The Brickenden principle (that a fiduciary cannot maintain that disclosure would not have altered the beneficiary's decision) does not apply where the non-disclosure involves a conflict of duty and duty (as opposed to conflict of interest and duty); in duty-duty conflict cases, the beneficiary must prove on the balance of probabilities that but for the non-disclosure they would not have entered the transaction. A solicitor's knowledge acquired in a different transaction is not imputable to a client under s 164 of the Conveyancing Act 1919 (NSW) where the retainer is limited to ensuring good security. A contract is not unjust under the Contracts Review Act 1980 (NSW) merely because of circumstances unknown to the party against whom relief is sought, though lack of knowledge may render the circumstance of less materiality.
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