Garate v Garate - [2025] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA73/2024
[2025] NZCA 108

BETWEEN	EDUARDO SEQUEIROS GARATE AND GABRIEL SEQUEIROS Appellants
AND	JORGE SEQUEIROS GARATE Respondent

CA319/2024
BETWEEN	EDUARDO SEQUEIROS GARATE Appellant
AND	JORGE SEQUEIROS GARATE Respondent

Court:	Katz and Campbell JJ
Counsel:	Appellants in person C R Goode for Respondent
Judgment: (On the papers)	10 April 2025 at 11.00 am

JUDGMENT OF THE COURT

A The application for an extension of time in CA73/2024 is declined.

BThe first‑named appellant in CA73/2024 must pay the respondent costs of $1,673 and usual disbursements.
CThe appellant in CA319/2024 must pay the respondent costs of $2,390 and usual disbursements.

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REASONS OF THE COURT

(Given by Campbell J)

This judgment determines two applications in these related appeals. The first is an application by the first‑named appellant in CA73/2024, Eduardo Sequeiros Garate, for an extension of time to apply for the allocation of a hearing date and to file the case on appeal. The second is an application by the respondent in CA319/2024, Jorge Sequeiros Garate, for costs following the abandonment by Eduardo of that appeal.

Background

Both appeals arise out of a High Court proceeding commenced in March 2018 by Eduardo and his brother, Gabriel Sequeiros, acting as litigation guardians for their parents, Cirilo and Flor Sequeiros. The proceeding challenged the lawfulness of two transactions concluded in 2010 and 2013 in respect of a Mt Roskill property. Ownership of that property was transferred by Cirilo and Flor to Jorge, who is Eduardo and Gabriel’s brother. Purporting to act in the interests of their parents, Eduardo and Gabriel claimed that:
(a)Cirilo did not have the mental capacity to enter into either transaction, which Jorge should have known;
(b)Cirilo and Flor placed their trust and confidence in Jorge and were subject to his undue influence; and
(c)Jorge’s undue influence caused Cirilo and Flor to enter into the transactions, which were unconscionable bargains.
Flor died in May 2022. As a result, Gabriel could no longer act as her litigation guardian. The proceeding was continued by Eduardo as Cirilo’s litigation guardian. Cirilo died in May 2023, some months after the High Court hearing, but before the judgment was delivered.
Van Bohemen J considered that, despite Cirilo’s death, it was appropriate to deliver judgment. On 18 December 2023, van Bohemen J delivered a judgment dismissing all claims brought by Eduardo on behalf of Cirilo.[1] The Judge set a timetable for costs memoranda, should they be sought by Jorge (who was legally aided).[2]
[1]Mosqueira (by his litigation guardian, Garate) v Garate [2023] NZHC 3737 [judgment under appeal] at [306].
[2]At [309].
Jorge sought costs. On 10 May 2024, van Bohemen J issued a costs judgment.[3] He was satisfied that Eduardo and Gabriel had “behaved poorly and unreasonably and, in terms of r 14.6(4) [of the High Court Rules 2016], acted improperly and unnecessarily in commencing and continuing the proceeding”.[4] For those reasons, he was satisfied that Eduardo, as the remaining protagonist following Flor’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garate v Garate

Details

AGLC: Garate v Garate [2025] NZCA 108
Case: [2025] NZCA 108
Decision Date: 10 April 2025

CaseChat Overview and Summary

This appeal concerns two related applications: Eduardo Sequeiros Garate's application for an extension of time to file the case on appeal and apply for the allocation of a hearing date in CA73/2024, and Jorge Sequeiros Garate's application for costs following Eduardo's abandonment of the appeal in CA319/2024. The Court of Appeal, consisting of Katz and Campbell JJ, heard the applications on the papers and delivered its judgment on 10 April 2025. The primary issue was whether the Court should grant Eduardo an extension of time to proceed with his appeal against the substantive decision of van Bohemen J in the High Court, as well as the costs incurred by Jorge due to Eduardo's abandonment of the appeal against the costs decision.

The Court of Appeal declined Eduardo's application for an extension of time. The Court found that Eduardo's delay in filing the case on appeal was significant and unjustified. The Court noted that Eduardo had been dilatory in the conduct of the appeal and that Jorge had suffered prejudice from the delay and Eduardo's conduct. Furthermore, the Court held that Eduardo was not authorised to bring the appeal or seek an extension as he and Gabriel, who was also an appellant, had not acted unanimously in bringing the appeal, which is a requirement when acting as executors and trustees. Consequently, the Court ruled that the interests of justice did not require an extension of time.

Regarding Jorge's application for costs in CA319/2024, the Court held that Eduardo should pay the costs of $2,390 as he abandoned the appeal against the costs decision. The Court found that despite Eduardo not being authorised to bring the appeal, a costs order against him was still available. The Court awarded costs for the steps Jorge took in opposing Eduardo's applications for a fee waiver and dispensation from the requirement to pay security for costs, as well as for filing a notice of appearance and a memorandum and submissions on costs.

In summary, the Court of Appeal declined Eduardo's application for an extension of time in CA73/2024 and ordered him to pay Jorge costs of $1,673 in that appeal. In CA319/2024, the Court ordered Eduardo to pay Jorge costs of $2,390 and usual disbursements.

Orders