NOTE 58. Add: Halton International Inc (Holding) SARL v Guernroy Ltd [2005] EWHC 1968 (Ch) at [155]; Blythe v Northwood [2005] NSWCA 221 at [78]; Stevens v Premium Real Estate Ltd [2009] NZSC 15. 

NOTE 59.  Add: Murad v Al-Saraj [2005] EWCA Civ 959 at [110] & [120]; Aequitas v AEFC [2001] NSWSC 14, (2001) 19 A.C.L.C. 1,006 at [443]-[448]; Edmonds v Donovan [2005] VSCA 27 at [78].  In Take v BSM Marketing [2006] EWHC 1085 (QB), an agent was found to have acted in breach of fiduciary duty by competing with his principal, but was only liable to pay compensation for losses which would not have been suffered but for his breaches of duty: at [189] & [206].

NOTE 60. Add: Gwembe Valley Development Co Ltd v Koshy [2003] EWCA Civ 1478; [2004] 1 BCLC 131 at [147] and [159].

NOTE 61. Add: The defendant director in Gwembe Valley Development Co Ltd v Koshy [2003] EWCA Civ 1478; [2004] 1 BCLC 131 was found to have acted dishonestly in not disclosing his interest in a transaction and was nonetheless held not liable to pay equitable compensation on the basis that his breach had not been proven to have caused loss to his company: see [135] and [159].

NOTE 62. Delete entire note and replace with following: Swindle v Harrison, above, at 718, 726 & 733.  Thus, the primary onus is on the principal (or beneficiary) to show that "but for the breach, the beneficiary would not have acted in the way which has caused his loss": Nationwide Building Society v Balmer Radmore (Introductory Sections) [1999] Lloyd's Rep. P.N. 241 at 278.  If this onus is met, the court may draw inferences (but cannot merely speculate) as to what would have happened if the fiduciary had performed his duty properly, and in the absence of evidence to justify such inferences the beneficiary is entitled to be placed in the position he was in before the breach occurred, unless the fiduciary (on whom the onus will lie) is able to show what the principal (or beneficiary) would have done if there had been no breach of fiduciary duty: Balmer Radmore, above at 278-279.  This approach, which places the onus on the fiduciary after the beneficiary has met an initial burden of proof is slightly different from the approach in Canada and New Zealand where, adapting the Privy Council's comment in Brickenden v London Loan & Savings Co [1934] 3 DLR 465 at 469, it has been held that the fiduciary bears the burden of proving that the principal would have acted in the same way if it wishes to avoid an award of compensation; and mere speculation will not suffice to convince the court of this, but inferences can be drawn from the evidence where they are clear: Commerce Capital Trust Co v Berk (1989) 68 O.R. (2d.) 257 at 261; Hodgkinson v Simms (1994) 117 D.L.R. (4th.) 161 at 200; Everist v McEvedy [1996] 3 N.Z.L.R. 348 at 355; Gilbert v Shanahan [1998] 3 N.Z.L.R. 528 at 535; Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 N.Z.L.R. 664 at 687; Taylor v Schofield Peterson [1999] 3 N.Z.L.R. 434 at 445-446; Maruha Corp v Amaltal Corp Ltd [2007] NZSC 40 at [30].  However, the difference in approach is unlikely to matter in terms of the practical outcome of most cases: even in Swindle v Harrison, where the onus of proof was on Mrs Harrison, her claim failed not because she had failed to show that she would have acted differently, but because it was clear from the evidence that she would not have acted differently. 

ADD AT END OF PARAGRAPH: If causation is made out so that a compensation award is available, the fiduciary does not avoid responsibility to compensate for the full amount of that loss by having diverted a profitable opportunity to a partnership (or other vehicle) which is only partly owned by the fiduciary: Re MDA Investment Management Ltd [2004] EWHC 42 (Ch) at [4].