Golden Touch Investment v Trade Company Limited v Zhu
[2025] NZCA 454
•28 August 2025 at 3.00 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA369/2025 CA517/2025
[2025] NZCA 454
BETWEEN GOLDEN TOUCH INVESTMENT AND TRADE COMPANY LIMITED First Appellant JIAN TAN Second Appellant AND JIANZHONG ZHU First Respondent CYPRESS INVESTMENT HOLDING LIMITED Second Respondent LINSHENG HUO Third Respondent GOLDEN LINKS REAL ESTATE LIMITED Fourth Respondent
| Court: | Cooke, Brewer and Harvey JJ |
| Counsel: | Second Appellant in person |
| M Singh for Second Respondent | |
| K D Perry for Fourth Respondent | |
| A | The application for a stay in CA369/2025 is declined. |
| B | The application for leave to appeal the High Court’s refusal to order a stay |
| in CA517/2025 is declined. |
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
By application dated 27 August 2025, Ms Tan, the second appellant, applied
for a stay pending determination of her appeal against a High Court decision granting
summary judgment and possession orders in favour of Ms Zhu and Cypress
Investment Holding Ltd.[1] She also applied for leave to appeal the High Court’s refusal
to order a stay.[2] On 28 August we declined the applications and we now provide our
reasons.[3]
Background
[1] Golden Touch Investment and Trade Co Ltd v Zhu [2025] NZHC 1150 [possession decision].
[2] Cypress Investment Holding Ltd v Liu [2025] NZHC 1766 [stay decision]. By judgment dated
[3] Golden Touch Investment and Trade Co Ltd v Zhu [2025] NZCA 438.
The first appellant was the owner and developer of a five-unit property
development in Auckland. The development encountered financial difficulties and the
first respondent as lender exercised her powers to proceed with a mortgagee sale. The
second respondent purchased the property at the mortgagee sale.
A number of proceedings have been commenced. When entering summary
judgment granting the second respondent possession, Associate Judge Cogswell
concluded that all the proceedings ultimately boiled down to a single issue over
whether the first respondent discharged her duties of care when selling the property.[4]
[4] Possession decision, above n 1, at [15].
Ms Tan was given leave to represent the first appellant in the court below.[5] She
seeks a stay of the High Court’s orders pending determination of her appeal. Amongst
the reasons why she says a stay should be granted is that rights of possession have been granted. When declining leave to appeal, however, Associate Judge Cogswell
found that the case simply involved a commercial property development that had
become insolvent, that the property was never Ms Tan’s home but a commercial
undertaking at all relevant times, and the fact that she had chosen to live in the property
did not change that.[6]
[5] See at [41].
[6] Leave decision, above n 2, at [20].
The applications are opposed by the second respondent. The fourth respondent
abides the decision of the Court.
Analysis
The following factors are relevant to an application for a stay:[7]
[7] Yan v Mainzeal Property and Construction Ltd (in rec, in liq) [2014] NZCA 86, (2014) 22 PRNZ
(a) whether the appeal may be rendered nugatory by the lack of a stay; (b) the bona fides of the applicant as to the prosecution of the appeal; (c) whether the successful party will be injuriously affected by the stay; (d) the effect on third parties; (e) the novelty and importance of the questions involved; (f) the public interest in the proceeding; (g) the overall balance of convenience; and (h) the apparent strength of the appeal.
[7] Ms Tan argues it is in the interests of justice to grant a stay. If no stay is granted, she says that her and the first appellant’s appeal rights would be rendered nugatory and the long-term residential tenants would be detrimentally affected. Moreover, any
prejudicial effect on the second respondent and third parties can be mitigated.
We do not accept these submissions. We agree with the Judge that this is
essentially a commercial dispute relating to a residential property development.[8] The
appellants remain able to advance any arguments about the sale on appeal. Damages
would be an adequate remedy should the appeal succeed given this context.[9]
[8] Contrast Steinbauer v Steinbauer [2022] NZHC 1644.
[9] Wilfred v Gan [2013] NZCA 285 at [29].
On the other hand, the second respondent appears to be a bona fide purchaser
who will continue to suffer detriment if a stay is granted. The appellants continue to
collect rent from the current tenants of the properties, which the High Court has found
they are not entitled to retain.[10] Moreover, the suggested tenancies appear to have
post-dated the summary judgment granting possession and can be seen as an attempt
to thwart the judgment. The second respondent is being deprived of its right to
exclusive possession of the property, for which over $3 million was paid. There is
also an adverse effect on third parties as a result of the uncertainty created by the
proceedings.
[10] Possession decision, above n 1, at [176].
We also consider that the intended appeal is not strong. We are not persuaded
that the alleged breach of duty associated with the mortgagee sale has sufficient
prospects of success to deprive the purchaser of their right of possession. Neither do
any other factors support the grant of a stay.
Result
For these reasons the application for a stay in CA369/2025 was declined.
Given these conclusions the application for leave to appeal in CA517/2025 was
also declined.
Solicitors:
Glaister Keegan, Auckland for Second Respondent
Heaney & Partners, Auckland for Fourth Respondent
| Judgment: | 28 August 2025 at 3.00 pm |
| (On the papers) | |
| Reasons: | 9 September 2025 |
JUDGMENT OF THE COURT
GOLDEN TOUCH INVESTMENT AND TRADE COMPANY LIMITED v JIANZHONG ZHU [2025]
NZCA 454 [28 August 2025]
15 August 2025, the High Court declined Ms Tan’s application for leave to appeal the refusal to
grant a stay: Cypress Investment Holding Ltd v Liu [2025] NZHC 2322 [leave decision].
296 at [25]; Wikeley v Kea Investments Ltd [2024] NZCA 686, (2024) 26 PRNZ 667 at [6]; and
Tomar v Khatri [2025] NZCA 218 at [11].
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