Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd

The plaintiff, Comgroup Supplies Pty Ltd, initiated proceedings against the first defendant, Products for Industry Pty Ltd, and the second defendant, a company connected to the first defendant. The plaintiff claimed restitution of monies paid under protest as well as damages for misleading and deceptive conduct under the Australian Consumer Law. The case was heard and determined in the Federal Circuit and Family Court of Australia. The plaintiff sought restitution of payments made to the first defendant, alleging they were made by mistake and that the first defendant had failed to take reasonable steps to discover the mistake. The plaintiff also claimed damages for misleading and deceptive conduct, alleging that the first defendant provided misleading invoices and that the second defendant was involved in the misleading conduct.

The court considered whether the first defendant was entitled to the change of position defence, whether the plaintiff's claim for restitution was made out, and whether the plaintiff's claim for misleading and deceptive conduct was valid. The court found that the first defendant had established the change of position defence in part, and therefore the amount of restitution was reduced accordingly. The court held that the plaintiff's claim for fraudulent misrepresentation failed as the plaintiff could not prove that the first defendant knew the representation was false. The court also found that the plaintiff's claim for misleading and deceptive conduct was made out, but the plaintiff was only entitled to precautionary apportionment of damages.

The court ordered that the first defendant pay the plaintiff $25,886.94 in restitution, and that the second defendant pay no damages. The court dismissed the plaintiff's third party claims. The court's decision provides guidance on the application of the change of position defence in restitution claims and the elements required to establish a claim for misleading and deceptive conduct.