(C) THE VINDICATION OF PROPERTY RIGHTS WITH WHICH THE DEFENDANT HAS INTERFERED

(i) The Nature of Restitutionary Claims Founded on the Vindication of Property Rights

Where the claimant has a proprietary right to an asset which has been received by the defendant, the claimant may seek to obtain a restitutionary remedy to vindicate that right,⁵¹ regardless of whether it previously existed or has been created by operation of law. Such proprietary restitutionary claims may take two forms.

• (1) Where the defendant received property in which the claimant has a proprietary interest and the defendant has retained that property or its proceeds, the claimant can obtain a proprietary restitutionary remedy in respect of that property itself, the cause of action being the vindication of the claimant’s continuing property rights.
• (2) Where the defendant received property in which the claimant had a proprietary interest at the time of receipt but that interest has since been lost, the only restitutionary remedy available to the claimant is a personal one, representing the value of the property which the defendant has received. But the cause of action can still be the vindication of property rights, since the claimant can show that he or she had a proprietary interest in the property received by the defendant at the time of the receipt.