(E) RECOGNITION OF A BENEFICIAL INTEREST
Where the defendant has received and retains property in which the claimant has a continuing equitable proprietary interest, the defendant may be required to hold that property on trust for the claimant, who has a beneficial interest in it.[1] This means that the claimant can call for the return of the property whenever he or she wishes.103 This type of proprietary restitutionary remedy involving the transfer of property is not available at Common Law. Consequently, if the defendant has property in which the claimant has retained a legal proprietary interest, the claimant is only able to obtain the value of the property and is not able to recover the property itself.
(F) EQUITABLE CHARGE
Where the defendant has property in which the claimant has an equitable proprietary interest, an alternative restitutionary remedy to that of recognizing that the claimant has a beneficial interest in it is for the courts to impose an equitable charge over it.[2] This is a proprietary restitutionary remedy, since it recognizes that the claimant has a proprietary interest in the property to secure repayment of what the defendant owes to the claimant. Consequently, although the claimant cannot compel the defendant to transfer the property to him or her, the claimant’s claim for repayment is given priority over the claims of unsecured creditors of the defendant.
