Tala (NSW) Pty Ltd v Paint Today Pty Ltd

[2025] NSWCATCD 14

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tala (NSW) Pty Ltd v Paint Today Pty Ltd [2025] NSWCATCD 14

Hearing dates:

25 March 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Consumer and Commercial Division

Before:

J Alder, General Member

Decision:

1.   The application is dismissed.

Catchwords:

BUILDING AND CONSTRUCTION - building claim - claim below $5,000 threshold for building claim treated as consumer claim - internal painting excluded from residential building work - residential building work outside New South Wales not within jurisdiction – no written contract – requirement for licensing and insurance - monies had and received - unconscionable conduct – misleading or deceptive conduct - unfair term in small business contract

CONSUMER LAW – breach of contract

Legislation Cited:

Home Building Act 1989

Home Building Regulation 2014

Civil and Administrative Tribunal Act 2013

Fair Trading Act 1987

Australian Consumer Law

Building Act 2004 (ACT)

Contracts Review Act 1980

Category:

Principal judgment

Parties:

Applicant: Tala (NSW) Pty Ltd

Representation:

Applicant: by its appointed attorney, Mr Robert O’Brien
Respondents: Mr Aidin Kelishani

File Number(s):

2024/00402694

REASONS FOR DECISION

Claim

1. On 30 October 2024 the applicant, Tala NSW Pty Ltd (Tala), filed a “Home Building Application” under the Home Building Act 1989 (NSW) (HBA) against what Tala describes as “the joint parties”, Paint Today Pty Ltd ACN 654 967 763 (company) and its sole director, Mr Aidin Kelishani (respondents). Tala , seeks a money order for $9,999.00 which is made up of a refund of various payments made under various contracts, plus damages (Application).

2. The Application relates to seven separate jobs at two properties over two years in New South Wales (NSW Works), being:

1. a partially completed painting job carried out by the respondents in July 2023 at premises in Collaroy; and

2. six small ad hoc painting and carpentry jobs completed by the respondents during 2022 and 2023 at premises in Manly.

3. By way of an amended claim, Tala seeks also to be refunded for external painting works completed in 2023 at a property in Canberra (Canberra Works). This Tribunal does not have jurisdiction under the HBA in relation to residential building work in another state or territory. The ACT has its own building legislation, the Building Act 2004. There is a presumption at common law against extraterritoriality.

4. Tala alleges generally the respondents were unlicensed and uninsured and did not provide written contracts. In respect of Collaroy, it is alleged that they did not do the work they claimed to have done and engaged in improper conduct.

5. Tala’s claim in effect is:

1. in restitution for moneys had and received, which it claims the respondents were not entitled to;

2. for damages for unconscionable conduct concerning the Collaroy job; and

3. for damages for misleading and deceptive conduct concerning breaches of licensing and insurance.

6. Mr Kelishani trades under the name Paint Today ABN 21 694 586 486, a different ABN to the company. He is also known as Aiden Kelly.

7. The respondents have not brought any cross application, whether for damages under the contract or quantum meruit.

8. The NSW Works were overseen by Mr Robert O’Brien, the son of Mr Martin O’Brien and Mrs Annette O’Brien, the directors of Tala (Directors).

9. Pursuant to a power of attorney dated 14 January 2022, the Directors appointed Robert O’Brien as their attorney (Representative).

10. Quotes and/or invoices were issued by the respondents for the various jobs. No formal contracts were entered into.

11. Since 19 January 2023, Mr Aidin Kelishani has held a licence, 367882C, authorising him to paint and decorate. For the relevant periods up to 18 January 2023, Mr Kelishani was not licensed as he said he had inadvertently allowed his licence to lapse. A licence search from NSW Fair Trading indicates it lapsed on 2 May 2022.

12. The company is not, and was not at the relevant times, licensed to carry out any type of residential building work.

13. Earlier proceedings were filed on 1 November 2023 (2023/00369073) by Tala against Mr Kelishani personally seeking $11,397.64 based on similar allegations (First Application). The company was joined as a party pursuant to Tribunal orders made at the conciliation on 22 November 2023. The proceedings were withdrawn on 15 February 2024.

Painting job at Collaroy in July 2023

14. Tala owns premises known as 19 Eastbank Avenue Collaroy (Collaroy Premises) which is a block of four residential units. Tala owns the two storey building (Collaroy Building) and the units.

15. Tala leased out some of the units which were managed by Angell Property (Agent).

16. On 5 May 2022, the respondents provided a written quote for $15,600 plus GST to paint 28 exterior rusted steel windows and doors on the Collaroy Building (Collaroy Works). The works did not go ahead at that time.

17. On 5 September 2022, the respondents provided an updated written quote for $19,850 excl GST. The scope had increased to 36 exterior windows and doors.

18. On 10 July 2023, the respondents provided a third quote (no. 237210/005/19R) for $19,850 excl GST ($21,835 incl GST) (Quote), the same amount as the second quote. The Quote specified a job cancellation fee of 5%.

19. On 11 July 2023 Tala requested some items be removed from the Quote, paid a deposit of $1,000 and stated in an email: “I understand you are wanting to start on Thursday or Friday and start with 6-8 ground floor windows. We probably won’t be able to negotiate how much at this stage…. I am happy for this to proceed from Thursday.”

20. By reply email dated 11 July 2023, Mr Kelishani removed the requested items, agreed to reduce the Quote by $3,900 (plus GST) to $15,950 plus GST ($17,545 incl GST) and requested a deposit of $1,750 be paid by 12 July 2023 (Deposit).

21. On 12 July 2023, Tala paid the balance of the Deposit of $750.

22. The works commenced on Friday 14 July 2023.

23. On or about 28 July 2023, the Collaroy Works were terminated by Tala and completed by a third party contractor.

24. On 28 July 2023, the respondents issued to Tala an invoice for a progress payment for $2,000 (Progress Payment).

25. On 28 July 2023 the respondents raised an invoice addressed to Tala for payment of the 5% termination fee of $877 (Termination Fee).

26. On 2 August 2023 Mr Kelishani emailed the two invoices to Lorna Angell of the Agent requesting payment.

27. On 27 September 2023 the Agent paid the Progress Payment and the Termination Fee to the respondents. Tala says these were paid without its authority.

28. The Agent issued a Statement of Account dated 30 August 2023 to Tala which showed that on 3 August 2023 a deduction was made from Tala’s trust account for $462.70 as payment of Agent’s fees for “arrangement of refurbishment/improvements – painting” (Agent’s Fee).

Manly Works in 2022

29. Tala owns premises known as 1 Herbert Street Manly (Manly Premises) which is a block of residential units. Tala owns the building and the units. An outdoor laundry unattached to the building is situated on the Manly Premises.

30. Six jobs were completed (and paid for) by the respondents between May 2022 and June 2023 at the Manly Premises for a combined cost of $9,950 (excl GST) (Manly Works):

1. five painting jobs:

1. in May 2022, to the interior of unit 1 for $6,350 (excl GST) plus variation of $770 (incl GST)

2. in April 2023, to wardrobes and shelves inside unit 2 for $450

3. in July 2022 to the Laundry interior for $1,550 (excl GST)

4. in July 2022 to the external stairs for $650 (excl GST)

5. in June 2023, two windows for $250 cash (this job was done at the Manly Premises but the windows were installed at the Collaroy Premises)

(Manly Painting Works)

2. one carpentry job, in August 2022, to build and install shelves within the Manly Laundry for $700, being $500 (plus GST) plus $150 timber costs (Manly Carpentry Works).

Appearances at final hearing on 25 March 2025

31. On 25 March 2025, these proceedings came before me for a three hour hearing. The Representative appeared by video link as he said he was caring for the elderly Directors. Mr Kelishani appeared in person, accompanied by his partner, Ms Kristie St George. The Representative and Mr Kelishani each gave oral evidence and made submissions.

32. The Directors, who were in a different location to the Representative, appeared by telephone and gave evidence in response to questions their Representative (and son) put to them.

Procedural history of matter

33. On 26 November 2024 a conciliation was held but the matter did not resolve.

34. The parties were directed to file and serve documents, the applicant by 10 December 2024 and the respondents by 24 December 2024.

35. The Tribunal noted that Tala was claiming a refund of monies paid for work done. Tala was directed to (order 7) “confirm the cause of action that forms the basis of the claim and the orders sought, including the quantum of the claim.”

Applicant’s documents

36. Tala relies on documents filed:

1. 27 November 2024 (filed at the conciliation hearing) including a joint statement from the Directors dated 14 February 2024 (exhibit A1)

2. 10 December 2024 which consists of a Statement of Claim of 34 pages plus annexures “A” to “V” (80 pages in total) (SOC) (exhibit A2)

3. 19 March 2025 email attaching various certificates and tertiary qualifications of the Representative.

Statement of Claim filed 10 December 2024

37. The SOC seeks additional orders and remedies and refers to additional legislation such as the Contracts Review Act NSW 1980 (CRA).

38. The Representative confirmed during the hearing Tala still sought the original amount claimed in the Application of $9,999. He said Tala had only included further matters and amounts in the SOC to demonstrate the alleged unlawful conduct of the respondents and that Tala was owed much more, but in good faith it had nominated a smaller amount in the interests of achieving a resolution.

39. I made it clear to the parties I would only deal with the amount of $9,999, which Tala submitted to.

Applicant’s documents filed 19 March 2025

40. The Representative emailed these documents to the Registry stating he did not wish Mr Kelishani to see them as it contained his address. If Tala wishes to rely on them, it is required to serve them, which it has not done. Tala has made no formal request for non-disclosure orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Tribunal’s guiding principle is for open administration of justice.

41. In any event, I cannot see the documents have any relevance as no application or claim has been brought against Tala or its Representative by the respondents. They have also been filed three months late.

42. I have not admitted into evidence Tala’s documents filed on 19 March 2025.

Applicant’s documents filed after hearing without leave on 28 March 2025

43. On 28 March 2025, three days after the hearing had concluded, Tala filed further submissions and evidence.

44. No leave had been sought or given for either party to file any further documents after the hearing had concluded and there is no proof they have been provided to the respondents.

45. For those reasons, I have not admitted the documents filed 28 March 2025 into evidence or had any regard to them.

Summary of orders sought

46. Tala seeks a money order for $9,999 (I calculate this to be $9,022.89):

Collaroy works

1. $3,750, being a refund of the Deposit and the Progress Payment;

2. $877.25, being a refund of the Termination Fee;

3. $420.64 (plus GST - $462.70), being a refund of the Agent’s Fee;

4. $3,000 in damages for the respondents’ wrongful conduct; and

5. Tala also seeks a declaration the Quote and any contract is void.

Manly works

1. A refund of GST payments paid for the Manly Works as Mr Kelishani was not registered to charge GST. When I deduct the GST claimed for the Canberra Works, I calculate the refund to be $975:

1. $50 (Manly Carpentry Works) (invoice dated 4 August 2022)

2. $635 (unit 1) (quote dated 9 May 2022 and invoice dated 8 July 2022)

3. $70 (variation to unit 1) (invoice dated 8 July 2022)

4. $155 (laundry) (quote dated 15 July and invoice (total $1,705) dated 23 July 2022)

5. $65 (external stairs) (quote dated 15 July and invoice (total $930) dated 23 July 2022)

2. In the SOC, Tala seeks a partial refund (unquantified) of what it paid for the Manly Works (excl GST).

All works

1. Damages for the respondents’ deficiencies in licensing and insurance (unquantified).

2. Any other order the Tribunal considers appropriate.

Jurisdiction

47. The Tribunal has jurisdiction to determine “building claims” pursuant to s 48K HBA, which include contractual claims by an owner against a builder within three years of the date of supply: s 48K(3) and (4). Tala meets those time limits.

48. Section 48I(1) provides that any person may apply to the Tribunal for the determination of a building claim.

49. A building claim is defined by s 48A HBA to include a claim for money (over $5,000) arising from the “supply” of “building goods or services”, whether under a contract or not, for the carrying out of “residential building work”.

50. “Residential building work” means “any work involved in… (b)  the making of alterations or additions to a dwelling, or (c ) the repairing, renovation, decoration or protective treatment of a dwelling”: schedule 1 HBA, clause 2(1).

51. A “dwelling” includes: ”detached workshops, sheds and other outbuildings”: schedule 1, clause 3(2)(1), so the Laundry at the Manly Premises falls within the definition (but is below the $5,000 threshold).

52. Internal painting is excluded from the definition of “residential building work” pursuant to Schedule 1, clause 2(3)(g) HBA, but not if it is part only of the work to be done under a contract to do residential building work: clause 2(5).

53. All of the Manly jobs fall outside the definition of “building claims” as they are either jobs below the $5,000 threshold or are for internal painting. I have treated them as “consumer claims” under the Fair Trading Act (NSW) 1987 (FTA). Tala is a consumer (within s 79D) bringing a consumer claim (within s 79E), for a supply of services, with goods (within s 79F), that the supply was made in New South Wales (within s 79K), and the proceedings have been commenced within the time limit imposed by s 79L. As a result, s 79I entitles Tala to have its contractual claims determined by the Tribunal as consumer claims.

54. Section 48MA states that rectification is the preferred remedy under the HBA, as opposed to compensation, however the Collaroy Works have already been completed by a third party contractor, so this is not possible.

55. If liability is proven, the Tribunal may make a money order under s 48O(1)(a) HBA, “whether by way of debt, damages or restitution, or refund any money paid.”

56. Section 48O(3) also requires the Tribunal to consider s 79U FTA, which requires the Tribunal to ensure its orders are fair and equitable to all parties.

Australian Consumer Law (ACL)

57. Tala alleges that the respondents have engaged in wrongful conduct and any contract for the Collaroy Works is void.

58. Section 18 ACL prohibits misleading or deceptive conduct, s 29 prohibits false or misleading misrepresentations and s 21 prohibits unconscionable conduct.

59. If a breach of these sections is established, the Tribunal may award damages under s 236 ACL. Under s 243(a)(i) and (ii), the Tribunal may declare a contract to be void or to have been void ab initio or void at all times.

60. Section 74(3) FTA enables the Tribunal to award damages for contraventions of the ACL in a building claim and make “such ancillary orders as it thinks fit.”

Unfair term

61. Tala says the Termination Fee is an unfair term.

62. Under s 23(2A) ACL a party is prohibited from entering a small business, standard form contract that contains an unfair contract term. Under s 23(1) such a term is deemed void.

63. I am satisfied the contract for the Collaroy Works is a small business contract within the meaning of s 23(4) as the respondents employ less than 100 people. Under s 27(1), there is a presumption the contract is a standard form contract.

64. Under s 250 the Tribunal can declare a term of a small business contract to be unfair. Under s 243A(2)(a)(i) and (ii), the Tribunal may declare the contract to be void or to have been void ab initio or void at all times.

Contracts Review Act (CRA)

65. Under s 89D HBA the Tribunal has jurisdiction under the CRA.

66. For Tala to obtain a declaration under s 7(1)(b) CRA that the Quote is void, it must satisfy the Tribunal it has addressed the matters in s 9 CRA and show the contact or a provision of it, was unjust when it was made.

Requirement for contract in writing

67. Residential building work worth between $5,000 and $20,000 must be covered by a small jobs contract: s 7AAA HBA. Section 7 sets out a greater level of detail to be contained in the required written contract for jobs worth over $20,000.

68. The above thresholds for contract requirements are prescribed by cl 5(1)(b) of the Home Building Regulation 2014 (Regulations).

69. Whilst the quotes and invoices issued by the respondents over $5,000 do not satisfy the requirement in s 7AAA there be a written (small jobs) contract, as long as the individual contracts are not over $20,000, s 10(1)(b) HBA entitles a contractor to enforce his rights under the contact if the quotes and invoices contain a sufficient description of the works.

70. Section 10 also entitles an owner to enforce the agreement and claim damages from the contractor (if there is defective work).

Requirement to be licensed

71. Section 4 HBA requires a person to be licensed to carry out residential building work.

72. Section 10(1)(a) prevents an unlicensed contractor from enforcing rights under a contact. A builder could still bring a quantum meruit claim.

Requirement to be insured

73. Section 92(1) HBA provides contract work must be insured, but only for amounts over $20,000: s 92(3) and cl 53 of the Regulations.

74. If the builder does not have home warranty insurance, s 94(1)(b) prevents the contractor from recovering money in respect of the work (including a quantum meruit).

Submissions and evidence of Tala

75. Mr Robert O’Brien submits as follows on behalf of Tala.

76. There was no binding contract for the Collaroy Works. Tala did not agree to the final quote for the Collaroy Works. Mr Kelishani insisted on a two day “trial” to paint seven ground floor windows. The quote was never amended to reflect the “trial”. He had paid $1,750 which was not a deposit but “reasonable payment for the trial”. He was pressured by Mr Kelishani to make extra cash payments. The quote should be declared void.

77. Prior to reducing the quote on 11 July 2023, the respondents had quoted over $20,000 on 10 July 2023 without the requisite home warranty insurance. It had also quoted in 2022 for the same amount when it was unlicensed.

78. The trial was supposed to start on Friday, 14 July, but Mr Kelishani and two of his men didn’t turn up until 9.30am on Saturday, 15 July 2023 and left by 3.30pm.

79. The trial did not go well. None of the seven windows were completed, only preparation work was done and there were cracks and blemishes in the paint work and a “brand new galvanised lintel” worth over $2,000 had been mistakenly painted. One of the tradesman named Saul was loud and obnoxious and intoxicated and damaged a window and was rude to other tenants.

80. After Mr Kelishani asked him to order some scaffolding, he discovered the respondents were not insured and he obtained instructions from the Directors to cancel the job. He adduced evidence from his father, Martin O’Brien who confirmed he had instructed his son to terminate the job and who attested he had witnessed Mr Kelishani criticising his son, Robert O’Brien.

81. A five day cooling off period applied.

82. On Monday, 17 July 2023, Mr Kelishani turned up without notice and did some further painting and took a ladder.

75. On 25 July he told Mr Kelishani not to return to site and he arranged Draaco Painting Pty Ltd to complete the job.

76. Mr Silva of Draaco says he was engaged by Martin O’Brien from 17 July 2023 to renovate unit 3 and that “between July and 1 August 2023, the project’s scope extended to encompass the external painting of several ground floor windows.” Mr Silva says he spent two full days on preparatory work of grinding and sanding.

77. On 28 July 2023 Mr Kelishani turned up to site with his contractor without permission and was threatening and abusive. Afterwards he emailed Robert O’Brien an invoice for $2,000 and demanded immediate payment. He refused to pay as Tala had already paid $1,750 for 1.5 days work which he believed was sufficient and Mr Kelishani refused to provide him with an itemised invoice. There was no due date on the invoice and he should have been given 30 business days to pay. Mr Kelishani was not entitled to enforce the contract under s 10 HBA as there was no written contact as required by 7 HBA.

78. Mr Kelishani called the Directors and put pressure of them to pay his invoices. He turned up on site again on 31 July causing a disturbance.

79. Mr Kelishani put pressure on the Agent to be paid the progress payment and job cancellation fee, which the Agent paid without Tala’s consent. The Agent charged Tala $420.44 for the time spent dealing with the matter.

80. Tala and not the Agent managed the Collaroy Building, which included common property. The Agent was not authorised to pay the respondents any money including a progress payment of $2,000 or an early termination fee in relation to the Collaroy Works.

81. The “job cancellation fee” is an unfair term under the provisions of the Australian Consumer Law and Tala did not agree to it. He also says: “Tala didn’t cancel the job, it set aside the job pending on the outcome of the founding director’s hospitalisation” (SOC, p 78).

82. On 19 September 2024 the Building Commission NSW informed the Representative it had issued “the trader” a penalty notice for breaching s 5 of the HBA in relation to the quote for $19,850 (plus GST) (for the Collaroy Works) whilst Mr Kelishani was unlicensed and given him a warning concerning s 4 (unlicensed contracting) and s 92 (not having home warranty insurance).

83. The respondents were not licensed to carry out carpentry works which were of poor quality nor was they licensed to carry out plumbing works, which were sub-standard.

84. By misrepresenting they were licensed when quoting for various residential building works in 2022, the respondents obtained $30,000 in work from Tala they would not have received.

85. Mr Kelishani failed to take out home builders warranty insurance.

86. Mr Kelishani was not registered to charge for GST, yet some of the invoices had bank account details for his personal bank account (BSB 012-245 account no. 646 183 723) and other invoices had the company’s bank account details (BSB 012-245 account no. 430 459 516). He also made it confusing by sometimes naming himself Aidin Kelly.

87. In addition to the Collaroy quote being declared void, Tala is seeking an apology and damages.

Submissions and evidence of respondents

96. Mr Kelishani submitted as follows.

97. Once Robert O’Brien accepted his reduced quote for $17,545, which included the cost of paints, undercoats, cleaning and treating products, and paid the deposit, Mr Kelishani purchased the products needed.

98. He worked at the Collaroy Premises on three days, on 14 and 15 July (Friday and Saturday) and 21 July 2023 (Friday). He had two of his painters working with him. The scope was preparatory work and painting about 30 exterior windows which were badly rusted. The preparatory work involved scraping off and removing loose paint and sanding back, sanding rust spots, fixing cracks, spots and dents on windows, filling holes and damaged areas, applying rust guard cleaning material and rust guard treating material. The second step was to apply two coats of paint (one rust guard prime undercoat and one finish coat). Over the three days he finished the preparatory work on nine windows. He applied two coats to two of the windows.

99. Robert O’Brien was happy with the quality of the work and sent him many messages and posted Google reviews to this effect.

100. He then said he wanted to postpone the job as he was having problems with other tenants.

101. When Mr Kelishani went to Collaroy to collect some of his things for another job he was working on in the meantime, he saw some other painters were working on site.

102. Robert O’Brien then cancelled the job around Friday, 28 July 2023 with no notice, despite the plan for Mr Kelishani to recommence on Monday, 31 July. The job cancellation imposed unexpected costs as he had to pay his painters. He had changed his schedule to try and accommodate Mr O’Brien.

103. Lorna Angell of the Agent told him to forward to her any outstanding invoices to be paid, which he did on 2 August 2024. Ms Angell told him she was authorised by the owners to pay his invoices, which she did on 27 September.

104. In relation to the Manly jobs, Robert O’Brien has mixed up invoices and quotes.

105. When he was unlicensed he only carried out interior paint work.

106. He had a form of insurance which he believed was sufficient.

107. The company has always been registered for GST.

Onus

108. Tala bears the legal onus to prove the respondents are not entitled to the monies they have received and that it is entitled to damages.

Findings – Collaroy Works

Was there a contract for the Collaroy Works?

109. I find that on or about 11 July 2023 Tala and the respondents entered into a contract to carry out the Collaroy Works for the sum of $17,545 (incl GST). The contract terms were contained in the Quote and emails dated 11 July 2023.

110. I find upon Tala’s request the Quote had been reduced from $19,850 and Tala paid the Deposit of $1,750 on that basis.

111. I find the relevant terms were that the works would commence on or about 14 July 2023 and take 20 days to complete.

112. When considering the matters in s 22 ACL (and s 9 CRA), I am not satisfied there was any duress or unconscionable conduct by the respondents in the formation of the Collaroy contract, or that there was an inequality in bargaining power. The provisions of the contract had been negotiated over a period of time.

113. There is no evidence that Tala or the Representative was unsophisticated or that Mr Kelishani used their unsophistication to take advantage of them. According to Draaco, Robert O’Brien is an experienced project manager and I reject Robert O’Brien’s evidence that he felt pressured or was under duress.

114. I reject Tala’s submission a five day cooling off period applied. Section 7BA HBA is not applicable to contracts below $20,000.

115. The claim that the contract be declared void is dismissed and I dismiss any claim for damages for unconscionable conduct.

116. Any relief under the CRA also fails.

Did the respondents breach the Collaroy contract?

117. I find the Collaroy Works are residential building works as they are over $5,000 and are for external (not internal) painting.

118. Although not in writing, the value is under $20,000.00, so s 7 and the first limb of s 10(1)(b) is not applicable. I find the Collaroy Works were clearly defined in the Quote dated 10 July 2023 and the email dated 11 July 2023 provided by the respondents. I find no breach of the second limb of s 10(1)(b).

119. Although not licensed when he quoted for the Collaroy Works 10 months earlier, Mr Kelishani was licensed at the time he contracted to do the works in July 2023 and for the short duration of those works. I find no breach of s 10(1)(a) by Mr Kelishani.

120. As the contract involved work for an amount less than $20,000.00, no home builders warranty insurance was required. I find no breach of s 92 by the respondents.

121. Section 10(1)(c) prevents a contractor who in contracting has contravened any other section of the HBA or the Regulations prescribed for the purposes of s 10, from enforcing rights under a contact.

122. No regulation is prescribed for the purposes of s 10(1).

123. The allegation that Mr Kelishani was not licensed when he quoted for the Collaroy Works over $20,000 ($19,850 plus GST) some 10 months earlier is irrelevant to a contractor being able to enforce a contract under s 10. Mr Kelishani received a penalty from the Building Commission for a contravention of s 4 HBA. The Tribunal has no jurisdiction in relation to penalties of this type.

124. I find no breach of s 10(1)(c) by Mr Kelishani.

125. Consequently, I find there was no grounds for termination by Tala and I find the termination to be wrongful, amounting to a repudiation by Tala.

Is Tala entitled to a refund of the Progress Payment and Deposit?

126. Pursuant to s 10(1)(c) Mr Kelishani has enforced his rights under the contact as he is entitled to do. (Being unlicensed, the company is entitled to bring a claim in quantum meruit).

127. Mr Kelishani’s defence to the refund claim is that he is entitled under the contract to be paid for the works he did.

128. Tala acknowledges as such, stating: “If there was a contractual agreement in place, Mr Kelishani would have been entitled to progress payments…” (SOC, par 51, footnote 30).

129. Mr Kelishani presented as a credible and truthful witness. I accept his evidence that he carried out three days’ work on 14, 15 and 21 July 2023. This is corroborated by the evidence of the (then) tenants of unit 1 (Mr and Mrs Strange) and unit 2 (Ms Warokka). The onus is on Tala to show it received minimal or no benefit. I find Tala received the benefit of significant preparatory paint work to nine of the 30 windows. The works carried out are described in the invoice for the Progress Payment. The Representative acknowledged preparatory work was done. He said it was substandard, but has brought no evidence of this and that submission is inconsistent with Robert O’Brien’s 5 star google review stating Mr Kelishani was “meticulous, thorough and detailed and the quality of his work is exemplary”. I do not find there has been a total failure of consideration. In the Application, Tala gives some guidance that three days’ work to complete six to eight ground floor windows was about $5,000. Whilst seven of the nine windows still required painting, the preparatory work was done to all nine, and given their rusted state, would appear to be more labour intensive than applying coats. The respondents have been paid $3,780, which in my view is a fair and reasonable amount for works done.

130. The deposit of 10% was an appropriate amount to charge: s 8 HBA.

131. Tala is not entitled to a refund of the Deposit or the Progress Payment.

132. I accept Mr Kelishani’s evidence he relied on the Agent’s assurances it was authorised to pay him. I find no improper conduct in his attempting to be paid and dismiss any claim for damages.

Refund of Termination Fee

133. There was no provision to terminate the contract.

134. At law, a party may claim damages based on the other party’s repudiation of the contract.

135. I find Mr Kelishani is entitled to the Termination Fee which is akin to damages for Tala’s breach.

136. There is no evidence it was an unfair term when considering the matters in s 24 ACL. It was not a large amount and did not in my view cause detriment to Tala or cause a significant imbalance to the obligations and rights of the parties under the contract, since Tala had terminated the contract. I find the term was reasonably necessary to protect the respondents’ legitimate business interests. I accept Mr Kelishani’s evidence he had a tight schedule and workers to pay. It is a clear and transparent term and apparent from the face of the Quote that Tala agreed to.

Are the respondents liable in damages for misleading or deceptive conduct/misrepresentation?

137. As stated above, Tala is not entitled to damages as it has wrongfully terminated.

138. Tala is not entitled to damages for misrepresentation concerning writing, licensing and insurance.

139. Whether or not Tala was misled by the previous Collaroy quotes in 2022 stating that Mr Kelishani was licensed at that time, it has not shown that in accepting the Quote, it has relied on the misrepresentation to its detriment and it suffered a loss.

140. Even if Mr Kelishani had been unlicensed when he carried out the Collaroy Works, in the absence of a claim for defective works by Tala, there is no entitlement to damages as there is no loss. Tala has brought no claim for defective works. The proper remedy is a penalty. The Representative referred to some defective works during the hearing but Tala has filed no expert evidence to support this.

141. There is no evidence of the cost of the damaged window caused by the respondents’ contractor. In any event, the documents are clear that the Representative said Tala would wear this cost.

142. On a general basis, even if the respondents did obtain more work from Tala off the back of jobs done in 2022 (such as the Canberra Works for $10,670 incl GST), which Tala says they would not have received if Tala had known the respondents were unlicensed to carry out residential building work in 2022, where does that take Tala? There is no evidence the Canberra Works were defective. Mr Kelishani’s NSW license was valid when he commenced the Canberra Works in February 2023. There is no evidence other (unidentified) jobs procured were residential building works requiring a licence (over $5,000, not internal painting).

143. I dismiss any claim for damages under the ACL.

Refund of Agent’s fee of $420.64

144. Tala has existing Tribunal proceedings on foot against the Agent (2023/00369019) in relation to the Agent’s alleged breach of authority and disputed payments.

145. Any amount which Tala alleges has been improperly debited by the Agent from Tala’s trust account is not a proper matter for dissertation in these proceedings by Tala against the respondents. It is a matter for Tala to take up with the Agent.

146. If Tala has any success in its proceedings against the Agent, there is also the risk it would be doubly compensated if any award was given to it in these proceedings.

147. I dismiss this part of the claim.

Findings - Manly Works

Mr Kelishani not entitled to charge GST

148. Tala has produced no evidence Mr Kelishani was not entitled to charge GST. The quotes and invoices were issued by both the company and Mr Kelishani and had on them an ABN for Mr Kelishani and a separate ACN/ABN for the company. An ASIC search indicates the company (with ABN 60 654 967 763) is registered for GST from 1 November 2021.

149. I dismiss this aspect of the claim.

Refund of amounts paid for Manly Works

150. There is no evidence of defective work or other losses. I also find the amounts in Table 1 of the SOC do not match the invoices and quotes. The refund amount sought is not quantified. I reject this claim.

151. As Tala has not been successful on any counts, I make orders dismissing its application.

**********

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: 26 May 2025