The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

Most of the remedies discussed in this book are personal remedies (apart from the proprietary consequences of rescission). Personal remedies, as the name suggests, are directed at the person of the defendant. The defendant must comply with the court order. By contrast, proprietary remedies are directed at property to which the defendant holds title, not to the person.

Proprietary remedies are difficult to allocate on a functional basis. We have not attempted to do so, as the rationales behind the imposition of proprietary remedies vary, and the criteria for their award are uncertain and contested.

It should be noted at the outset that this chapter does not purport to provide an exhaustive account of proprietary remedies. It is presumed that the reader already has a knowledge of trust law and the principles governing the creation of trusts and equitable liens. What follows is an overview from a remedies perspective.

The availability of proprietary remedies in common law is limited. Even where the defendant has committed a proprietary tort, the common law tends to award damages as a remedy. There is no rei vindicatio, or ability of a plaintiff to demand the return of property from a defendant, at common law. Consequently, the proprietary remedies we discuss in this chapter are equitable in origin.

This chapter does not purport to provide an exhaustive account of proprietary remedies. It proves a brief remedial overview of how proprietary remedies work. Because proprietary remedies are enforceable against property rather than a specific person, they are advantageous to plaintiffs in the following ways:

• Proprietary remedies are enforceable against third parties (except bona fide purchasers for value of the legal title without notice).

• Some proprietary remedies (constructive trusts) allow plaintiffs to enjoy appreciations in value of property, or to trace into exchange products

• Specific property may be able to be returned (important if property has special value to the plaintiff)

• Proprietary remedies confer advantages in insolvency by conferring priority to the plaintiff or taking property out of the insolvent estate.

Remedies evolve from the procedures that courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, which the jury then decided. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies, such as juries, cannot supervise the performance of contracts, ensure compliance with injunctions, or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the Court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life