Mosqueira v Garate - [2023] NZHC 3737

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000497

[2023] NZHC 3737

BETWEEN
CIRILO EDUARDO SEQUEIROS MOSQUEIRA

by his litigation guardian, Eduardo Sequeiros Garate

Plaintiff

AND

JORGE SEQUEIROS GARATE

Defendant

Hearing:
7 – 10 and 14 – 16 November 2022

15 December 2022

Counsel:

J B Murray for Plaintiff

C R Goode and H T Rogers for Defendant

Judgment:

18 December 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 18 December 2023 at 12 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

SEQUEIROS MOSQUEIRA v SEQUEIROS GARATE [2023] NZHC 3737 [18 December 2023]

Table of Contents

INTRODUCTION [1]

RELEVANT FACTUAL BACKGROUND [14]

The Sequeiros family members and how they came to New Zealand                   [17] Eduardo purchases John Davis Road property and View Road property  [29] Cirilo and Flor move to New Zealand  [33]
Accounting for the use of Lima Funds  [37]
Repairs to John Davis Road  [40]
Transfer of title to John Davis Road to Flor and Cirilo; Eduardo keeps View Road
[42]

Eduardo purchases Boundary Road property on behalf of Gabriel  [49] Cirilo writes to his brother-in-law about events since arriving in New Zealand [50] Jorge buys Boundary Road  [51]
Cirilo writes to a friend about events since arriving in New Zealand                   [54] Beneficial ownership of Boundary Road changes between Jorge and Gabriel [56] Eduardo agrees to buy back Boundary Road property  [59]
Jorge moves into John Davis Road property  [60]
Eduardo sells View Road property  [64]
Cirilo has appointments with specialist geriatrician and is referred to Alzheimer’s Auckland  [65]
The 2010 transaction  [68]
The 2010 wills  [80]
Eduardo makes handwritten amendments to Flor’s 2010 will  [83] Cirilo has further engagements with Dr Harris and Dementia Auckland  [85] Cirilo and Flor make new wills  [89]
Further engagement with medical care  [90]
The 2013 transaction  [93]
Cirilo sees Dr Harris again  [107]
Cirilo and Flor make new wills  [108]
Eduardo lodges caveat against title to John Davis Road  [109]
Eduardo makes complaint to the New Zealand Law Society  [113] Gabriel returns from the US and uplifts Cirilo and Flor from John Davis Road [118] Proceedings begin  [123]

FIRST CAUSE OF ACTION – LACK OF CAPACITY  [125]
Relevant evidence  [127]
The reports of Dr Harris  [128]
Reports and evidence of Ms Venville and Ms Ellerby-Mutu  [142]
The evidence and reports of Mr Dower  [150] Correspondence with NZLS and decision of the Auckland Standards Committee 3 [168] Evidence of Dr Casey  [171]
Evidence of Dr Jenner  [174]
Joint statement by Dr Casey and Dr Jenner  [185]

Submissions for Eduardo [192]

The 2010 transaction [193]

The 2013 transaction [199]

Submissions for Jorge [204]

Analysis of first cause of action [210]

SECOND CAUSE OF ACTION – UNDUE INFLUENCE [246]

Submissions for Eduardo [249]

Transactions call for an explanation [250]

Unsatisfactory aspects of the transactions [251]

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 [2023] NZHC 3737
Case: [2023] NZHC 3737
Decision Date: 18 December 2023

CaseChat Overview and Summary

The High Court of New Zealand Auckland Registry presided over the case of Mosqueira v Garate, a proceeding initiated by Eduardo Sequeiros Garate and Gabriel Sequeiros, acting as litigation guardians for their parents, Cirilo Eduardo Sequeiros Mosqueira and Flor Sequeiros. The plaintiffs sought to challenge the validity of two property transactions from 2010 and 2013, through which ownership of a property at 53 John Davis Road, Mount Roskill, Auckland, was transferred to Jorge Sequeiros Garate, the defendant. The plaintiffs contended that Cirilo lacked the mental capacity to enter into these transactions, that Jorge exerted undue influence over their parents, and that the transactions were unconscionable. The court examined the evidence and legal arguments presented by both parties, ultimately dismissing all claims and the counterclaim.

The court found that Cirilo had the mental capacity to enter into both transactions and that the transactions aligned with the wishes of Cirilo and Flor. The court was not convinced that Jorge knew or should have known that Cirilo lacked the mental capacity. Furthermore, the court concluded that the transactions were not procured by Jorge's undue influence, as there was a satisfactory explanation for the transactions, and independent legal advice was obtained. Lastly, the court held that the transactions were not unconscionable, as there was no unconscientious taking of advantage by Jorge.

The court also dismissed the counterclaim brought by Jorge for damages against Eduardo, finding that Eduardo had brought the proceeding in the name of Cirilo and that the rationale for the damages sought by Jorge was better addressed in costs or exemplary damages. Consequently, the court dismissed all claims and the counterclaim, and indicated that parties may file a memorandum on costs if desired.

Orders