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[2026] ACTSC 92
General information, not legal advice.
Supreme Court of the ACT
2026-04-08
Muller AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Molonglo Construction Group Pty Ltd v Mehta and Mehta (No 2) Citation: [2026] ACTSC 92 Hearing Date: 08 April 2026 Decision Date: 08 April 2026 Before: Muller AJ Decision: (1) The defendants’ application is dismissed. (2) The defendants are to pay the plaintiff’s costs of the application. (3) Such costs will not be due and payable until the conclusion of the proceedings.
Catchwords: CIVIL LAW – DISCOVERY – Application for the production of further documents – reliance on affidavit evidence – where issues raised not dealt with in pleadings – where discovery to date is not inadequate – application dismissed
Legislation Cited: Building Act 2004 (ACT) Court Procedures Rules 2006 (ACT), rr 606(6), 502 Cases Cited: Cossey v Canberra Airport Pty Ltd [2022] ACTSC 70 Talada Investments v Rovera Scaffolding [2017] ACTSC 160 Parties: Molonglo Construction Group Pty Ltd (Plaintiff) st Vishal Mehta (1 Defendant) nd Rashmi Mehta (2 Defendant) Representation: Counsel K. Sullivan (Plaintiff) Self-represented (Defendants) Solicitors Sullivans Legal Co (Plaintiff) Self-represented (Defendants) File Number: SC 206/2025 SC 101/2025 MULLER AJ: EX TEMPORE REASONS (REVISED)
The dispute between the parties
The substantive dispute between the parties arises out of the construction of two residential dwellings in Canberra at Whitlam and Denman Prospect respectively. In each case, the plaintiff was the builder, and the defendants are the property owners. There are separate proceedings in relation to each of the properties and they are to be heard together pursuant to a previous order of this court.
The defendants are self-represented litigants.
The application for further discovery
The application before me today relates primarily to the adequacy of discovery provided by the plaintiff in each of the proceedings. The defendants move on an application in proceeding lodged on 30 January 2026 and seek to read an affidavit of Vishal Mehta, the first defendant, affirmed on that date. The defendant seeks discovery of documents in five specified categories.
As to the affidavit evidence, the authorities make clear that the sufficiency or otherwise of discovery is not to be determined on the basis of a contentious affidavit. Rather, insufficiency of discovery might be demonstrated from the pleadings, the affidavit of documents itself, or from some other source that may constitute an admission of the existence of discoverable documents. In this regard, see Cossey v Canberra Airport Pty Ltd [2022] ACTSC 70, and Talada Investments v Rovera Scaffolding [2017] ACTSC 160 and the authorities cited therein.
The breadth of discovery is also constrained by that which is or may be relevant to a fact in issue in the proceedings. Rule 606(6) of the Court Procedures Rules 2006 (ACT) provides that 'an affidavit must not be used for an application for an order under this rule unless the court otherwise orders'. Rule 606 permits the court to make orders limiting a party's duty of disclosure or an order for a party to disclose discoverable documents. The constraint on the use of an affidavit in support of an application under r 606 appears to be premised on the restrictions referred to in the authorities I have identified above. The use to be made of Mr Mehta’s affidavit
A review of the affidavit affirmed by Mr Mehta demonstrates it to be in large part in the nature of submissions made in support of the application. I therefore give leave for it to be received on the application, on the basis that its use will be limited to the purpose of providing submissions and not as evidence of the insufficiency of discovery that has already been provided.
Is there a proper basis for additional discovery?
Dealing with the various categories of discovery referred to in the application: (a) A, deals generally with subcontractor and supplier receipts and bank transaction records evidencing payments. The request is based on an expressed desire to determine whether there has been some form of overcharging or double-dipping in the charges that have been made by the plaintiff that are in dispute. The defendants seek to test whether the sums constitute a variation to the original contract price or are sums properly charged as part of the fixed price contract. The difficulty with this category is the defence in each case fails to raise an allegation of double-charging or overcharging in the sense described in submissions, both written and oral, before me. In the absence of a pleaded claim to the effect that there has been overcharging on the part of the plaintiff, or double-charging, I am not satisfied there is a relevant basis to require the production of the identified financial records. (b) B, deals with schedules of materials and quantities, purchase orders and delivery dockets required to establish a verified cost baseline. This category appears to be directed towards establishment of a baseline for the purpose of obtaining a “top-down audit” and, in turn, for procuring expert evidence directed both to the double charging issue and the quantum meruit claim the plaintiff makes in the alternative. The same difficulty arises in relation to this category. There is no relevant pleaded defence asserting double charging. On the contrary, the defence asserts the variations claimed were simply not agreed. As to what may be required for the purposes of procuring expert evidence, the defendants have not placed before the court any evidence to the effect that an expert has been engaged and has requested the identified categories of documents to enable them to provide an opinion to support the defences pleaded. In the absence of such evidence, I am not satisfied a proper basis for this category of further discovery is established. (c) C, concerns site diaries, journals and attendance logs and D, seeks a list of projects managed by Parminder Bhagria (the wife of the director of the plaintiff company), together with details of project contracts cited in the plaintiff’s evidence to verify professional experience and credit. Those categories are directed to a challenge to the adequacy of supervision of the building works. As the plaintiff has identified in its submissions, in neither of the defence pleadings is an allegation about the adequacy of supervision of the works raised, nor any allegation of any relevant breach of the requirements of the Building Act. In the absence of a contention raised by the defence pleadings leading me to conclude the subject category of documents has some relevance to the dispute between the parties, and in the absence of any suggestion from the discovered material itself that such relevance arises, I am not satisfied a need for this category of discovery is made out. (d) E, deals with trade certificates, compliance certificates, statements of compliance and associated documents corresponding with various trades used on the subject works. Some documents in this category have already been discovered. On the basis of submissions made today, the defendant’s examination of the documents previously discovered may not have identified these particular documents, or they may in part be documents that are already in the defendant’s possession. In either event, their request for discovery falls foul of the same difficulty I have identified in the other categories sought.
I am unable to conclude on the basis of any contention in the affidavit of Mr Mehta that the discovery provided to date is inadequate. The defendants have not otherwise demonstrated from an examination of their defence as presently pleaded, or the discovery itself that the categories of further discovery now sought are warranted.
For the reasons given above, it is not appropriate to make an order for further discovery at this time, and as a consequence it is not appropriate to make an order of the kind contemplated in paragraph 2 of the defendants’ application.
Expert evidence
The Defendants also seek an order for leave to serve additional expert evidence. I understand the defendants’ position to be there has been some dialogue with experts perceived to be able to assist the defendants’ case, but no report or no additional report has presently been received. In the circumstances, it would be premature to make any orders regarding leave to rely upon supplementary expert evidence. Amendments to the Defences
Based on the submissions I have received from the defendants, I am satisfied the most appropriate next step in the proceedings is for the defendant to assess and determine whether they wish to make an application to amend their defences and counterclaims in either or both of the proceedings. At this stage of the legal process, any such application will require the leave of the court.
Rule 502 of the Court Procedures Rules 2006 (ACT) empowers the court to give leave to amend a pleading at any stage of a proceeding. Amendments should clearly be made at the earliest possible time, but the guiding principle in respect of any such application is for the court to assess whether the amendment is appropriate so as to do justice between the parties. In that regard, I simply note that if an amendment to the pleaded defences is appropriate to do justice between the parties, a consent approach to any application for leave is to be encouraged.
Orders
I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 14 April 2026
Molonglo Construction Group Pty Ltd
Mehta and Mehta