Perryman v Fast Colours Pty Ltd

[2025] NSWCATCD 109

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Perryman v Fast Colours Pty Ltd [2025] NSWCATCD 109

Hearing dates:

27 June 2025

Date of orders:

11 August 2025

Decision date:

11 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

A Duc, General Member

Decision:

The Tribunal orders the first respondent to pay the applicant $20,000 within 14 days of the making of this order.

Legislation Cited:

Civil & Administrative Tribunal Act 2013, s60

Civil & Administrative Tribunal Rules, Rule 39

Fair Trading Act 1987 (NSW), 79D, 79F, 79L, 79N, 79U

Cases Cited:

Baltic Shipping Co v Dillon [1993] HCA 4

Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham’s Warehouse Sales Pty Ltd [2012] HCA 7

Middleton v Wrona [2023] NSWCATAP 158

Nu Line Constructions Ltd v Fowler [2014] NSWCA 51

Rona v Opes Lifestyle Homes Pty Ltd [2022] NSWCATAP 363

Thurston v Goway Travel Pty Limited [2020] NSWCATAP 140

Category:

Principal judgment

Parties:

Applicant – David Perryman
First Respondent – Fast Colours Pty Ltd
Second Respondent – Bruce Hopper

Representation:

Applicant – self represented
Respondent – did not appear

File Number(s):

2025/00085497

Publication restriction:

Nil

REASONS FOR DECISION

1. Mr David Perryman, the applicant, applies to the Tribunal seeking a money order for $20,000 (and other amounts) following the failure of an agreement he entered into with the respondent, Fast Colours Pty Ltd.

2. The claim is a consumer claim pursuant to the Fair Trading Act 1987 (NSW) (the Act) relating to services that were paid for in advance, but not provided, by the respondent.

3. Mr Bruce Hopper (a representative of the first respondent) was also named as a respondent. For reasons that will become clear, the contract for services was made with Fast Colours Pty Ltd. Fast Colours Pty Ltd was joined as a respondent by order of the Tribunal on 1 April 2025. Orders also were made for the registry to serve Fast Colours Pty Ltd. Where the Tribunal refers to the respondent, it is a reference to the corporate entity.

4. The applicant alleges that in 2018 he entered into an agreement with the respondent for the applicant’s car, a 1978 Ferrari GTS, to be spray-painted by the respondent, with such work to be completed within a twelve-month period. In exchange, the applicant would pay the respondent $20,000, to be paid in instalments.

5. For several years the contract subsisted with various delays in the respondent providing the services. As of the middle of 2022 that work had not been performed by the respondent, either partially or totally. At that time, the applicant took his car back into his possession. For several months after that the applicant persisted in seeking for the work to be performed by the respondent. In 2023 the applicant concluded the work would not be performed and sought the return of monies he had prepaid to the respondent.

6. The contract between the parties was oral. At the time of making the oral contract in late 2018, the parties were in the Australian Capital Territory. At the time the applicant made the application he was a resident of NSW and the respondent operated in NSW, having moved premises to Queanbeyan, New South Wales, in June 2020.

Hearing

7. The application was received at the registry on 4 March 2025. A conciliation group list date was set for 1 April 2025. Orders were made for the hearing to take place and directions issued.

8. On 27 June 2025 a hearing was held virtually. Mr Perryman attended. The respondent did not. The Tribunal was satisfied that the respondent had notice of the hearing and proceeded on an ex parte basis, with the Tribunal identifying the address for service on 1 April 2025. The hearing notice was sent to the address identified by the Tribunal.

Documents

9. The applicant provided two white folders with over 400 pages of material. The respondent did not provide any material, despite directions to do so. Folder 1 contained submissions and a range of text messages, photos and phone records. Folder 2 contained relevant evidence, including a range of text messages from 11 August 2020, photos and emails to the conclusion of the agreement and events following, including the applicant’s issuing of a letter of demand.

Facts

10. The parties entered into the contract in or around December 2018. The evidence is that Mr Hopper met Mr Perryman at Mr Perryman’s house in Chisholm, in the ACT, to view the 1978 Ferrari GTS. Mr Perryman was interested in having his Ferrari spray painted. Mr Hopper indicated that he could spray paint the car with three coats of paint and two coats of clear. In preparation, Mr Hopper would organise a colleague of his to panel beat the car. The applicant and Mr Hopper agreed on a price of $30,000 for the work, to paid in instalments. Mr Hopper said the work would take twelve months.

11. The applicant delivered the car to the respondent in December 2019. The applicant paid $10,000 for work to commence and to secure a place in the respondent’s workshop. On page 125 of folder 1 is a receipt dated 11 December 2019 indicating that an amount of $10,000 was made by the applicant to the respondent deposited to the account name of Fast Colours.

12. Work was commenced in December 2019. The applicant paid an additional $3,000.00 to the respondent for panel beating. Panel beating work was carried out in 2020, but the evidence is the work was substandard. Mr Hopper agreed this was the case. The applicant requested those funds to be returned.

13. The work was not completed within twelve months. The work was not completed within the next twelve months either. In fact, there were several times the work was started and stopped, none of which brought the car close to completion. By December 2021 the work had not been completed. Mr Hopper, following the applicant’s pressing at to the expected timeframe, confirmed with the applicant that the work would be finished by Easter 2022.

14. The applicant made a further payment to the respondent in 2021. On page 336 of folder 2 is a receipt dated 13 December 2021 indicating an amount of $10,000 was deposited to an account name of Fast Colours made by the applicant to the respondent for future work.

15. Easter 2022 came and went without the Ferrari being finished. Mr Perryman removed the car from the respondent’s workshop, back to his residence, in June 2022. Mr Perryman still had faith, though, that the work would be done. He organised a friend of his to come and do some more preparatory work so when the painting could be done by the respondent, the car was ready.

16. In August 2023 the applicant took more pictures of the failing preparation and poor workmanship. The filler used by the panel beater was falling off the car. The photos were sent to the respondent and another person, to make them aware of the state of the car and repairs to date.

17. By September 2023 Mr Perryman decided that the work would not be completed. He advised he would pick up the rear end deck lid of the car the from the respondent, which had remained situated at the respondent’s workshop despite the car being transported back to the applicant’s address the previous year.

18. On 9 October 2023 the applicant states that he picked the rear of the car up and that he told Mr Hopper he would not be returning the car to the workshop. He requested the return of $10,000 because the respondent had not completed the work he had been paid to perform.

19. On 15 March 2024 the applicant sent a text to Mr Hopper and requested Mr Hopper provide his email address. Mr Hopper sent a text back asking why the applicant needed his email address. The applicant responded that he was going to send Mr Hopper an email making a request for repayment of $10,000 given to the respondent in prepayment for future work on the Ferrari. One of the last text messages sent between the parties was dated 24 April 2024 with the applicant seeking the return of $10,000.

20. On 26 April 2024 the applicant sent the respondent a letter of demand. The letter of demand was received by the respondent, and on 7 May 2024 the respondent replied to the applicant as to what he thought of the letter of demand. The respondent stated that he believed that he had performed work and much of the money already paid had been for work done, home visits, payment of subcontractors and storage of the vehicle. In part, Mr Hopper said:

“so how about having a serious think about taking any legal action against me, I have an excellent friend who’s a barrister... oh and have you ever been in business by yourself with no helpers because you can’t afford staff... no I think not…”.

21. The applicant then emailed Mr Hopper on 26 July 2024 summarising his agreement with the respondent and what he understood was included in the agreement and again sought repayment of $10,000.

22. In March 2025 the applicant commissioned a report from a Mr John Okeefe from Hermits Restoshop at Burra NSW. The report detailed the opinion of Mr Okeefe that, upon inspection, he viewed the car and determined the car had received a coat of body filler with thickness between 1mm and 12mm, and in his opinion some of the filler was excessive. He also noted that there were areas of rust that had not been repaired, and body filler was used to hide the issues. Dents had also been covered up with body filler rather than hammered back into shape. Photos were attached to the report.

23. The applicant commenced proceedings on 4 March 2025.

The application

24. The basis of the applicant’s claim is that he entered into a contract which was not fulfilled. The agreement was that the respondent would over a twelve month period spray paint and panel beat the Ferrari. Payment was to be made in instalments due to the high cost. The contract was varied from time to time as the date for completion was extended. However, despite the amount of time the respondent had the car, the key outcomes as sought by the agreement had simply not materialised. The Ferrari remained unpainted.

Jurisdiction

25. Before proceeding the Tribunal needs to satisfy itself that it has jurisdiction. The Tribunal has jurisdiction under Part 6A of the Fair Trading Act 1987 (FTA), if:

1. The applicant is a “consumer”;

2. The claim is a “consumer claim”;

3. The proceedings have a sufficient nexus with NSW;

4. The claim is within the jurisdictional limit;

5. The proceedings have been commenced within the applicable limitation period;

6. The proceedings do not involve diversity jurisdiction issues or matters of federal jurisdiction that can only be determined by a court (see Attorney General NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254).

Is the applicant is a “consumer”?

26. Section 79D of the FTA relevantly defines “consumer” for the purpose of Part 6A as:

consumer means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under contract) or with whom or with which a supplier has entered a contract that is collateral to a contract for the supply of goods or services:

(a) a natural person,

...

27. The applicant, Mr Perryman, is a natural person.

Is the respondent a supplier?

28. Section 79D defines “supplier” as follows:

supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.

29. Section 79F defines services under the FTA:

For the purposes of this Part, a reference to services is a reference to any of the following—

the performance of work (including work of a professional nature), whether with or without the supply of goods, 

…

30. The respondent is an Australian company incorporated pursuant to the Corporations Act 2010 (Cth). The respondent is in the business of providing spray-painting vehicles for monetary consideration. The Tribunals finds that the respondent was a supplier of services as it carried out work of a professional nature for payment. In this case, the pre-payments were a substantial amount of many thousands of dollars.

31. The applicant seeks an order for a specified amount of money, which is a an order available to the Tribunals pursuant to s79N of the FTA.

Do the proceedings have a sufficient nexus with NSW?

32. Having discussed the nature of the contract, and that the conduct of the contract occurred in NSW, and where the contract ‘failed to materialise’, the Tribunal finds it has jurisdiction as the subject matter of the dispute has the requisite connection with NSW. While the contract was formed in the ACT, from 2020 the respondent operated a business in NSW (in Queanbeyan). That is also where the contract failed ultimately to be fulfilled.

Is the claim within the jurisdictional limit?

33. The claim is for $20,000, as sought in the submissions filed by the applicant. The claim is within the jurisdictional limit.

Have the proceedings been commenced within the applicable limitation period?

34. The Tribunal must consider whether the claim has been brought within time given the contract was formed in 2018 and came to an end in October 2023. The question is: when did the cause of action arise? The applicant filed his claim on 4 March 2025. The limitation period is 3 years (s79L).

35. In essence, the cause of action is a total failure of consideration. The contract was not performed by the respondent, despite many attempts by the applicant to have the respondent do so. The contract was ultimately concluded by the applicant advising the respondent that he would not be returning the car to the workshop. The contract, in the Tribunal’s view, was the subject of either a total or partial failure of consideration.

36. The cause of action, the failure of consideration, arose in October 2023 when the applicant told Mr Hopper that he did not wish him to proceed with the services. The applicant finally accepted that the respondent would never complete the work. The cause of action crystallised on this date. The authority for this proposition is Nu Line Constructions Ltd v Fowler [2014] NSWCA 51.

37. In Nu Line, the Court of Appeal dealt with parties who were litigating s dispute concerning a real estate transaction. The Fowlers sought to sell land to Nu Line, with negotiations continuing over a number of years. Nu Line had made a number of advance payments to the Fowlers. The sale was never finalised. Nu Line then sought to have the advance payments refunded and sought restitution. The Fowlers argued that the contract had not failed completely. The Court had to decide at what point the contract ‘failed to materialise’ (per Barrett JA).

[106] In such a case, “failure to materialise” occurs, in my view, when the parties no longer share the common intention. The necessary inquiry is, to some extent, akin to that which must be made when it is alleged that parties to a contract have abandoned that contract, in the sense recently discussed in Fazio v Fazio [2012] WASCA 72 and Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32. In the former case, Murphy JA said at [74]:

“The abandonment of a contract, in the sense of the mutual release of future obligations, being an inferred agreement, does not depend upon the subjective intention of the parties, but upon whether their conduct (both acts and omissions) viewed objectively manifests an intention to discharge the contract: Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144, 151 - 152; Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 [2], [40], [57]; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [[1978] HCA 12; [1978] HCA 12; (1978) 138 CLR 423]; Marminta Pty Ltd v French [2003] QCA 541 [21] - [22].”

38. The applicant’s actions in October of 2023 equates to an intention, by his conduct, which manifested an intention to discharge the contract. It was an acceptance by the applicant that the respondent would never perform the contracted services. Young JA agreed, putting it succinctly by saying:

[194] I agree with Barrett JA (and indeed there did not seem to be that much dispute about this) that one must be looking to the time when both parties would be reasonably considered to have taken the position that the arrangement between them was finally and definitely not going to proceed. Only at that time did it, to use the modern jargon, become unjust, or, to use the ancient jargon, become inequitable for the person who received the money to retain it.

39. On this analysis, the claim is within the limitation period for making claims having been made within 3 years of the cause of action arising in October 2023.

The proceedings do not involve diversity jurisdiction issues

40. The time for determining jurisdiction is at the commencement of proceedings. As the applicant was resident in NSW there is jurisdiction to hear the claim. The respondent is a corporation registered and performing work in Queanbeyan, NSW.

Relevant Law

41. Mr Perryman claims that the contract was not fulfilled, either at all or partially. The Tribunal is satisfied as to the terms of the contract – that in exchange for the car being repainted that the applicant would pay the respondent a sum of money. The Tribunal further finds that the parties to the contract were Mr Perryman and the corporate entity, Fast Colours Pty Ltd. It was the corporate entity to which the applicant made payments for the services. As discussed earlier, when the applicant organised for the rest of his car to be taken out of the workshop of the respondent, and the letter of demand sent, the applicant accepted the total failure of consideration and evinced an intention that the arrangement was not going to proceed.

42. Total failure of consideration was considered in Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham’s Warehouse Sales Pty Ltd [2012] HCA 7 at [31] where the Court said:

31. Failure of consideration is one of the factors that makes retention of a benefit prima facie unjust. It was recognised by Lord Mansfield as a ground for a claim for money had and received. It was a criterion of recoverability which survived the rejection in the United Kingdom and Australia of the implied contract theory. This Court has, on more than one occasion, described failure of consideration in terms set out by the late Professor Birks:

“Failure of the consideration for a payment ... means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself.”

43. In Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 at 350, Mason CJ explained the concept applicable to the situation the applicant found himself in:

‘When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contract-breaker of its obligations under the contract and the contract-breaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration. If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected under the contract, there will not be a total failure of consideration.’

44. Total failure of consideration arises from the Tribunal’s finding that no, or very little, work was done by the respondent to the applicant’s car; that is, whether the work done was of no practical significance or de minimis. In considering the evidence, submissions and photographs from the applicant, the Tribunal finds that the work done by the respondent was de minimis. In Rona v Opes Lifestyle Homes Pty Ltd [2022] NSWCATAP 363 the Appeal Panel said:

[48] The Appeal Panel recently considered the issue of total failure of consideration in Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212. Moody cited the decision of Luo v Zhai [2015] FCA 350 in which Perram J considered the question of total failure of consideration. His Honour said at [38] that this posed the question as one of substantiality. His Honour said that the receipt by the plaintiff of any substantial benefit under the agreement would deny him restitutionary relief, but the question then became what was substantial.

45. In Rona, the Appeal Panel cites Moody and the comments of Kerr LJ in Rover International Ltd v Cannon Film Ltd [1989] 1 WLR 912 where (citing Chitty on Contracts) it is generally speaking, not the promise which is referred to as the consideration, but the ‘performance of the promise.’ The difference has relevance to whether the conditions for a contractual breach have occurred (where consideration is generally the legal promise, or whether there is a more general failure to meet the contractual conditions by failing to perform the contract at all).

46. In Thurston v Goway Travel Pty Limited [2020] NSWCATAP 140, the Appeal Panel summarised the relevant principles as follows (at para [30]):

(1) Recovery depends upon the enrichment of the defendant by one or more classes of ‘qualifying’ or ‘vitiating’ factors, such as mistake, duress, illegality, or failure of consideration by reason of which the enrichment of the defendant is treated by the law as unjust.

(2) Unjust enrichment so identified gives rise to a prima facie obligation to make restitution.

(3) The prima facie liability can be displaced by circumstances in which the law recognises would make an order for restitution unjust.

47. The Tribunal identifies in this case that the ‘vitiating factor’ is the failure of consideration – the failure to perform the promise. There is a prima facie case that the respondent must make restitution to the applicant. There was no evidence that it would give rise to an unjust change of position if the respondent were ordered to make such restitution.

48. The Tribunal concludes that, accepting the evidence of the applicant, including the documentary evidence, texts, photographs and the report of Mr Okeefe, that the work done by the respondent was not substantial or significant. The car remained in much the same state as the applicant delivered it to the respondent. There was a total failure of consideration in line with the authorities cited.

Conclusions

49. The Tribunal concludes that it is satisfied a contract was entered into and that contract was not fulfilled. The contract was between the applicant and Fast Colours Pty Ltd as the corporate entity who received the advance payments. The contract was oral and involved the respondent painting the car and carrying out ancillary tasks such as panel beating. These were not performed at all or only performed in part (but not to any significant extent). The contract ended when the dissatisfied applicant, after years of delay, removed the car from the respondent’s workshop and demanded the return of his money. To the Tribunals mind the email of 7 May 202 indicates that Mr Hopper knew he could not perform the work in the time agreed. He says, in effect, that he could not find the workers to perform the work. Yet he never said anything to the applicant about that state of affairs to allow the applicant to make an informed decision on whether the work should continue.

50. The Tribunal now turns to the assessment of compensation. In Middleton v Wrona [2023] NSWCATAP 158 (at [52]) the Appeal Panel summarises the principles of restitution. Essentially, retention of a benefit is prima facie unjust if there is a failure of consideration. It is “unconscionable” for a respondent to retain the benefit in circumstances where it was not intended that the respondent should enjoy them having failed to perform their side of the bargain. This is the case here. It would be to unjustly enrich the respondent if he should retain those funds paid in advance when the spray painting and panel beating work was simply not undertaken.

51. To put the applicant in the position he should have been in requires an order that the respondent refund the applicant $20,000 that he had paid in advance.

52. Other amounts are sought. First, the refund of the $3,000 for the substandard panel beating. The claim for $3,000 is out of time, as the substandard panel beating work was carried out in 2020. There is nothing in the application seeking that money as an order either.

53. Second, an amount is claimed for interest. The claim for interest is dismissed as the application of the Civil & Administrative Tribunal Rules 2014 (Rule 39) means interest cannot be awarded at this stage of the proceedings.

54. Third, the applicant seeks other costs (filing fee, search fees, posting and printing). Costs are not awarded as there are no special circumstances that warrant an order, pursuant to s60 of the Civil & Administrative Tribunal Act 2013.

55. The Tribunal is satisfied that the orders are fair and reasonable pursuant to s79U of the FTA.

56. The Tribunal orders that the respondent pay the applicant the sum of $20,000.00 within 14 days of the making of the order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 October 2025