Milir Enterprises Pty Ltd as Trustee for the Lynch Family Trust v Scarab Water (Pty) Ltd & Stephen Nicol

Milir Enterprises Pty Ltd as Trustee for the Lynch Family Trust (the plaintiff) brought proceedings against Scarab Water (Pty) Ltd and Stephen Nicol (the defendants) in the Supreme Court of Western Australia. The dispute concerned allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL), specifically in relation to representations made about the efficacy and capabilities of a water purification system. The plaintiff sought damages for losses allegedly suffered as a result of relying on these representations.

The central legal issues before the Court were whether the defendants had engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, in contravention of section 18 of the ACL. This involved determining the precise nature of the representations made by the defendants concerning the water purification system, whether those representations were factually accurate, and whether they were likely to mislead a reasonable consumer in the circumstances. The Court also had to consider the causal link between any contravening conduct and the loss or damage claimed by the plaintiff.

In its reasoning, the Court analysed the evidence presented by both parties, including expert testimony and documentary material, to assess the truthfulness and reasonableness of the representations made. The Court applied the established principles for determining misleading or deceptive conduct under the ACL, focusing on the likely effect of the conduct on a reasonable member of the target audience. The Court found that certain representations made by the defendants regarding the system's ability to remove specific contaminants and its overall performance were not substantiated and were likely to mislead consumers. Consequently, the Court found that the defendants had contravened section 18 of the ACL. The Court then proceeded to assess the quantum of damages to be awarded to the plaintiff, considering the losses directly attributable to the misleading conduct.