Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11

ORDER Appeal allowed with costs. Set aside the orders of the Court of Appeal in so far as they apply to the appellant and in lieu thereof order that the respondent's appeal to that Court be dismissed with costs in so far as it applies to the appellant. Order that judgment in the respondent's action against the appellant be entered in favour of the appellant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1990, April 9 Mason C.J. and Gaudron J.

The respondent, Akhil Holdings Ltd. ("Akhil"), commenced action by statement of claim in the Supreme Court of New South Wales in September 1978 against the appellant, Banque Commerciale S.A. ("the Bank"). Deauville Nominees Pty. Ltd. ("Deauville") and Maurice Messara were also defendants to the action. Deauville was a company controlled by Mr. Messara. It was pleaded in the statement of claim that Mr. Messara caused and procured the Bank to transfer from its ownership certain shares held as trustee for Akhil. It was further pleaded that between October 1970 and July 1971 some shares were transferred to purchasers for value and that in about December 1970 other shares were transferred to Deauville.

The Bank, Deauville and Mr. Messara, by separate defences filed in the action, each pleaded that the action was statute-barred. No reply was filed to the Bank's defence, but the defences of Deauville and Mr. Messara each attracted a reply pleading, inter alia, that Akhil's claim was "an action in respect of a fraudulent breach of trust by the [Bank] who was privy or a party to the breach of trust while a trustee". A copy of the pleading as filed against Mr. Messara — Amended Reply to Defence of Third Defendant — was, on 30 March 1983, served on the Bank's solicitors.