Guha v Guha

[2021] NSWCA 245

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Guha v Guha [2021] NSWCA 245
Hearing dates:	11 October 2021
Date of orders:	11 October 2021
Decision date:	11 October 2021
Before:	Basten JA
Decision:	Dismiss the appellant’s notice of motion of 20 September 2021.
Catchwords:	PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36; Pt 6, Div 9
Category:	Procedural rulings
Parties:	Samadrita Guha (Applicant) Sreyashi Guha by her tutor Debadrita Guha (Respondent)
Representation:	Counsel: Applicant self-represented Solicitors: King Legal (Respondent)
File Number(s):	2021/234807
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2021] NSWSC 757 Date of Decision: 28 June 2021 Before: Parker J File Number(s): 2019/358479

Judgment

1. BASTEN JA: On 28 June 2021 Parker J delivered a judgment in the Equity Division dealing with a claim to ownership of a property the subject of a intra-family dispute: Guha v Guha (No 2) [2021] NSWSC 757. On 16 August 2021 the defendant in those proceedings, Samadrita Guha, filed a notice of appeal in this Court.

2. On 20 September 2021 the appellant filed a notice of motion seeking a referral for legal assistance under Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). That is the motion before the Court for determination.

3. The appellant also filed an affidavit executed on 15 September 2021. It will be appropriate to refer to certain matters by way of background to the proceedings, some of which may be gleaned from the affidavit, and some from the red appeal book, which includes the judgment of Parker J. Most of the matters were addressed by the appellant in oral submissions. I also note that the appellant advised that she was under a “mental health order”. However, in representing herself she was articulate and spoke in a clear manner. While there was no apparent need for the appointment of a tutor, the court should have a record of any order under the Mental Health Act2007 (NSW), presently in effect.

4. UCPR r 7.36 provides that the Court may make an order referring a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The rule provides that the court “may take into account”, (a) the means of the litigant, and (b) the capacity of the litigant to obtain legal assistance outside the scheme, and (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate: r 7.36(2). It will usually not be appropriate to make such a referral unless the court is satisfied that the litigant does not have the means to obtain and pay for the services of appropriate legal representatives, the matter is not one which is likely to be undertaken by a lawyer on a speculative basis, it is unlikely that legal assistance would be made available pursuant to other schemes, and the nature of the proceedings are such that the litigant would have difficulty presenting his or her case adequately without legal representation or, in relation to the last matter, the court is otherwise satisfied that legal representation would provide a significant benefit to the timely administration of justice, having regard to the interests of both parties and the court.

5. There is, however, a constraint on the power to refer a litigant for assistance. The court is required to be satisfied that there are “special reasons that justify” a further referral, where there has been a previous referral at any time during the preceding three years: r 7.36(2A).

6. In addition to the matters noted above, the court will be cautious in exercising the power to make a referral unless satisfied that the proceedings have a real prospect of success or, if it is not possible to assess such prospects, that a referral for investigation and advice may be warranted.

7. The parties to the dispute are two sisters. Their parents, Mr and Mrs Guha, owned a property at Marayong in north-western Sydney. The property was bought by them as joint tenants in 2002. Mr Guha died on 3 December 2017. Although the fate of the property may have been in doubt whilst there were disputes as to a will, the parties appear to have accepted by 2019 that Mrs Sreyashi Guha became the registered proprietor by survivorship. She was, however, by that time incapable of looking after her own affairs.

8. Whilst proceedings were on foot to arrange for the appointment of a guardian and financial manager, the appellant arranged for her mother to execute a transfer to her of a 50% interest in the Marayong property for no consideration. That transfer was registered. On 19 August 2019 it appears that the mother executed a second transfer, this time of the whole of her interest in the property to the appellant, again for no consideration. On 11 November 2019 the appellant became the sole registered proprietor.

9. Shortly thereafter, the appellant’s sister Debadrita Guha commenced proceedings as tutor for her mother who was the plaintiff in the court below and is the respondent in this court. These proceedings sought to have the transfers set aside and the property re-transferred to the mother, Mrs Guha.

10. On 2 February of this year, the appellant obtained a referral to the Registrar for referral to a lawyer on the pro bono panel for legal assistance. She obtained such assistance and was represented at proceedings before Parker J which took place in or about May 2021. As noted by the primary judge in his judgment of 28 June 2021:

“[30]   In April 2021 Samadrita’s lawyers withdrew her defence to the plaintiff’s claim, save for any admissions she had made. Her lawyers also sought to discontinue her cross-claim, but on terms that there be no order as to costs. Mrs Guha’s lawyers did not object to the discontinuance, but contended that Samadrita should pay Mrs Guha’s costs.”

11. The judge identified the issues for determination as limited to (1) whether Mrs Guha was entitled to the relief she claimed, and (2) a dispute as to the costs of the proceedings, including the cross-claim: at [32].

12. The primary judge was satisfied that the transfers had been obtained as a result of unconscionable conduct on the part of the appellant as transferee and made an order that she transfer the property to her mother. The judge also made an order that she pay her mother’s costs, to be assessed on the ordinary basis.

13. It is apparent from this background that the requirement for “special reasons” resulting from the referral for pro bono assistance earlier this year is engaged.

14. It is appropriate to consider next the nature of the proposed appeal. Although the proceedings purport to be an appeal from the judgment of Parker J of 28 June 2021, the appeal grounds do not address that judgment. They are as follows:

“1   The final order is not working out Annexure 1.

2   To apply mediation agreement orders

●   Defendant to transfer house to Plaintiff

●   Plaintiff to pay $20,000 to Defendant.”

The order sought in the appeal is “To apply the mediation agreement”.

15. The first purported ground may be understood as referring to the primary judge’s grant of liberty to apply with respect to the working out of the order for transfer of the property. The second purported ground and the order sought in the appeal refer to a “mediation agreement” to which no reference was made in the judgment below. The appellant states in her affidavit, a matter confirmed by a communication from her former solicitors, that a mediation was undertaken on 24 August 2020. It also appears, from the same sources, that an in principle agreement was reached but that no document was executed at that time. That was consistent with the submissions put to me today. The appellant stated that the agreement was that she would transfer the property to her mother, who would pay her $20,000. The appellant further stated in her affidavit that on an unidentified date in December 2020, “I made my final decision to go ahead with the mediation agreement” and sought to get in touch with her lawyer. The rest of the account given in the affidavit was directed to her difficulties in obtaining legal representation, given her financial circumstances.

16. I am satisfied that her financial circumstances are such that she is unable to afford to pay for legal assistance and, given the nature of the case, that legal assistance from other sources will be unobtainable.

17. The only available inference on the basis of this material is that no enforceable mediation agreement was reached. If there had been such an agreement, it might have formed the basis of a cross-claim below. In fact a cross-claim was filed in January 2020, but it sought an order that the property be sold with the proceeds to be divided equally between the appellant and her mother. Alternatively, she claimed a half-interest in the property as a result of contributions made by her: judgment at [25]. When represented by pro bono lawyers, the appellant, in April 2021, withdrew her defence and sought to discontinue her cross-claim. It may be assumed that, if she sought advice in relation to the mediation agreement, she was told that there was no enforceable agreement. In her affidavit, she stated that she had contact with her pro bono lawyers from 2 February 2021; the affidavit continued:

“I explained to the pro bono lawyers about the mediation agreement & they said they will take care of the matter in their way.”

18. In so far as the proposed appeal turns on an attempt to rely upon the mediation agreement, I am not satisfied that it has any prospects of success. Further, I am satisfied that the appellant had raised the question of the mediation agreement with her last pro bono lawyers and received appropriate advice. In these circumstances, I am not satisfied that there are any special reasons to make a further referral for pro bono legal assistance. Indeed, the circumstances are not such as to warrant a referral even if the “special reasons” criterion were not engaged.

19. The order of the Court is: dismiss the appellant’s notice of motion of 20 September 2021.

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Decision last updated: 11 October 2021