What if it were BFL?
BFL always planned to deliver their hardware and eventually have.
Their claims about the hardware design and functionality were valid and at most? stages it did exist when they said they actually had hardware.
Their ability to deliver hardware was fatally incompetent (be it BFL or their suppliers, but it makes no difference in the delay, it is of course BFL's fault)
They may also have made claims of dates that they knew were false (one of either incompetence of false statements)
The Payonix issue is quite clearly different.
This company is making claims of producing and having hardware that they clearly did not produce and do not have.
That is called fraud and in this case is very simple to prove - if they don't have the hardware they said they already had and had mining, then, yep that's fraud.
Even if they send you your money back, it's still a clear cut case of fraud since they have stated they already have it and that it already works.