//
[2025] ACTSC 235
General information, not legal advice.
Supreme Court of the ACT
2025-06-06
Muller AJ
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
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 v Mehta Citation: [2025] ACTSC 235 Hearing Date: 4 June 2025 Decision Date: 6 June 2025 Before: Muller AJ Decision: See [30] Catchwords: CIVIL LAW – PRACTICE AND PROCEDURE – removal of proceedings to Supreme Court – application for proceedings to be consolidated or heard together – whether appropriate matters to consolidiate Legislation Cited: Court Procedures Rules 2006 (ACT), rr 270, 1432, 1707, 1725 Magistrates Court Act 1930 (ACT), s 270 Cases Cited: Lew v Priester [2012] VSC 57 Piscioneri v Brisciani and Reardon [2017] ACTSC 237 The Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439
Parties: Molonglo Construction Group (Plaintiff) Vishal Mehta (First Defendant) Rashmi Mehta (Second Defendant) Representation: Counsel A Costin (Plaintiff) Self-represented (First and Second Defendants) Solicitors Sullivans Legal Co (Plaintiff) Self-represented (First and Second Defendants) File Number: SC 101 of 2025 MULLER AJ: Introduction
By its application lodged on 1 April 2025, the plaintiff seeks removal of proceedings CS 1/2025 (the Magistrates Court proceedings) from the Magistrates Court to the Supreme Court.
Further, it seeks, pursuant to r 270 of the Court Procedures Rules 2006 (ACT) (the CPR), that the Magistrates Court proceedings be consolidated, or alternatively heard together, with these Supreme Court proceedings.
Each of the proceedings involve the same parties in a dispute arising out of separate contracts for the construction of residential properties. The Magistrates Court proceedings relate to a property constructed in Denman, and these proceedings concern a residential property constructed in Whitlam.
Although the Denman property is owned by both defendants, whereas the Whitlam property is solely owned by Mr Vishal Mehta (the first defendant), both defendants are named as parties in each of the building contracts and both defendants are signatories to each of the contract documents.
It is agreed by all parties that both defendants and the director of the plaintiff company will be required to give evidence in each of the proceedings. It is also clear from the pleadings in each case that the Court will be called upon to determine a number of matters of substantial factual contest arising from the interaction between the parties concerning the respective building works and the variations to the originally contracted works from time to time. In those circumstances there is a real prospect of the Court in each proceeding being called upon to make findings as to credit.
The application to remove the Magistrates Court proceedings to the Supreme Court is opposed by the defendants.
Section 270 of the Magistrates Court Act 1930 (ACT) provides for the removal of proceedings into the Supreme Court, on conditions, or otherwise. Rule 1432 of the CPR makes provision for such removal in the same terms. The court may make an order for removal of proceedings to the Supreme Court on conditions about costs, security for the amount claimed for costs, or otherwise, that the court considers just. Rule 270 of the CPR applies where two or more proceedings appear to concern: (a) common issues of law or fact; (b) relief in respect of the same transaction, series of transactions or events; or (c) a decision in a proceeding will decide or affect the other proceeding.
Rule 270(2) provides: 270 Consolidation etc of proceedings … (2) The court may order that— (a) the proceedings be consolidated; or (b) the proceedings be heard together or in a particular sequence; or (c) any of the proceedings be stayed until any other of the proceedings have been decided. Note Consolidation results in the proceedings becoming a single proceeding and, for example, only 1 judgment is given in the consolidated proceeding. The Applicant/Plaintiff’s argument
The plaintiff relies upon two affidavits of Mr Karl Sullivan, solicitor for the plaintiff, affirmed on 1 April 2025 and 19 May 2025. Mr Sullivan attests to the following relevant considerations: (a) The parties to each building contract are the same; (b) The contracts themselves are standard form Master Builders Australia contracts, comprising essentially the same terms and conditions; and (c) There is likely to be a substantial overlap in evidence between the two proceedings – both in terms of the identity of the witnesses to be called and, to some extent, in respect of the subject matter of the evidence to be relied upon including, by way of example, numerous text messages asserted to relate to issues in respect of both of the disputes.
It is contended that a large number of lay witnesses will be called in each of the proceedings and that there is the potential for between five and ten of those witnesses to be required to give evidence in both proceedings. The defendants question the likelihood that there will be a requirement to call as many lay witnesses as is suggested by the plaintiff, but on any view of the material before me there is a likelihood that the hearing of the two matters together will occupy less court time than the sum of the two matters proceeding separately.
The plaintiff also intends to rely upon opinion evidence from the same expert witness in each of the proceedings, although the precise nature of the evidence to be called is not identified. The Respondent/Defendants’ argument
The defendants rely on the affidavit of the second defendant, Ms Rashmi Mehta, sworn on 21 May 2025.
The defendants wish to resist the removal of the Magistrates Court proceedings to this Court on the basis that the two proceedings are distinct, and because they believe that such removal would cause them significant prejudice as self-represented parties.
In oral submissions Mr Mehta, on behalf of the defendants, articulated their concerns that: (a) The proceedings relate to different properties with different landowners; (b) The timelines for the two projects are different; (c) Different tradespeople were utilised during construction; and (d) The repeated attendances at Court associated with the proceedings is causing increased stress and anxiety.
They highlight, in particular, the following matters: (a) Construction of the Whitlam property commenced in February 2023 and finished in June 2024, whereas construction of the Denman Prospect property did not commence until March 2024 and is the subject of an ongoing dispute concerning completion of the works; (b) The Whitlam property is solely owned by the first defendant; and (c) The issues in each of the proceedings are distinct to the extent that only the Denman Prospect property involves allegations of defective and incomplete works.
Principles
In the absence of any guiding principles or constraints on the exercise of the power available under s 270 and r 1432 to remove proceedings from the Magistrates Court into the Supreme Court, interests of justice considerations are paramount.
The Court may order such removal on conditions considered just in the circumstances.
In circumstances where the plaintiff in the Magistrates Court proceedings seeks to recover a liquidated sum in the amount of $118,000, an amount that is well within the jurisdiction of the Magistrates Court, costs considerations arising from the conduct of those proceedings in the Supreme Court may be relevant in imposing conditions.
It is a matter of relevance in considering the application that the appropriateness of this Court as a forum for the determination of the Magistrates Court proceedings arises only as a consequence of the existing proceedings in this Court, and not as a result of the prospective quantum of the claim, nor on any other basis suggesting this Court is a more appropriate forum for the determination of the matter.
Following the hearing of the application the defendants provided to me a number of authorities with some short commentary. I have carefully considered the principles arising from those authorities in coming to my decision.
Consideration
The real issue for determination is not whether the Magistrates Court proceedings are proceedings that are more appropriately determined in the Supreme Court but, rather, whether it is appropriate for the Magistrates Court proceedings and these proceedings to be heard together. If they are to be heard together this Court presents as the only appropriate venue given that the quantum of the claim in the proceedings commenced in this Court exceeds the jurisdictional limit of the Court below.
The matters that are raised against the proceedings being heard together are primarily: (a) A concern that one of the properties in question is owned by only one of the defendants; and (b) A concern in relation to the prospect of increased legal costs and delay flowing from both proceedings being determined in this Court.
In respect of the former concern, it is accepted that both defendants are parties to both building contracts, and that both will be giving evidence in each of the proceedings. In respect of the latter I am satisfied that the two proceedings being heard together is more likely to reduce court time and costs, particularly where the evidence in one proceeding is taken to be evidence in the other.
Also in favour of the proceedings being heard together is the very real concern that if they are permitted to proceed separately there may be inconsistent factual findings or inconsistent findings of credit in the two proceedings. Those concerns are well founded: see Piscioneri v Brisciani and Reardon [2017] ACTSC 237 at [74]; Lew v Priester [2012] VSC 57 at [11]-[12] (Pagone J); The Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439 at [14] (Carr J).
I am satisfied that it is in the interests of justice for the Magistrates Court proceedings to be removed to the Supreme Court and for the two proceedings to be heard together.
I am not satisfied that it is necessary or appropriate to consolidate the proceedings. Although the same parties are involved, the causes of action, relating as they do to entirely separate contracts, for the construction of premises at entirely different locations and at different times, are separate causes, and the plaintiff has not identified a particular question of fact common to both proceedings making consolidation desirable.
A compelling reason for ordering that the proceedings be heard together in this Court, but that they proceed as separate proceedings is in respect of costs. The defendants should not be penalised in circumstances where the Magistrates Court proceedings, otherwise entirely suitable for determination in that jurisdiction, are by virtue of their transfer to this Court, subject to the Supreme Court costs regime.
Where two proceedings are heard together but not consolidated, r 1707 of the CPR provides the defendants with protection as to the assessment of costs of the Magistrates Court proceedings up to the time of removal. Rule 1725 of the CPR then determines the costs of the Magistrates Court proceedings after removal to the Supreme Court and absent special circumstances, those costs will be limited in accordance with r 1725(2). To the extent that r 1725(3) leaves open the possibility of an application by the plaintiff seeking a “different” costs order to that otherwise provided by the rule, I am satisfied that the appropriateness or otherwise of such an order should be determined at the conclusion of any trial.
That leaves the residual question of the costs of this application. I am in that regard swayed by the fact that the initial separation of the proceedings was at the plaintiff’s behest and regardless of the outcome it is therefore not appropriate for the defendants to bear the costs of the application. However, should the plaintiff ultimately fail, any recoverable costs to which the defendants are entitled should be borne by the plaintiff.
Orders
The orders I make are as follows: (1) Pursuant to r 1423 of the Court Procedures Rules 2006 (ACT), proceedings CS 1 of 2025 be transferred to the Supreme Court. (2) Proceedings CS 1 of 2025, re-numbered on transfer to SC 206 of 2025, are to be heard together with proceedings SC 101 of 2025. (3) The costs of this application be the defendants’ costs in the cause. (4) The defendants’ application lodged on 22 May 2025 is dismissed.
The defendants disclosed in the course of submissions that they had filed an application opposing the plaintiff’s application, in response to a direction from the Court staff that such an application was required to enable the filing of their affidavit evidence. In the circumstances I recommend the Registrar give consideration to the reimbursement of the filing fee.
I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 13 June 2025
**************
Amendments
13 June 2025 Add “re-numbered on transfer to SC 206 of 2025” Paragraph: [30]
Molonglo Construction Group
Mehta [2025] ACTSC 235