ABSTRACT
What criteria ought to govern the award of a proprietary remedy?1 The question is deceptively simple, so it should come as no surprise that attempts to answer it have resulted in a complex and inconclusive theoretical literature. The difficulties involved in identifying coherent criteria for the award of proprietary remedies are well known. First, the creation of new property rights by court order is not always clearly distinguishable from the enforcement of pre-existing property rights.2 Second, assuming that a proprietary order can be made, it is uncertain when it will be preferred to a personal remedy. Finally, if a proprietary remedy is preferable, will the claimant be entitled to a proportionate share of the disputed property (either a resulting or constructive trust) or only to a security interest over the property (the equitable lien)? The cases give little help in answering these questions; they are mostly ‘a wilderness of individual instances’, being for the most part decisions on their own facts from which few general propositions can be derived.
