Sequeiros v Garate - [2018] NZHC 128

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2501 [2018] NZHC 128

IN THE MATTER
Of an application to appoint litigation

guardians

EDUARDO SEQUEIROS AND GABRIEL SEQUEIROS

Applicants

BETWEEN

CIRILO EDUARDO SEQUEIROS MOSQUEIRA AND FLOR SEQUEIROS Intended Plaintiffs

AND

JORGE SEQUEIROS GARATE Intended Defendant

Hearing: On the papers

Counsel

B Murray for Applicants
Intended Defendant in person

Judgment:

14 February 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 14 February 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Vallant Hooker & Partners, Auckland

SEQUEIROS v GARATE [2018] NZHC 128 [14 February 2018]

[1] I have before me an application to appoint litigation guardians for the intended plaintiffs in intended proceedings. In short, the applicants are the children of the intended plaintiffs, who they claim are incapacitated. The applicants want to commence proceedings on their behalf, seeking an order setting aside a transfer of their family home to the applicants’ brother, the intended defendant.

[2] The proceedings were commenced on a without notice basis. In a minute dated

20 October 2017, Downs J sought further submissions on the desirability of the applicants being appointed as litigation guardians as against persons independent of the family. The solicitor for the applicants responded that a requirement for the litigation guardian to be independent, in the sense of having no personal interest in the conduct or outcome of proceedings, was not accepted by this Court in Re Goldman.1
I was not convinced by this.2 I directed the applicants to either appoint an independent

person or serve the proceedings on the brother. They choose the latter.

[3] The positions of the applicant and the defendant can be stated succinctly. There is no dispute that the parents are currently incapacitated. However, the intended defendant submits the brothers are not acting in their parents’ interests, and if this matter is to proceed, the litigation guardian should be independent of the brothers.
Mr Murray, for the applicants, however, emphasised that complete independence is not required. Rather, the proper test is whether they have an adverse interest, citing (among other authorities) Re Goldman and JJC v Fairfax New Zealand Ltd.3 He further emphasised that the appointment of an independent litigation guardian unnecessarily increased the cost of the litigation. A lawyer approached by him required costs in advance, including in respect of any costs order.

Assessment

[4] Rule 4.30 states:4

1 Re Goldman [2016] NZHC 1010, [2016] 3 NZLR 331 at [26]-[29].
2 Recorded in my minute dated 6 November 2017.
3JJC v Fairfax New Zealand Ltd HC Auckland CIV-2011-404-5605, 15 September 2011 at [12]- [13].

4 High Court Rules 2016, r 4.30.

4.30 Incapacitated person must be represented by litigation guardian

(1) An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

(2) If a person becomes an incapacitated person during…

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 Sequeiros v Garate

Details

AGLC: Sequeiros v Garate [2018] NZHC 128
Case: [2018] NZHC 128
Decision Date: 14 February 2018

CaseChat Overview and Summary

The case of Sequeiros v Garate involves an application to appoint litigation guardians for the intended plaintiffs, who are the parents of the applicants. The applicants seek to challenge a transfer of their family home to their brother, the intended defendant. The court was required to decide whether the applicants could be appointed as litigation guardians for their parents, given that they have a personal interest in the outcome of the proceedings. The court found that while complete independence of the litigation guardian is not required, the applicants' interests must not be adverse to those of the intended plaintiffs. The court was satisfied that the conditions set out in the High Court Rules could provide sufficient protection against the litigation guardians' interests adversely affecting the intended plaintiffs' position.

The court found that the intended plaintiffs are incapacitated and that the applicants could be appointed as litigation guardians, subject to certain conditions. These conditions include an order requiring any withdrawal, abandonment, or settlement of the proceedings to be approved by the Court, and an order requiring the applicants to indemnify the intended plaintiffs for any costs award made in favour of the intended defendant. The court also noted that there is no conflict with the rule that representation is to be disregarded by the Court in making a costs award. The applicants were given the opportunity to file the proposed indemnity for approval prior to taking the next step in the proceeding.

The court made the orders as sought by the applicants, subject to the conditions noted above. The proceeding will then commence in the usual way, with the applicants acting as litigation guardians for their parents. The decision highlights the importance of ensuring that litigation guardians have no adverse interests in the proceedings, and that appropriate conditions are put in place to protect the interests of the intended plaintiffs.

Orders