Invisalign Australia Pty Ltd v SmileDirectClub LLC

Invisalign Australia Pty Ltd appealed against a decision of the Federal Court, where the primary judge dismissed its proceeding against SmileDirectClub LLC (SDC). The proceeding was brought under ss 18 and 29 of the Australian Consumer Law (ACL) for alleged misleading or deceptive conduct in relation to the costs of SDC’s aligner treatment. The primary judge found that none of the alleged representations was conveyed, except for one which SDC admitted had been made but denied was misleading or deceptive. The primary judge dismissed the proceeding.

The appeal was heard on 13 grounds. The court held that it would allow grounds 3, 4, 5, 8, 9 and 11 of the appeal. It proposed to allow the appeal and grant a new trial of the proceeding, before a different judge, in respect of the Price Comparison Representations, the Lower Cost Representation and the Comparable Treatment Representations. However, given that SDC US was ordered to be liquidated and that SDC AU no longer trades, it is unlikely that a new trial will be ordered. The further hearing of the appeal was adjourned to a date to be fixed. The parties were required to file any written submissions on the future conduct of the appeal within 21 days.