Cypress Investment Holding Limited v Liu
[2025] NZHC 1766
•1 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002517 [2025] NZHC 1766
BETWEENCYPRESS INVESTMENT HOLDING LIMITED
Plaintiff
AND YONGQIN LIU
First Defendant
JIAN TAN
Second DefendantGOLDEN 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
Judgment: 1 July 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 1 July 2025 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Glaister, Auckland
Heaney & Partners, Auckland Righteous Law, Auckland
CYPRESS INVESTMENT HOLDING LTD v LIU & TAN [2025] NZHC 1766 [1 July 2025]
Introduction
[1] The Court gave 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 now appealed that judgment and made an application for stay of execution of the judgment. The application for stay proceeds under r 20.10. The second and third defendants seek to prevent the plaintiff enforcing the judgment pending the appeal.
Application for stay of enforcement
[3] The application for stay largely repeats the complaints raised in the substantive proceedings which were considered and rejected by the Court when it granted summary judgment. It does not address the factors to be considered on an application for stay of enforcement.
[4] Additional grounds relating to the conduct of the hearing and the second and third defendants’ ability to participate in the hearing will be matters for the Appeal Court. It is noted that the second and third defendants filed extensive evidence and detailed submissions and were given every opportunity to fully participate in the hearing. As the plaintiff points out, over 1,000 pages of material were filed by the defendants in advance of the hearing.
[5]There was no request for an interpreter made during the hearing.
Approach to application for stay of enforcement
[6] The plaintiff refers the Court to Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust as guidance on the approach to be taken to applications for stay of enforcement.1
1 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZHC 1947.
[7]The following factors are relevant:
[8] The bringing of an appeal against the High Court decision does not operate to stay the effect of the High Court decision. In the absence of an order by the Court, the successful party, here the first respondent, is entitled to enforce the judgment given. A successful party is generally “entitled to enjoy the fruits of judgment in its favour”. The onus is on the applicant to persuade the Court that without a stay, the applicant's appeal rights are nugatory and requiring of interim protection.
[9] Jurisdiction to apply for a stay of proceedings and interim orders comes under r 20.10 of the High Court Rules and r 12(3) of the Court of Appeal (Civil) Rules 2005. The Court will weigh a range of factors in determining on the whole case the balance between the successful litigants' right to the fruits of the judgment and the need to preserve the position of the appellant should the appeal succeed.
[10] The Court of Appeal has endorsed the following non-comprehensive list of factors as relevant when balancing these competing interests:
(a) If no stay is granted will the applicants' right of appeal be rendered nugatory?
(b) The bona fides of the applicants as to the prosecution of the appeal.
(c) Will the successful party be injuriously affected by the stay?
(d) The effect on third parties.
(e) The novelty and importance of the question involved.
(f) The public interest in the proceedings.
(g) The overall balance of convenience.
[11] This list is not an exhaustive one. Courts have also given consideration to the following factors:
(a) the merits of the appeal; and
(b) the fact an appeal may be rendered nugatory without a stay is not determinative.
[8] In addition to those factors, the plaintiff relies on Settlers Honey Ltd v First Honey NZ Ltd.2 That case made it clear that a party making an application for stay faces a high hurdle:
Whilst the Court may order a stay, it will only do so in a rare case where the circumstances demand it in the interests of justice.
2 Settlers Honey Ltd v First Honey NZ Ltd [2022] NZHC 518 at [12] and [13].
Current Position
[9] Following release of the judgment the plaintiff has attempted to enforce the judgment by sealing the judgment, applying for a possession order and engaging agents to try and take possession. Those attempts have been unsuccessful, with parties unknown changing locks to prevent access being given to the plaintiff.
[10] On attending the premises with the New Zealand Police to assist with obtaining possession, the plaintiff’s counsel received notice that an appeal had been filed together with an application for stay. This prevented the plaintiff from completing the enforcement of the judgment.
[11] It appears that the second and third defendants continue to attempt to lease part or all of the property, and/or tenant a vacant unit out to third parties. This is despite the clear findings in the judgment.
Discussion
[12] Turning to the relevant factors in Brook Valley Community Group, I find as follows.
If no stay is granted, will the applicant’s right of appeal be rendered nugatory?
[13] Not granting the stay will not make the applicant’s right of appeal nugatory. As the plaintiff notes, this is and always was a development property which was intended to be developed and then sold for profit. It is not the second and third defendants’ home. The appropriate measure of loss is damages should the appeal ultimately be successful.
The bona fides of the applicants as to prosecution of the appeal
[14] The plaintiff has concern at the financial ability of the second and third defendants to prosecute this appeal to a successful completion.
[15] I do note, however, that the appeal seeks to raise numerous new grounds and seeks to file new evidence. The notice of appeal itself is simply a repeat of many of the allegations considered at first instance and rejected.
[16] The history of the background to the proceeding shows that the second and third defendants have taken numerous steps to thwart the plaintiff’s exercise of its rights as registered proprietor, including lodging of various caveats by them and related parties and an application for injunction. Given that background, I question the bona fides of the second and third defendants as to the prosecution of the appeal.
Will the successful party be injuriously affected by the stay?
[17] It is relevant that Cypress has and will continue to suffer significant financial loss with the risk that it will be unable to recover its damages should it be successful in resisting the appeal. Mesne profits continue to accrue but remain unpaid.
[18] The plaintiff has been deprived of its entitlement to possession since settlement on 26 August 2024. The second and third defendants have been continuing to collect rental from the current residential tenants. Those amounts have not been passed on to the plaintiff. They have been retained by them. The judgment finds that they have no entitlement to those sums.
[19] The plaintiff’s key concern, given its anticipated financial losses in recovering the outstanding mesne profits and ongoing rental being diverted by the second and third defendants to themselves in breach of the plaintiff’s rights, is obtaining exclusive possession of the property.
[20] There is a good argument that the plaintiff will be injuriously affected by the granting of a stay.
The effect on third parties
[21] The effect on third parties largely relates to the impact of the uncertainty created by the dispute between the competing owners of the property. The plaintiff has given evidence that one tenant at least has left due to the ongoing issues and that
other tenants remain disturbed by the ongoing disputes between the parties and attempts by both of them to regain or retain exclusive possession of the property.
[22] There is, therefore, an adverse effect on third parties whilst this dispute continues.
The novelty and importance of the question involved
[23]The issues raised in the appeal are not novel.
[24] They are not more important than any ordinary situation where a property is sold by mortgagee sale due to the mortgagor’s default.
The public interest in the proceedings
[25]There is no public interest in the proceedings.
Overall balance of convenience
[26] Should the appeal succeed and the Court of Appeal find that the mortgagee sale was conducted improperly, then damages are an adequate remedy for the second and third defendants.
[27] The plaintiff says that it has followed due process, has a judgment in its favour and simply seeks to enforce the Court’s judgment. It says that if the stay is granted it will suffer greater losses than it already has, which it is unlikely to recover.
[28]The balance of convenience clearly favours declining the stay.
[29] I note that the second and third defendants sought to file submissions in response to the plaintiff’s submissions and sought to file further evidence in support of its application. That application was declined.
Decision
[30] The application for stay of enforcement made by the second and third defendants is declined.
[31]The plaintiff is entitled to immediately enforce its judgment.
[32] The plaintiff is entitled to costs on a 2B scale on this application. The plaintiff is to file a memorandum as to costs within five working days of this decision of no more than three pages, including attachments. The responding parties, the second and third defendants, may file a responding memorandum as to costs of no more than three pages (including attachments) within a further five working days.
[33]Costs will be determined on the papers.
Associate Judge Cogswell
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