Advance Business Finance Pty Ltd v Zip Zap Pty Ltd

Advance Business Finance Pty Ltd (ABF) brought proceedings against Zip Zap Pty Ltd (Zip Zap) concerning alleged misleading or deceptive conduct in contravention of consumer protection legislation. The dispute arose from an invoice issued by Zip Zap, which ABF contended contained a direct misrepresentation and a misrepresentation by omission. Specifically, ABF alleged that Zip Zap failed to disclose a course of conduct and an association that it knew had the potential to impact recognised claims by financiers, such as ABF.

The primary legal issue before the court was whether Zip Zap's conduct, including the invoice and the non-disclosure of its associated conduct and relationships, constituted misleading or deceptive conduct under the relevant consumer law provisions. The court was also required to consider the principles of unjust enrichment and the circumstances under which a remedy of restitution might arise, as well as the principles of causation and assessment of damages in relation to the alleged misleading conduct. The admissibility and weight of evidence, including implied admissions and the use of lies told as evidence of untruthfulness, were also relevant considerations.

Justice Burnett found that Zip Zap had engaged in misleading and deceptive conduct. The court reasoned that the invoice, when viewed in conjunction with the undisclosed course of conduct and associations, created a misleading impression. The failure to disclose these matters was considered a misrepresentation by omission, particularly given Zip Zap's knowledge of the potential impact on financiers. The court applied established principles of consumer law regarding misleading and deceptive conduct, focusing on the overall impression conveyed to a reasonable person in the circumstances. The court also considered the principles of unjust enrichment and the causal link between Zip Zap's conduct and any loss suffered by ABF.