ABSTRACT
In addition, it is reasonably clear that tracing in equity is a ‘proprietary’ institution in the sense that a successful claimant is asserting his right to the property per se: hence, if the defendant is bankrupt, the claimant may recover ‘his’ property (assuming it exists and is identifiable) and he is not treated as a general creditor and does not have to take only a share of the defendant’s assets. It is a matter of ‘hard-nosed property rights’: Foskett v McKeown (2000). Obviously, such a powerful
remedy cannot go unchecked and it should come as no surprise that the availability of the remedies attached to tracing in equity are restricted to certain situations. Unfortunately, the precise circumstances in which tracing is available are not universally agreed – either academically or judicially – nor, indeed, is there agreement as to whether tracing ‘at law’ and tracing ‘in equity’ are as similar as they first appear. These issues, as well as problem questions testing an awareness of how tracing works in practice, are the staple of examinations.
