Agam v Moon - [2025] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2341

[2025] NZHC 1748

BETWEEN
AVRAHAM YAACOV AGAM

Plaintiff

AND

JONATHAN ANDREW MOON

First Defendant

OUTER ASPECT IP LIMITED

Second Defendant

Hearing: 27 June 2025

Counsel:

KT Glover and O Zambuto for Plaintiff

F Geiringer and D Nilsson for Defendants

Judgment:

30 June 2025

JUDGMENT OF BECROFT J

[Application for interim stay of judgment]

This judgment was delivered by me on 30 June 2025 at 4pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:
Hudson Gavin Martin, Auckland LeeSalmonLong, Auckland
K Glover, Shortland Chambers, Auckland
F Geiringer, Lambton Chambers, Wellington

AGAM v MOON & ANOR [2025] NZHC 1748 [30 June 2025]

The application

[1]This is a stay application.

[2]The application came about in this way.

[3] On 23 September 2024, the plaintiff, Mr Agam, obtained a without notice pre- claim interim injunction against Mr Moon and his computer production company, Outer Aspect IP Limited (Outer Aspect).

[4] The injunction prevented the sale of approximately 3,700 artworks held by Outer Aspect. Mr Moon and Outer Aspect had carried out work on the artworks and helped to produce them. Mr Agam says the artworks in dispute are worth about $20 million.

[5] On 18 December 2024,1 I ruled that the interim injunction should continue subject to Mr Agam depositing $2 million into an agreed interest-bearing trust account, essentially as security. This was because Outer Aspect said that it was owed more than
$4 million by Mr Agam for its work in helping to produce his artworks. It said the unpaid debt meant it could not repay a loan to Fifo Capital. Without payment by Mr Agam of the security, Fifo would enforce its debt, likely liquidate the company, and enforce a personal guarantee against Mr Moon leading to his bankruptcy. The $2 million security was to be paid by 17 January 2025.

[6]I immediately gave leave to Mr Agam to appeal my judgment.

[7]The security was not paid. Consequently, the interim injunction lapsed.

[8] The Court of Appeal hearing has been delayed several times and is now scheduled for 29 July 2025.

1 Agam v Moon [2024] NZHC 3907.

[9] On 29 April 2025, Mr Agam filed several applications the first of which was for rescission of my decision varying the existing interim injunction to include the security payment condition. Alternatively, he sought a stay of that judgment.

[10] For various reasons, set out in the relevant judgment, only the rescission argument application could be heard and, even then, on short notice.

[11]I dismissed the application for rescission.2

[12] Mr Agam then activated his urgent request for a hearing of the alternative stay application. A half day was required. Such could not be accommodated. However, the Executive Judge directed the matter be heard for one hour, with submissions of no more than five pages, on an “interim interim” basis.

[13] There is no need for me to…

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.

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Details

Case: [2025] NZHC 1748
Decision Date: 30 June 2025

CaseChat Overview and Summary

The High Court of New Zealand considered an interim stay application in the case of Agam v Moon and Outer Aspect IP Limited. Avraham Yaacov Agam, the plaintiff, sought to stay an earlier judgment that imposed a condition requiring him to deposit $2 million into a trust account as a prerequisite to continuing an interim injunction. The injunction had been granted to prevent Jonathan Andrew Moon and his company, Outer Aspect IP Limited, from selling approximately 3,700 artworks. Moon and Outer Aspect claimed the artworks were worth around $20 million and argued that Agam owed them over $4 million for their work in producing the artworks. The court previously ruled that the injunction should continue, but only if Agam deposited the security amount. When the security was not paid, the injunction lapsed. Agam then filed applications for rescission of the December judgment, which were dismissed. This led to the current application for a stay of the security condition.

The court considered the urgency of the matter, as 16 of Agam's artworks, deemed the most valuable, were ready for sale by a United States-based auction house. Moon and Outer Aspect argued they had taken reasonable steps to ensure a profitable sale, which would limit the impact of the lack of a stay. Agam, however, refused to cooperate in the sale, believing it should not proceed without his involvement. The court made an "interim interim" order, requiring the defendants to deposit the proceeds of any sale of the 16 artworks into an interest-bearing trust account until the stay application could be determined. This order aimed to balance the interests of all parties and maintain the status quo.

The court deliberated on the application of freezing order principles to the stay application and the lateness of the application. It decided that freezing order principles did not explicitly apply to this case, as the stay was not sought under Part 32 of the High Court Rules 2016. The court found that Agam's approach in waiting for the Court of Appeal's resolution was not unreasonable. It also determined that the sale of the 16 artworks could render the appeal nugatory if the proceeds were not preserved, despite Moon and Outer Aspect's arguments to the contrary. The court concluded that preserving the proceeds in a trust account was the fairest interim measure until the stay application was fully argued. The order would be reviewed again when the stay application was heard, with affidavits to be filed five working days prior to that hearing.

Orders