137 I do not find that Mr Grogan intentionally determined not to disclose the McAlpine guarantee to Mrs White. However, unlike Bristol and West Building Society there existed in this case an actual conflict between the duty to disclose the McAlpine guarantee and the duty not to breach Mr Maggio's confidence. In those circumstances the absence of an intentional non disclosure might be thought not to absolve the solicitors of breach of fiduciary duty.
138 Based upon the solicitor's understanding of the transaction (that the funds were being jointly borrowed to refinance an existing loan and not that they were to be invested in an overseas "deal" which would return a fixed sum to Mrs White at the end of six months) I would be inclined to accept Mrs White's submission that they were in breach of the fiduciary duty they owed to her by the failure to disclose the McAlpine guarantee. Mr Wilson submitted that it would flow from such a finding that Mrs White was entitled to equitable compensation for that breach. The measure of the compensation was said to be the payout figure under the mortgage to the IMB. In this respect it was submitted, firstly, that had Mr Grogan disclosed the McAlpine guarantee the IMB would not have approved the loan. Mrs White should be restored to the position that she would have been in had the breach not occurred. I do not accept this submission. The breach, if it be one, was the failure to disclose information touching on Mr Maggio's financial position to Mrs White. I do not find that the solicitors were under any duty to disclose the McAlpine guarantee to the IMB.
139 Secondly Mr Wilson relied upon the statement of principle of Lord Thankerton delivering the judgment of the Privy Council in Brickenden v London Loan & Savings Co [1934] 3 DLR 465 at 469:
"When a party, holding a fiduciary relationship, commits a breach of his duty by non-disclosure of material facts, which his constituent is entitled to know in connection with the transaction, he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction, because the constituent's action would be solely determined by some other factor, such as the valuation by another party of the property proposed to be mortgaged. Once the Court has determined that the non disclosed facts were material, speculation as to what course the constituent, on disclosure, would have taken is not relevant".
140 In O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 the Chief Justice (with whom Meagher JA agreed) noted (at 276) that the authority of Brickenden had been left open by the High Court in Maguire v Makaronis (1997) 188 CLR 449. His Honour cited the judgment of Brennan CJ, Gaudron, McHugh and Gummow JJ in which reference was made to "the criteria which supply an adequate or sufficient connection between the equitable compensation claimed and the breach of fiduciary duty". Generally in discussing causation and equitable compensation the Chief Justice observed that the law in Australia accords with the passages from the judgment of Lord Browne-Wilkinson in Target Holdings Ltd v Redferns [1996] 1 AC 421 at 432E-H noting his Lordship's ultimate conclusion at 439: