Lam v Ausintel Investments Australia Pty Limited

The application before the High Court of Australia concerned Lawrence Kwok Fou Lam (the applicant) and Ausintel Investments Australia Pty Limited, Bill Acceptance Corporation Limited, and Australian Guarantee Corporation Limited (the respondents). The dispute centred on whether a failure to disclose material information during commercial negotiations constituted conduct that contravened section 52 of the *Trade Practices Act* 1974 (Cth).

The primary legal issues before the Court were twofold. Firstly, the Court was required to determine when, in the context of section 52 of the *Trade Practices Act*, a duty to speak or a duty not to remain silent arises during commercial negotiations. This involved considering whether such a duty could exist independently of common law or equitable principles, or if it required the existence of a pre-existing relationship that would give rise to such duties at common law or in equity. Secondly, the Court needed to consider the circumstances required for an applicant to gain relief under section 52 and the associated damage provisions, specifically focusing on the meaning of being "affected by conduct" and whether principles of reliance or inducement, as established in cases like *Gould v Vaggelas*, should be applied to claims under the *Trade Practices Act*.

The applicant argued that the definition of "conduct" in section 4(2) of the *Trade Practices Act*, which includes "refraining, otherwise than inadvertently from doing an act," encompassed an advertent failure to disclose material matters. The applicant contended that this advertent refraining from disclosure, in the context of commercial negotiations, could be sufficient to establish a contravention of section 52, without necessarily needing to prove the existence of a relationship that would impose a duty to speak at common law or in equity. The Court was also asked to consider the principles of reliance and inducement in relation to claims for relief under section 52.