Mosqueira v Garate - [2024] NZHC 1167

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000497

[2024] NZHC 1167

BETWEEN
CIRILO EDUARDO SEQUEIROS MOSQUEIRA

by his litigation guardian, Eduardo Sequeiros Garate

Plaintiff

AND

JORGE SEQUEIROS GARATE

Defendant

On the papers

Counsel:

J B Murray for Plaintiff C R Goode for Defendant

Costs Judgment:

10 May 2024

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 10 May 2024 at 12:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
Vallant Hooker & Partners, Auckland C R Goode, Auckland
H T Rogers, Auckland
Chambers Craig Jarvis, Auckland

MOSQUEIRA v GARATE [2024] NZHC 1167 [10 May 2024]

[1] In my judgment dated 18 December 2023, I dismissed all the claims brought by Eduardo Sequeiros Garate (Eduardo) and his brother, Gabriel Sequeiros (Gabriel), as litigation guardians for their later deceased parents, Cirilo Eduardo Sequeiros Mosquiera (Cirilo) and Flor Sequeiros (Flor), against their brother, Jorge Sequeiros Garate (Jorge) in relation to the transfer to Jorge by Cirilo and Flor of their home at 53 John Davis Road, Mount Roskill, Auckland (John Davis Road).1

[2] I also dismissed the counterclaim brought by Jorge, which took up little of the hearing time.2

[3] As explained in the judgment, Flor died before the hearing in November and December 2022, with the consequence that Gabriel could no longer be litigation guardian for his mother, although he gave evidence in support of the proceeding, which was continued by Eduardo. Cirilo died between the hearing and the issue of my judgment. However, I considered it was still appropriate to issue my judgment because the outcome of the proceeding would be important to the disposition of the estates of Cirilo and Flor.3

[4]At the conclusion of my judgment, I stated:

[308] As the successful party, Jorge would usually be entitled to an award of costs. In this case, he might be justified in seeking an uplift on scale costs. However, because, as I understand the situation, Jorge is legally aided, he is not able to seek an award of costs.

[309] However, if [counsel for Jorge] wish to address me on costs on behalf of Jorge, they may file a memorandum of no more than six pages by 30 January 2024. Any reply on behalf of Eduardo, also of no more than six pages, may be filed by 29 February 2024.

[5] Ms Goode, counsel for Jorge, filed a memorandum dated 30 January 2024 in which she submitted that Jorge should be awarded indemnity costs of $153,527.00. That is the amount of legal aid spent in defending this proceeding and which the Legal Services Commissioner has required Jorge to repay in accordance with the Legal Services Act 2011. That amount is secured by a charge against the title to John Davis

1      Mosqueira v Garate [2023] NZHC 3737 [Substantive Judgment].
2      At [304]–[305].
3      At [4]–[5].

Road. Ms Goode also provided a breakdown of scale costs, calculated…

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 Mosqueira v Garate

Details

AGLC: Mosqueira v Garate [2024] NZHC 1167
Case: [2024] NZHC 1167
Decision Date: 10 May 2024

CaseChat Overview and Summary

In Mosqueira v Garate, the High Court of New Zealand addressed the issue of costs following a dismissed proceeding concerning the transfer of property. The plaintiff, Cirilo Eduardo Sequeiros Mosquiera, was represented by his litigation guardian, Eduardo Sequeiros Garate, who, along with his brother Gabriel, brought claims against their brother Jorge Sequeiros Garate regarding the transfer of their parents' home at 53 John Davis Road, Mount Roskill, Auckland. The court dismissed all claims and the counterclaim, finding that Eduardo and Gabriel acted improperly and unreasonably in pursuing the case, primarily for their own interests rather than their parents'.

The legal issues before the court primarily concerned the assessment and awarding of costs, specifically whether Jorge, who had been legally aided during the proceeding, should be compensated for the costs he had incurred in defending the claims. Given the nature of the litigation, the court had to determine whether Eduardo should bear the full costs as the Legal Services Commissioner had required Jorge to repay, or if any reductions or offsets were warranted.

The court found that Eduardo and Gabriel had acted improperly and unnecessarily in bringing the proceeding, justifying an award of indemnity costs. The court ruled that Eduardo, as the remaining active party, should pay Jorge the full amount of $153,527.00, which was the sum the Legal Services Commissioner had determined Jorge had to repay. The court rejected any deductions proposed by Eduardo's counsel regarding certain aspects of the legal aid grant and scale costs, affirming that the costs were justified and should not be borne by Jorge.

In conclusion, the court ordered that the plaintiff, by his litigation guardian Eduardo Sequeiros Garate, pay the defendant, Jorge Sequeiros Garate, costs of $153,527.00. The court did not award costs for the preparation of the costs application, finding that such an award was not warranted in this case.

Orders