ABSTRACT
Subrogation is a restitutionary remedy concerned with the replacement of one claimant with another.1 Chapter 19 considered Tracing, which is a process which offers both some striking similarities with and differences from the remedy of subrogation. Equitable tracing claims are based on a breach of trust which results in the original property rights of the claimant being pursued into substitutes for that property or into mixtures of that property with other property. Equitable tracing constitutes the substitution of one piece of property for another; whereas subrogation constitutes the substitution of one claimant for another.2 In short, subrogation permits a person to be substituted for a claimant in suing a defendant, the best example being the situation in which an insurance company sues a defendant in respect of a car accident in relation to which the insurance company has paid out to its customer and thus bought the right to sue the defendant on the customer’s behalf. The principal aim of this chapter is to examine the property law aspects of subrogation. The issue of subrogation is frequently left out of books and courses; however, it acts as a useful counterpoint to tracing and the general discussion of the use of the law of property to assert title in property where none existed before.
