the weekend.[26]
3. On 22 May 2023 at approximately 9:15am, the solicitor for the plaintiff emailed the Court and the defendant to advise that Mr Gomes was unable to attend judicial mediation as he could not speak or give instructions and requested that the mediation be adjourned or that the matter proceed directly to hearing. At approximately 9:16am, the plaintiff's solicitor sent further emails attaching screenshots of medical records, including a record of a teleconsultation with a general practitioner and a record from Western Health Emergency Department indicating that Mr Gomes had presented to Sunshine Hospital on 19 May 2023 with symptoms including a sore throat, pain on swallowing and a hoarse voice due to a suspected fish bone injury.[27]
4. On the same day at 9:37am, Mr Knight emailed the Court and the solicitor for the plaintiff confirming that the defendant was ready to proceed with mediation but would consent to an adjournment, requesting that the plaintiff indicate Mr Gomes' availability for a future mediation date. At 10:32 am, the plaintiff's solicitor confirmed via email that Mr Gomes agreed to reschedule the mediation and sought to arrange a date within three weeks, which the defendant accepted. At 11:10 am, the Court advised that the judicial mediation could not proceed and listed the matter for directions before Judicial Registrar Gurry on 31 May 2023.[28]
5. On 30 May 2023, the defendant applied to have the proceeding dismissed.[29]
6. On 31 May 2023, Judicial Registrar Gurry heard and refused the defendant's application but vacated and relisted the trial date for 16 November 2023. The Court further ordered that the parties mediate the dispute by 28 September 2023, failing which the proceeding would stand dismissed unless the plaintiff applied to vacate the mediation date.
7. The parties attended mediation on 28 September 2023. The proceeding did not resolve.
8. On 7 November 2023, the solicitors for the plaintiff emailed the Court and the defendant indicating their intention to make an application to cease to act.[30]
9. On 8 November 2023, Judicial Registrar Gurry made orders granting leave for the plaintiff's solicitors to cease acting, vacating the trial listed on 16 November 2023 and transferring further management of the proceeding to Judge Tran.
10. At a directions hearing on 30 November 2023, Judge Tran ordered:

(a) The plaintiff file a notice of appointment of solicitor by 29 January 2024 or alternatively apply for leave to be represented by a person other than a solicitor;

(b) A judicial mediation be listed for 19 April 2024; and

(c) The proceeding be listed for trial on 16 July 2024.

1. On 25 January 2024 the defendant was served with a Notice of Solicitor Acting from Davies Moloney.[31]
2. At a directions hearing before Judge Tran on 5 February 2024, the plaintiff's solicitors indicated that they intended to seek leave to cease acting. On 26 February 2024, Davies Moloney informed the Court and the defendant that counsel had advised the action should not be pursued and that they were unable to continue acting for the plaintiff.[32]
3. On 1 March 2024, Judge Tran made orders vacating the judicial mediation listed for 19 April 2024, listing a directions hearing for that date and directing that any application by the defendant for summary judgment or dismissal be filed by 25 March 2024.
4. On 4 March 2024, her Honour granted leave for Davies Moloney to cease acting and removed them from the record as solicitors for the plaintiff. On 18 and 19 March 2024, emails were received by the Court and the defendant from Mr Gomes, some of which, the defendant says, contained privileged and without prejudice material.[33]
5. On 25 March 2024, the defendant made a second application to dismiss the proceeding for want of prosecution and failure to comply with orders of the Court.
6. On 6 May 2024, Judge Tran heard and refused the defendant's application, vacated the trial listed for 16 July 2024 and stayed the proceeding until 5 May 2025. Her Honour further ordered that, by 4:00pm on 6 May 2025, the plaintiff was to file and serve a notice of appointment of solicitor, failing which the proceeding would stand dismissed with costs.
7. On 11 March 2025, Mr Gomes emailed the Court's self-represented litigant case manager stating that he had decided to represent himself, and attaching invoices and other documents relating to his former solicitors. On 20 April 2025, he emailed the Court attaching an affidavit and transcript from separate proceedings he had commenced against the defendant in the New South Wales Supreme Court and referred to matters of conspiracy. One attachment contained "without prejudice" correspondence, and on 23 April 2025, the defendant's solicitors notified the Court of that issue. On 24 April 2025, the Court advised the parties that, as Mr Gomes did not have leave to represent the plaintiff, any emails from him would not be placed on the Court file.
8. On 30 April 2025, the defendant was served with a Notice of Solicitor Acting from SR Lawyers.[34] Accordingly the matter was not dismissed pursuant to the orders of Judge Tran. However it had taken the plaintiff nearly a full year to appoint a solicitor on the record.
9. Despite a solicitor acting for the plaintiff, no steps were taken by the plaintiff to progress the matter.
10. On 31 October 2025, Mr Knight wrote to SR Lawyers noting that no contact had been received since their notice of solicitor acting, to which SR Lawyers replied on 14 November 2025, stating they were still reviewing the matter and required further time.[35] On 25 November 2025, the defendant was served with a Notice of Solicitor Ceasing to Act.[36]
11. On 29 November 2025, Mr Gomes emailed the Court and the defendant's solicitors stating that he would conduct the case as a self-represented litigant.[37]
12. Mr Gomes had been informed on numerous occasions by Judge Tran that the plaintiff was required to seek leave of the Court if it sought to be represented other than by a solicitor. As at 12 January 2026, no application supported by affidavit had been filed seeking leave for a person other than a solicitor to represent the plaintiff in the proceeding.[38]
13. On 23 December 2025, the defendant filed this application for dismissal of the proceeding.

1. The Court has inherent jurisdiction to dismiss a proceeding for want of prosecution, a power also reflected in r24.05 of the County Court Civil Procedure Rules 2018. The jurisdiction forms part of the Court's authority to control its own processes and to ensure that proceedings which are not prosecuted with reasonable diligence do not remain indefinitely on the Court's list.[39]
2. The Civil Procedure Act 2010 (Vic) requires the Court to have regard to the efficient conduct of its business, efficient use of resources, to minimise delay and to determine proceedings in a timely fashion.[40]
3. The discretionary power to dismiss a proceedings for want of prosecution should be exercised sparingly and in circumstances where there has been inordinate and inexcusable delay.[41]
4. In Bishopsgate Insurance Australia v Deloitte Haskins & Sells,[42] the Full Court adopted the principles articulated by Lord Griffiths in Chris Smaller (Transport) v Eddy:[43] dismissal may be ordered where there has been intentional and contumelious default, including disobedience to a peremptory order or conduct amounting to an abuse of process. Alternatively, dismissal may be warranted where there has been inordinate and inexcusable delay on the part of the plaintiff which has caused, or is likely to cause, serious prejudice to the defendant, including a substantial risk that a fair trial is no longer possible.[44]
5. Delay includes a failure to prosecute a proceeding in a manner that enables interlocutory steps to be completed within a reasonable time and does not necessarily require complete inactivity.[45] The Court must consider the nature and extent of the delay and the delay attributable to the plaintiff not simply the passage of time.[46]
6. Prejudice may be inferred from the circumstances, including where delay exposes the defendant to the continuing burden of litigation or threatens the fairness of a future trial.[47]
7. The Bishopsgate principles provide important guidance but the question remains whether, in all the circumstances, the justice of the case requires dismissal.[48]

(a) Whether the conduct of the plaintiff in the prosecution of the proceeding warrants dismissal;

(b) Whether any delay or non-compliance has caused prejudice to the defendant; and

(c) Whether it is in the interests of justice that the proceeding be dismissed, or alternatively disposed of summarily, and what orders should be made as to costs.

1. The defendant submits that the proceeding should be dismissed for want of prosecution or in the alternative, summarily.
2. The defendant relies on the affidavits of Mr Benjamin Knight affirmed on 4 April 2023, 30 May 2023, 25 March 2024 and 12 January 2026 together with oral submissions made at the summons hearing on 29 January 2026.
3. The defendant submits:

(a) that the history of the proceeding demonstrates inordinate and inexcusable delay; the proceeding was commenced and remains unresolved several years later;

(b) there have been numerous extensions of mediation dates and other interlocutory steps which have prevented the proceeding from progressing to trial within a reasonable time;[49]

(c) the plaintiff has failed to provide timely updates regarding the conduct of the proceeding and requests for updates have gone unanswered or been addressed only after delay[50];

(d) the plaintiff has failed to provide material, including medical records or reports concerning Mr Gomes' ability to give instructions and submissions prepared for mediation;[51]

(e) the plaintiff has still not properly particularised its claim. In particular, the plaintiff's schedule of loss has not been updated since December 2021 and financial records have only been produced up to 2018;[52]

(f) he plaintiff has failed to provide further expert material despite being granted extensions;[53]

(g) the plaintiff has not complied with Court orders requiring the filing of a notice of appointment of solicitor or an application to appear otherwise than by solicitor[54];

(h) after appointing a solicitor on 20 April 2025, no meaningful steps were taken in the proceeding for approximately six months. After which time that solicitor went off the record;[55]

(i) it has incurred increased costs associated with the protracted litigation;[56] and

(j) two former employees who may be relevant witnesses are no longer employed by the defendant and the passage of time may make their cooperation more difficult.[57]

1. The plaintiff relies on the affidavit of Mr Paul Gomes sworn on 16 January 2026 and written submissions filed on 27 January 2026.
2. The plaintiff submits that:

(a) The defendant's application should be dismissed;[58]

(b) The proceeding was not dismissed by operation of the 6 May 2024 orders as a notice of solicitor acting was filed on 30 April 2025, and the condition precedent to dismissal did not arise;[59]

(c) It has complied with all operative court orders and denies any characterisation of non-compliance;[60]

(d) Any delay can be explained by changes in legal representation, health issues affecting its director and financial hardship and does not amount to contumelious conduct or an abuse of process;[61]

(e) The defendant has not established prejudice sufficient to justify dismissal and retains access to contemporaneous council records and internal documents;[62]

(f) The proceeding has real prospects of success, relying on pleaded causes of action in negligence and nuisance arising from council-planted trees and the alleged failure to remove root systems;[63] and

(g) Other proceedings involving the plaintiff or its director are irrelevant and do not justify dismissal.[64]

1. The plaintiff also sought the Court's indulgence to continue the proceeding as a person other than a solicitor but made no formal application and provided no evidence to support this application.[65]
2. At the hearing of the summons on 29 January 2026, Mr Gomes submitted that his daughter, Ms Anna Gomes, had recently been appointed as a director of the plaintiff and would assume carriage of the proceeding on its behalf.[66]
3. He further submitted that the plaintiff also intended to retain solicitors and that Ms Gomes would liaise with those solicitors in the conduct of the proceeding. He stated that a meeting with a solicitor had been arranged for later that day.[67]

1. There has been a demonstrated pattern of delay and non-compliance by the plaintiff.
2. There were multiple ordered mediation deadlines:

(a) Mediation required by 30 July 2021;

(b) Mediation required by 27 August 2021;

(c) Mediation required by 28 January 2022;

(d) Mediation required by 15 July 2022;

(e) Mediation required by 31 October 2022;

(f) Mediation required by 28 February 2023;

(g) Judicial mediation listed for 22 May 2023, which was vacated;

(h) Mediation required by 28 September 2023, which proceeded on that date but did not resolve; and

(i) Judicial mediation listed for 19 April 2024, which was vacated on 1 March 2024.

1. The litigation timetable was formally amended on at least the following occasions:

(a) 5 April 2021;

(b) 27 August 2021;

(c) 2 March 2022;

(d) 31 August 2022;

(e) 29 November 2022;

(f) 5 April 2023;

(g) 31 May 2023;

(h) 8 November 2023;

(i) 30 November 2023;

(j) 1 March 2024; and

(k) 6 May 2024.

1. This amounts to at least eleven formal amendments to the timetable or substantive case management interventions, in addition to informal extensions and repeated correspondence seeking compliance.
2. There were repeated instances of non-compliance, including:

(a) Failure to serve affidavit of documents due 8 October 2021;

(b) Failure to provide complete particulars of loss due 5 November 2021;

(c) Failure to update schedule of loss after December 2021;

(d) Failure to produce financial records beyond 2018;

(e) Failure to serve further expert material despite extensions; and

(f) Failure to comply with Order 3 by 18 March 2024 and then 17 April 2024.

1. Three firms of solicitors have gone on the record and have all ceased to act. The change of solicitor does not adequately explain the lack of progress during periods the plaintiff was represented.[68] Nor is it reasonable for a plaintiff rely on a change of solicitors as a justification for continual delay.
2. Although the plaintiff says it is not responsible for any delay caused by any failure of the solicitors to comply with Court orders, the plaintiff has put on no evidence of instructions it gave that were not acted on, or attempts it had made to ensure that orders were complied with and that the matter progressed.
3. The delay has caused prejudice:

(a) The defendant has not been able to properly understand and prepare for the case in the absence of updated financial records and a properly particularised schedule of loss;[69]

(b) Additional costs have been incurred as a result of the repeated delay and non-compliance;

(c) Expert reports will likely require updating due to the passage of time[70] which will incur further additional cost; and

(d) Witnesses are likely to be less available, and their memories are likely to be impacted by the passage of time.

1. The defendant continues to be kept at risk in respect of the subject matter of the litigation. This is contrary to its and the public's interest in the reasonably prompt determination of legal proceedings.
2. I am satisfied that the plaintiff has failed to prosecute the proceeding with diligence, promptness and efficiency. I am satisfied that there has been prejudice to the defendant as a consequence. While a fair trial may still be possible, I must consider all the circumstances of the case in deciding whether to exercise my discretion to dismiss the proceeding.
3. Despite Mr Gomes' submission that he was about to see a solicitor on the very afternoon that the application was heard, there was no evidence to support that claim, and no application for leave for the plaintiff to be represented other than by a solicitor, despite orders requiring such an application to be made.
4. Having read the orders and the Other Matters set out in those orders made by Judge Tran in this proceeding, I have no doubt that Mr Gomes well understood the requirement to appoint a solicitor or make an application.
5. There was no documentary or affidavit evidence that Mr Gomes' daughter has been appointed as a director of the plaintiff and can make decisions for the plaintiff about the litigation. However, even if there were such evidence, the history of this matter gives me little confidence that the plaintiff will comply with orders and prosecute the matter.
6. The Court and the defendant have provided numerous indulgences to the plaintiff, on the basis that its director, Mr Gomes, has health or other difficulties and on the basis that it has not had solicitors acting for periods. The Court has dismissed two previous applications to dismiss the proceedings to allow the plaintiff further opportunities to progress the litigation. Those indulgences have, ultimately, been to no avail. The matter has not progressed.
7. At some point, it can no longer be in the interests of justice for the Court to continue to allow a plaintiff to take up Court resources, impose costs on a defendant and cause prejudice to the trial of a matter by continual delay and non-compliance. The Court must be fair to both parties. Dismissing a proceeding is a step of last resort. The history of this matter satisfies me that, in this case, it is an appropriate step.
8. Accordingly, the defendant's application for the proceeding to be dismissed for want of prosecution is granted.
9. The plaintiff is to pay the defendant's costs of the proceeding.

[1] Affidavit of Benjamin Knight affirmed 4 April 2023 ("BK 4/4/23") [11].

[4] Affidavit of Benjamin Knight affirmed 25 March 2024 ("BK 25/3/2024") [13].

[22] Affidavit of Benjamin Knight affirmed 30 May 2023 ("BK 30/5/23") at [29]; BK 25/3/24 at [34].

[23] BK 30/5/23 at [32]; BK 25/3/24 at [36]

[34] Affidavit of Benjamin Knight affirmed 12 January 2026 ("BK 12/1/26") [31].

[39] Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 182.

[40] Pentridge Village [2025] VSCA 290 at [84]; see also Hunter Stone [2018] VSC 261 [16]-[17].

[41] Hunter Stone Pty Ltd v Mortazavi [2018] VSC 261 at [16]- [17].

[42] (1999) 3 VR 863 ("Bishopsgate").

[43] [1989] 1 AC 1197.

[44] Bishopsgate at [25]; Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2025] VSCA 290 at [72]- [83].

[46] Shellard v Orlanski [2001] VSCA 147 at [28].

[48] Bishopsgate at [28]; Pentridge Village [2025] VSCA 290 at [71]).

[49] Transcript ("T") 21 Line ("L") 28 - T 22 L 10.

[51] T 11 L 15-22; T 22 L 26-31; T 23 L 5-13; BK 30/5/23 at [33].

[53] T 24 L 14-17; BK 25/3/24 at [65].

[54] T 24 L 18-23; BK 12/1/26 at [7], [13].

[58] Paul Gomes Written Submissions filed 27 January 2026 ("PGS 27/1/26").