M Johnson Building Pty Ltd v O'Toole

[2026] ACTCA 8

ACT Court of Appeal13 March 2026

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Damages
2. › Double recovery
3. › Rule against double compensation
4. › Concurrent claims against multiple defendants
5. › Settlement with one defendant before judgment against another
6. › Whether settlement sum required to be taken into account in assessment of damages against remaining defendant
7. › Evidential onus where circumstances of payment unclear
1. Damages
2. › Double recovery
3. › Partially overlapping claims
4. › Apportionment of credit between concurrent and non-concurrent losses
5. › Approach to giving effect to rule where evidence incomplete
1. Contract
2. › Construction of building contract
3. › Whether site cut works excluded from builder's obligations
4. › Whether allowance for siteworks constituted provisional sum
5. › Whether excavation works constituted excluded 'landscaping'
1. Appeal
2. › New points on appeal
3. › Whether point of contractual construction may be raised for first time on appeal
4. › Whether evidence could have been led below to meet the point
5. › Building Act 2004 (ACT), s 141
6. › Court Procedures Rules 2006 (ACT), rr 405(4), 430(1)(b)

Quick Take

Where a plaintiff settles with one defendant and obtains judgment against another, and the claims partially overlap, the rule against double recovery requires the court to attempt to give credit for the settlement sum against the concurrent portion of the damages, even where the details of the settlement are unclear. The evidential onus to explain the allocation of the settlement sum lies on the plaintiff as the party with access to the relevant information. The rule applies only to the concurrent portion of the damages, not to losses for which only one defendant was responsible.