A recipient asserting the defence of change of position to a restitutionary claim must adduce evidence from its controllers as to their state of mind at material times; failure to do so precludes a finding that any change of position was in good faith or on the faith of the receipt. Individually executed agreements between a responsible entity and investors in a managed investment scheme are not incorporated into the scheme constitution merely because a pro forma version is annexed to the constitution, and cannot be varied by special resolution amending the constitution. The satisfaction of a demand for payment which is wrongly made does not, of itself, involve the paying party assuming that the recipient may retain the payment irrespective of the true legal position, and is insufficient to found an estoppel by convention.
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