(a) $297,566.20; and > > (b) $148,498.33 interest on unpaid progress certificates 17 and 18 pursuant to the building contract to 1 June 2023, as calculated in a table filed by email with the Tribunal by the applicant's solicitors dated 1 June 2023.

1. Interest on unpaid progress certificates 17 and 18 after 1 June 2023 is reserved, and interest on any other amount is reserved. 2. Subject to any determination of whether there has been double recovery by the [Grossis] in respect of loss or damage comprising any amount referred to in this order 3, on the counterclaim [TCM] is liable to pay to the [Grossis] $125,628 comprised of:

(a) $109,082 damages for defective works; > > (b) by consent, $13,050 liquidated damages; > > (c) by consent, $2,544 in credits conceded by [TCM]; > > (d) a $759 credit in respect of the whole of variation V77, conceded by [TCM]; and > > (e) a $193 reduction of variation V71, conceded by [TCM].

1. On 18 November 2025, and following orders requiring them to do so, the Grossis filed the terms of settlement between them and the architect, with an agreed date of 15 March 2021 (the 'terms of settlement').
2. The terms of settlement read, in part:
   1. The [architect] will pay to the [Grossis] the sum of $35,000 "all-in" (inclusive of any claim to costs and interest) (Settlement Sum)...
   2. The [architect] agrees to waive and not pursue any rights in respect of [its unpaid fees owing by the Grossis in the sum of $5,078.06].
   3. In consideration of the [architect] entering into this agreement, the [Grossis release and discharge the architect from all claims] of any and whatsoever nature arising out of or in any way connected with:
      • 3.1 the [architect] Engagement (including the services provided by the pursuant to the [architect] Engagement;
      • 3.2 the Works;
      • 3.3 the Proceedings;

3.4 any defects in the Residence which are known or ought reasonably to have been known to exist at the date of this agreement; and

3.5 the matters referred to in the Recitals to this agreement.

1. TCM seeks a reduction of $40,078.06 in respect of TCM's determined liability on the Grossis' counterclaim by reason of the Grossis having, on TCM's submission, brought concurrent claims against TCM and the architect, and having recovered part of their loss from the architect. The reduction claimed of $40,078.06 is the sum of $35,000 and $5,078.06 being the value of the fees waived by the architect under clause 2 of the terms of settlement.
2. The Grossis oppose any reduction, on the basis that if they retain the amount received by way of settlement from the architect and the further amount received by way of a payment order based on the finding in order 3 of the Tribunal, there would not have been any double recovery.

1. The leading Victorian decision in respect of the rule against double recovery is Boncristiano,[1] a case where owners obtained an order from the trial judge for damages against a builder for defective domestic building works. The owners had also brought an action against their former solicitors, following the builder contending by way of defence that the owners were "estopped from making any claim in respect of the alleged defects" as a result of a prior settlement which the builder had reached with the owners, on advice from the former solicitors.
2. One of the issues on the owners' appeal was whether the trial judge was correct in requiring a credit of $3,000 to be made in favour of the builder in respect of the damages otherwise assessed against the builder. The learned judge determined that this amount, being part of a $5,000 payment received by the owners from their former solicitors in consideration of the owners discontinuing an action against them, was in settlement of a concurrent claim against the architects relating to defects in the residence.
3. On appeal to the Court of Appeal, Winneke P stated:

The General Rules of Civil Procedure 1986 entitle a plaintiff to sue several defendants on different causes of action. However in cases where the plaintiff seeks to recover from several defendants compensation in respect of the same damage it is fundamental that the plaintiff cannot recover more than the total damage which he or she has sustained. Where the claims for damages are concurrent, in the sense that the claims "overlap", recovery by the plaintiff of the whole or part of the loss claimed from one defence will necessarily be taken into account in assessing damages to be recovered from the other.[2]

It is not to the point to argue...that the claims made against the various defendants proceed from various causes of action. The fundamental question is whether the claims are "concurrent" in the sense that the relief sought is the same...[3]

In this case, it cannot, I think, be doubted that the claims which were mounted against the builders and the solicitors were concurrent in the sense that they were claims being made to recover the same damage. In its essence the claim being made against the solicitors was that the owners should be entitled to recover from the solicitors whatever amount they could not recover from the builders on account of their faulty workmanship. The claim being made was truly an alternative claim for the same damage. The claim was made by the owners against the solicitors in response to the builders' contention that the owners were estopped from claiming damages against them for faulty workmanship because of the 1988 settlement which the solicitors had negotiated with them on behalf of the owners. The ultimate finding by his Honour that such an estoppel was not made out cannot affect the application of the principles to which I refer. Those principles, as explained [by his Honour, earlier] in Townsend's case,[4] must a fortiori apply to this case.

1. In Townsend, claims not unlike those made by the Grossis in this case, were made by the owners of a farmhouse against their architects and builder in respect of defective building works. The action was compromised by the owners' acceptance of a payment of £30,000 into court by the builder which was made "in satisfaction of all causes of action in respect of which the [owner] claims and after taking into account and satisfying the [builder's] cause of action for £32,363.92 in respect of which it counterclaims".[5] On the proper construction of these words, the court found that it was necessary and proper to take the payment into court into account in assessing the damages to which the owner was entitled against the architect.

Whether, in respect of global settlements, any difficulty in assessing the amount paid in satisfaction of a concurrent claim, prevents the application of the principle.

1. Where a plaintiff has a claim against two defendants and settles with one "in full settlement...(including the [plaintiff's] claims for costs)", the plaintiff is entitled to deduct the costs of his action against that defendant before giving credit in the action against the other defendant for the amount received under the settlement, since the costs incurred against the defendant who settled represented an additional and separate claim by the plaintiff against that defendant. In such a case, the principle is that the agreed costs of the action against the settling defendant must be deducted from the recovery made under the settlement before credit is given.[6]
2. In Boncristiano, the owners submitted that the trial judge was in no position to call upon the owners to account for a portion of the settlement sum paid by the solicitors before there was nothing in the material before him which could have enable him to find out what, if any, portion of the settlement sum was attributable to the satisfaction of the substance of the owners' claim as distinct from, say, for the costs of that claim.
3. Winneke P rejected the submission, stating:

However the paucity of that material cannot...affect the application of the principle to which I have referred.[7]

...The builders having proved that the owners had accepted the sum of $5,000 from the solicitors in "full and final settlement of the...proceeding" against them, the builders were entitled to claim, as they did, that such sum should have been presumed to have been accepted in fulfillment of the concurrent claims made by the owners against them and the solicitors. Indeed it might be said that the learned judge was being generous to the owners in not requiring the owners to account for the whole of the $5,000.[8] However, as I have already said, it has not been suggested on this appeal that he was in error in doing so.[9]

1. RACV Insurance Pty Ltd v Unisys Australia Ltd[10] was described by the trial judge as a claim for damages arising from a computerisation project that went wrong. In addition to Unisys, which was the first defendant named in the writ, two entities of the international accounting house Deloitte were respectively named as the second and third defendants. The plaintiffs and Deloitte reached a settlement prior to trial, and signed terms. Deloitte agreed to pay a stipulated sum in full settlement of the claims. The settlement sum was not appropriated to the claims, interest or costs. In such circumstances Unisys, although conceding that it was correct in principle to make an allowance for the plaintiff's costs of its claims against the Deloitte entities, contended before the trial judge that in the absence of evidence as to the amount of the costs, no amount had been established for costs and, in consequence, no allowance for costs should be made.[11]
2. The trial judge found that there was nothing in the terms of settlement that could affect the application of the principle that a plaintiff is entitled to deduct the costs of his action against that defendant before giving credit in the action against the other defendant for the amount received under the settlement. His Honour held that the interests of justice were best served by orders that provide for the assessment by the taxing master of the party and party costs of the plaintiffs proceeding against the Deloitte entities, the sum so assessed to be allowed against the settlement sum otherwise credited to Unisys.[12] The approach of the trial judge was upheld on appeal.[13]

1. A comparison of the respective claims made by the Grossis against TCM on the one hand and the architect on the other, at the date of settlement with the architect on 15 March 2021, must be reviewed to determine whether the respective damages claims were then concurrent.
2. The claims made by the Grossis against the builder were set out in their points of defence and counterclaim dated 20 August 2019 as follows:

(a) disputed liability in respect of certified variations V2, V27, V42, V71 V72 and V77 (paragraph 33 of the counterclaim);

(b) damages for exceeding the "agreed construction period" that would have had the works brought to practical completion by 17 April 2017 (30(a) and 54 of the counterclaim); and

(c) damages in respect of construction defects (paragraphs 55-56 of the counterclaim)

1. The claims made by the Grossis against the architect by their FAPC were as follows:

(a) the alleged improper certification by the architect of variations V2, V27, V42, V71, V72 and V77 (paragraphs 14-14.5 of the FAPC);

(b) the alleged failure by the architect to apply various credits to the Grossis when certifying progress claims (paragraphs 14.5-14.6 of the FAPC);

(c) the alleged failure to notify the Grossis of their right to liquidated damages for the period from 17 April 2017, the alleged date for practical completion of the works (paragraphs 14.7-14.8 of the FAPC);

(d) the alleged failure by the architect to ensure the rectification of defects and non-compliant work (paragraphs 14.9-14.10 of the FAPC);

(e) the alleged improper certification of practical completion on 30 August 2017 (paragraphs 16-26 of the FAPC); and

(f) the alleged improper issue of progress payment certificates as failed to make sufficient allowance for defective work and the Grossis entitlement to liquidated damages, as failed to properly assess variations and failed to apply credits to which the Grossis were entitled (paragraph 27 of the FAPC).

1. I have little doubt in concluding that the respective claims, in the words of the learned justice Winneke P, overlapped by reason of the fact that they were claims made to recover the same damage.[14] Adopting the words of his Honour at page 90 of the judgment, "in its essence the claim being made against [the architect] was that the [Grossis] should be entitled to recover from [the architect] whatever amount they could not recover from [TCM] on account of their [alleged] faulty workmanship". The claims were concurrent, notwithstanding that they were founded on different causes of action-one for breach of professional duty and the other for breach of the building contract.
2. The circumstances here are comparable to the position in Townsend,[15] referred to in his Honour's judgment, where a building owner, as plaintiff, had sought to recover damages from a builder for defective workmanship and overpayment; and from the architect for among other things, breach of duty to properly supervise the works and wrongful certification. The claims were found to be concurrent or overlapping.

Whether TCM has demonstrated the extent to which part of the claim against TCM has already been satisfied.

1. In respect of burden of proof, the court in Boncristiano adopted the words of Oliver LJ in Townsend's case:

It is said that the burden lies on the defendant to show that a part of the claim against him has already been satisfied and to demonstrate the extent to which recovery has already been completed by the plaintiff...Allowing this, however, it seems to me that the initial burden is discharged when the defendant shows acceptance of a payment-in, in causes of action where there are concurrent claims against him.

1. The terms of settlement will need to be construed when determining the issue of double recovery of loss.[16]
2. A difficulty arises where, as in the present case, the settlement sum between the Grossis and the architect is expressed in the terms of settlement as being:

..."all-in" (inclusive of any claim to costs and interest)...

1. I find from this term that the terms of settlement included an amount in recognition of the Grossis' claim against the architect for costs.
2. For the reasons set out in my discussion of the authorities, I am not persuaded that, for lack of an apportionment mechanism in the terms of settlement, there should not be a credit to take account of the Grossis' costs of proceeding against the architect.
3. I am content to adopt the approach by the trial judge in RACV Insurance Pty Ltd, and make the accompanying orders by which the Grossis may, failing agreement, have the costs of the Grossis' proceeding against the architect taxed and deducted from the amount of $35,000 in order to establish the amount of the credit to which TCM is entitled against the sum of $125,628 otherwise payable to the Grossis under order 3 of my orders dated 24 October 2025.
4. Contrary to TCM's submissions, I am not satisfied that to the amount of $35,000 another $5,078.06 should be added, being the unpaid fees owing by the Grossis to the architect, and waived by the architect under the terms of settlement. I am not satisfied that, on a proper construction of the terms of settlement, the amount waived constitutes further compensation to the Grossis for the amount they claimed against the architect in that proceeding.

[1] Boncristiano and Another v Lohmann and Others [1998] VSC 228; [1998] 4 VR 82, 88-89.

[4] Townsend v Stone Toms & Partners (1984) 27 BLR 26.

[6] See Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd and others (No 2) [1988] 2 All ER 880

[7] Boncristiano (n 1) at p 89 ll.36-39.

[8] It appears from the report that the trial judge chose to deal on what the Court described as a "global" fashion with the question of how much of the $5,000 settlement monies paid by the solicitors to the owners was to be ascribed to the owners' claim for costs.

[9] Boncristiano (n 1) at p 90 ll. 6-15.

[10] [2001] VSC 300

[11] See RACV Insurance Pty Ltd v Unisys Australia Ltd [2001] VSC 300 at [560].

[13] See Unisys Australia Ltd v RACV Insurance Pty Ltd [2004] VSCA 81 at [92]- [101].

[14] The concurrent nature of the two causes of action was also clear from the written openings.

[16] Australia Super Developments Pty Ltd v David Wellesley Marriner (No 2) [2015] VSC 315 at [78].