Golden Touch Investment v Trade Company Limited v Zhu

[2025] NZCA 454

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)

1. 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.

1. 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.

1. 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].

1. 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].

1. The applications are opposed by the second respondent. The fourth respondent

abides the decision of the Court.

Analysis

1. 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.

1. 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].

1. 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].

1. 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

1. For these reasons the application for a stay in CA369/2025 was declined.

2. 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].