(ii) Proprietary Restitutionary Remedies
The function of these remedies[1] is to enable the claimant to assert his or her property rights in an asset which is held by the defendant. These remedies are said to operate in rem. There are two types of proprietary restitutionary remedy: first, remedies by virtue of which the claimant can recover the asset which is held by the defendant; secondly, remedies which recognize that the claimant has a security interest in an asset which is held by the defendant. The key advantage of both types of remedy is that, since the claimant has a proprietary interest in an asset which is held by the defendant, the claimant’s claim to the asset ranks above other creditors of the defendant, with the result that the claimant is more likely to recover the asset or its value if the defendant becomes insolvent. The particular advantage of the first type is that the claimant can gain the benefit of any increase in the value of the asset. Crucially, the award of proprietary restitutionary remedies depends on the defendant retaining the asset in which the claimant has a proprietary interest.[2]
