(ii) The Relationship Between Proprietary Restitutionary Claims and Restitution for Wrongs
There are certain wrongs which are dependent on proof that the defendant has interfered with the claimant’s proprietary rights, particularly the torts of conversion and trespass. Should restitutionary claims relating to such torts be treated as founded on the wrong or as involving the vindication of proprietary rights? This is a difficult question, but the preferable view is that such claims are best treated as founded on the wrong. This is for two reasons: first, because the wrong itself must be specifically pleaded, and secondly, because the remedy which is available is not necessarily restitutionary, but may involve the award of compensatory damages. This is a characteristic of a claim founded on wrongdoing rather than vindication of proprietary rights, for which the remedy must be restitutionary.
Where the claimant seeks a restitutionary remedy in respect of a wrong committed by the defendant the remedy will usually be personal. There are, however, cases where the defendant has been awarded a proprietary restitutionary remedy and the event which triggered this was a wrong. In such cases there is clearly an overlap between restitution for wrongs and the vindication of property rights. It is preferable, however, to treat such claims as ultimately founded on the wrong, since it is the wrong which triggers the recognition of the claimant’s proprietary right.