Cypress Investment Holding Limited v Liu

[2025] NZHC 2322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002517 [2025] NZHC 2322

BETWEENCYPRESS INVESTMENT HOLDING LIMITED

Plaintiff

AND  YONGQIN LIU

First Defendant

JIAN TAN
Second Defendant

GOLDEN TOUCH INVESTMENT AND TRADE COMPANY LIMITED
Third Defendant

Hearing:                   On the papers

Counsel:                   M Singh / P S Kim for the Plaintiff

Second Defendant in Person and on behalf of the Third Defendant

Judgment:                15 August 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 15 August 2025 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Glaister Keegan, Auckland Righteous Law, Auckland

CYPRESS INVESTMENT HOLDING v LIU & TAN [2025] NZHC 2322 [15 August 2025]

Introduction

[1]                The Court gave summary judgment on this matter on 5 June 2025, finding that the second and third defendants were unlawful occupiers of the property and granting possession of the property to the plaintiff. In addition to granting possession, mesne profits were awarded in favour of the plaintiff against the second and third defendants.

[2]The second and third defendants have appealed that judgment.

[3]                They also applied under r 20.10 of the High Court Rules to stay execution of the judgment pending determination of the appeal.

[4]                By judgment dated 1 July 2025, the Court dismissed the interlocutory application for stay, finding:

If no stay is granted, will the applicant’s right of appeal be rendered nugatory?	No
Do the bona fides of the applicants as to prosecution of the appeal favour the stay being granted?	No
Will the plaintiff be injuriously affected by a stay?	Yes
Is there an adverse effect on third parties?	Yes
Are there any novel issues or questions of importance involved in the appeal?	No
Is there public interest in the proceedings?	No
Does the overall balance of convenience favour granting the stay?	No

Leave to appeal

[5]                The second and third defendants now seek the Court’s leave to appeal the Court’s refusal of their interlocutory application for stay.

[6]                Whilst purporting to address the factors considered in the stay application above, the grounds of the application for leave once again largely repeat the defences raised at the first instance summary judgment hearing.

[7]                The factors set out above are not addressed in any detail other than inferentially by complaining about the first instance decision.

[8]                The submissions instead make further complaints about the mortgagee sale process, attempt to introduce new evidence about the conduct of the mortgagee sale, and make belated offers to divert rental income being derived from the property into an independent trust account (the plaintiff noting that its earlier invitations to the second and third defendants to do that were refused and that the second and third defendants have no legal right to that income in the first place).

[9]                The second and third defendants raise no new matters not already considered in my earlier decision declining the stay application.

Approach to application for leave to appeal

[10]            Pursuant to s 56(3) of the Senior Courts Act 2016, the second and third defendants are required to obtain the leave of this Court to pursue an appeal against my decision on their interlocutory application for stay of enforcement.

[11]            The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders are made.1

1      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

[12]            The approach to an application for leave, and the principles governing its grant or refusal, are well-established:2

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[13]            In the event leave is refused, the applicant is not barred from later raising their intended appeal point in an appeal against the substantive High Court decision in the proceeding.3

Discussion

Arguable error

[14]            The identification of an arguable error of law or fact in the declinature of the stay application is a threshold question.4

[15]            Other than repeating their earlier grounds of opposition to the summary judgment application, the second and third defendants do not identify any error in the decision declining their application for stay of enforcement. All relevant factors were considered but were determined against the second and third defendants.

2      Tomar v Tomar [2021] NZCA 419 at [6].

3      Senior Courts Act 2016, s 56(6).

4      Memelink v Collins & May Law [2024] NZHC 2200.

[16]            The second and third defendants have not established an error in the stay judgment.

General public importance

[17]There is no issue of general or public importance.

Importance of the issue to the applicants

[18]This was addressed in the stay application.

[19]            I do not consider that this factor favours granting leave to appeal the declinature of the second and third defendants’ stay application.

[20]            As previously noted, this development was simply a commercial property development that became insolvent. It is not, and never was, the second defendant’s home; rather, it was a commercial undertaking at all relevant times. That the second defendant has chosen to now live in the property does not change that.

The interests of justice

[21]            The interests of justice do not favour the plaintiff being held out of its rightful entitlement to exclusive possession of the property any further.

[22]            Having paid over $3 million for the property, the plaintiff has been kept out from enjoying the benefits of ownership for over a year whilst the second and third defendants have pursued numerous Court processes to frustrate the plaintiff’s rights as owner. They have wrongly retained income earnt from the property, despite having no legal right to do so.

[23]            Should the second and third defendants prevail at the appeal, any losses they suffer from being deprived of the property for the period between the giving of possession to the plaintiff and the appeal can be addressed by way of damages.

[24]            Allayed to that point is the fact that the second and third respondents’ appeal will not be rendered nugatory should their appeal succeed. They will be reinstated

owners of the property and the plaintiff will be required to pay damages for any benefits obtained by it during the period of its possession.

[25]            The interests of justice strongly favour leave not being granted to appeal my declinature of their application for stay.

Result

[26]Leave to appeal is refused.

[27]            I order that the second  and third defendants pay costs to the plaintiff on a   2B basis for the preparation of their memorandum of counsel filed in opposition to the second and third defendants’ application for leave to appeal.

Associate Judge Cogswell