Sinclair v Brougham and Change of Position

Abstract

This article questions the application of the change of position defence in the context of an ultra vires transaction similar to that encountered in Sinclair v Brougham. To modern eyes, Sinclair v Brougham is a ‘bewildering’ authority but the author argues that the decision was the “just outcome” on the facts of that case and that the change of position defence has the ability to replicate the result in that case only if the application of the defence is moulded by the underlying policy considerations that made both the receipt and use of the funds ultra vires.