Agam v Moon
[2025] NZHC 1748
•30 June 2025
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 set out any more of the factual background than this. The two judgments, already referred to, set out all the relevant facts, arguments, issues and other background.
This application
[14] This stay is specifically expressed, somewhat unusually, to be sought only in respect of the condition imposing payment of the $2 million security. Mr Glover, for Mr Agam, conceded that if his application was understood as being for the stay of my whole December judgment, the result would be the same. In that case, the then existing without notice interim injunction preventing the sale of any of the artworks would continue but without the condition as to payment of security.
[15]The stay application is said to be urgent.
[16] This is because 16 of Mr Agam’s artworks, described as the “jewels in the Crown” of all those artworks held by Outer Aspect, are now in the hands of a United States-based art auction house and have been readied for sale.
2 Agam v Moon [2025] NZHC 1498.
[17] The defendants say they have taken several reasonable steps to ensure a genuine and profitable sale. This, they say, will limit the impact of a lack of a stay and will protect all the parties’ interests.
[18] These steps include appointing an experienced international art auctioneer to supervise and guide the sale process; appointing a second art auctioneer to independently control the auction; creating a bespoke website to market the artworks; investing what further funds remain available to them in publishing material publicising the auction; and repeatedly inviting Mr Agam to cooperate with the sale to ensure its success. That does not seem to be disputed.
[19] Mr Agam has chosen not to involve himself at all with any sale of his artworks. He believes such sale should not be, and cannot lawfully be, carried out by Outer Aspect/Mr Moon.
[20] It emerged in argument that the 16 artworks earmarked for sale, have not yet been sold. Mr Geiringer, for the defendants, suggested the delay may have been caused by the Agam family “running interference.” But this is not a matter I can rule on in this application.
[21] The sale delay was news to Mr Glover. He had thought a sale had already taken place. His written submissions were limited to seeking an order for preservation of the proceeds of sale in an interest-bearing trust account. However, he orally applied for an order preventing the sale of the 16 artworks. Mr Geiringer resisted that application. He submitted the defendants ought to be allowed to proceed with sale and to use the proceeds to pay Fifo and discharge their legal costs.
Result
[22] This matter is urgent. I am unavailable for the next three weeks. I have decided, in the very short time available, to make the following “interim interim” order:
(a)The (net) proceeds of any sale of any or all of the 16 artworks, currently scheduled for auction with the United States art agent, and which may be paid to Mr Moon and Outer Aspect, are to be deposited by the defendants in an interest-bearing solicitor’s trust account until further order of the Court.
[23] This order best reflects the balance of convenience and will preserve the status quo until the stay application, which is now urgent, can be determined.
[24]I make no order preventing the sale of the 16 artworks.
[25] I make the order on the basis of the assurances provided by Mr Geiringer in his submissions, on behalf of his client, as follows:
(a)not to sell any of the artworks that the plaintiff claims are unauthorised;
(b)not to sell any of the artworks that were not manufactured by the defendants (the so called “Held Artworks”);
(c)not to sell more than 5% of the artworks; and
(d)not to sell more than 16 artworks without first notifying the Court of Appeal and the plaintiff (and the defendants have further offered to give such notice at least six weeks in advance of any sale).
[26]My summary of the key arguments and my responses are set out as follows.
Discussion
[27] First, Mr Geiringer is clear that the effect of the stay application, in substance, is to create a “freezing order” of the proceeds of sale. Therefore, in his view, the ordinary principles in Part 32 of the High Court Rules 2016 (Rules), dealing with freezing orders must apply. In particular, the recipient of frozen funds (here the defendants) should be entitled to use them for ordinary course of business dealings
and for legal fees in the same way as applies to funds frozen under Part 32. Mr Geiringer has made clear that the funds will only be used for these purposes.
[28] Mr Geiringer’s most up-to-date information is that Fifo has now invoked a penalty interest rate for the outstanding loan and may commence enforcement action within days, at the discretion of Fifo. In his view, the money should be made available to avoid that happening.
[29] Mr Glover disputes that freezing order principles apply in this case. He submits that all he is seeking is simply a necessary component of the stay application to ensure that the benefits of any Court of Appeal judgment in his client’s favour are not rendered nugatory.
[30] It is impossible for me to resolve such a complex issue in this application. However, I am inclined to the view that freezing orders are a self-contained species of order. And, without explicit guidance in the Rules, I would be reluctant to extend freezing order principles to the situation here which clearly is not an order sought or being made under Part 32 of the Rules. At this stage, I proceed on that basis.
[31] Second, Mr Geiringer argues that the stay application is very weak. This is primarily because four months had elapsed since the date of my December judgment before Mr Agam’s 29 April application. It had also been three months since the injunction had lapsed due to non-payment of the security. In his view, that is fatal to the stay application. He submits it is just unconscionably, if not, egregiously, late.
[32] On the other hand, I accept Mr Glover’s position that he was anticipating a fast-track hearing in the Court of Appeal even if that might not have been for three, four or five months, and he was content to await the outcome of that fast-track resolution. I cannot say that his approach is unreasonable, despite Mr Geiringer’s submission to the contrary.
[33] Third, Mr Geiringer argues that the effect of selling the 16 artworks and the defendants then utilising the proceeds of sale would not render the appeal nugatory. After all, Outer Aspect’s claim is for more than $4 million of unpaid accounts. At least
$1.7 million of those, as I observed in the first interim injunction decision, would seem to be for printing and crafting the artworks. In my December judgment, I suggested that it seems likely that some of the disputed invoices, to that amount, would be upheld. If the proceeds of sale were used as foreshadowed, less than that $1.7 million would be dissipated. On that basis, there would be no loss to Mr Agam.
[34] While I accept that point, the reality is, in the context of this hearing, if the proceeds of sale of the 16 artworks were not placed in a trust account, they would be lost to Mr Agam and out of his reach. That is an important factor at this stage.
[35] Mr Glover is most concerned any proceeds of sale would effectively vanish, and that is why, given the Court of Appeal hearing is only five weeks away, they should be set aside in a trust account, as a subset of the total amount of unpaid accounts in dispute. I am inclined to agree with that approach, at least until the stay can be argued.
[36] Mr Geiringer is also of the view that Mr Agam’s case is not strong. In fact, the more times goes on and the more the claim is particularised, he says the weaker it gets. For instance, in the most recent statement of claim, there are said to be 1,186 artworks created by the defendants without authority. However, Mr Geiringer says there are documents that make it clear beyond argument that the paintings were produced with Mr Agam’s authority. Therefore, Outer Aspect must be owed money for them.
[37] Also, while Outer Aspect has provided invoices in the past, and while Mr Agam disputes those invoices, he will not say what he understood the payment arrangements to be.
[38] Mr Geiringer also emphasises that the only harm that will effectively be caused by the sale, is if they are sold at undervalue. He is adamant it is the auctioneer who sets the reserve. Mr Moon does not know the reserve price and the auctioneer has received its own valuation. Moreover, Mr Agam has been invited to participate in the process to ensure authenticated valuation of the paintings but has steadfastly refused to do so. So, says Mr Geiringer, Mr Agam doesn’t come before the Court with clean hands.
[39] Finally, Mr Geiringer also emphasises that this time, as opposed to other hearings, there is very good reason to suspect that Fifo will actually begin enforcement of its loan, such that there will be no second defendant left to take part in the proceedings.
Conclusion
[40] I have weighed all these matters carefully. As I say, on an “interim interim” basis, the order made seems to me that the best way for preservation of the situation until the stay can be finally resolved. It best embodies the relevant principles and is fair to all parties in the interim.
[41] By the time the stay application is argued, Outer Aspect’s real position will be known. Relevant affidavits are to be filed five working days before that hearing.
[42] Certainly, the stay application requires priority. No doubt the Executive Judge will receive a request for urgency as soon as possible.
Becroft J
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