Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd

The High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a dispute between Banque Commerciale SA, En Liquidation (the appellant) and Akhil Holdings Ltd (the respondent). The core of the dispute involved allegations of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) and the *Australian Securities and Investments Commission Act 2001* (Cth) (formerly the *Australian Securities Commission Act 1989* (Cth)). The appellant sought to recover moneys advanced to the respondent, which the respondent resisted by alleging the appellant had engaged in conduct that induced it to enter into the transactions.

The central legal issues before the High Court were whether the appellant had engaged in misleading or deceptive conduct in contravention of the relevant legislation, and if so, what the consequences of that contravention would be for the appellant's claim to recover the moneys advanced. Specifically, the court had to determine whether the representations made by the appellant, or its silence in certain circumstances, constituted misleading or deceptive conduct, and whether such conduct had a causal connection to the respondent's decision to enter into the loan agreements.

The High Court, in its joint judgment, affirmed that the appellant had indeed engaged in misleading and deceptive conduct. The court reasoned that the appellant had failed to disclose material information to the respondent, which, in the context of the representations made, created a misleading impression. The court applied the principles established in cases concerning misleading representations, emphasizing that silence can be misleading if there is a reasonable expectation that all material facts will be disclosed. Consequently, the court held that the appellant's claim for recovery was defeated by its own contravention of the *Trade Practices Act* and the *Australian Securities and Investments Commission Act*.

The High Court allowed the appeal in part, setting aside the orders of the Supreme Court of Victoria and remitting the matter to that court for further determination of the appropriate remedies, including the extent to which the respondent's loss should be offset against any moneys found to be due to the appellant.