HND Holding Limited v Lau

[2023] NZHC 3659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2761

[2023] NZHC 3659

UNDER

Section 142 of the Land Transfer Act 2017

IN THE MATTER OF

an application for an order removing caveat no. 12780856.1 (North Auckland Registry)

BETWEEN

HND HOLDING LIMITED

Applicant

AND

EE KUOH LAU

Respondent

CIV-2023-404-2783

IN THE MATTER OF

an application for an order removing caveat 12780903.1 (North Auckland Registry)

BETWEEN

HND HOLDING LIMITED

Plaintiff

AND

EE KUOH LAU

Defendant

Hearing:	12 December 2023
Counsel:	R O Parmenter for the Applicant Respondent in person
Judgment:	13 December 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 13 December 2023 at 12 Midday.

Pursuant to Rule 11.5 of the High Court Rules.

Solicitors/Counsel:
R Parmenter, Auckland

Ganda & Associates, Auckland

…………………..

Registrar/Deputy Registrar

HND HOLDING LTD v LAU [2023] NZHC 3659 [13 December 2023]

Introduction

[1]                  On 1 December 2023  I gave judgment  for HND Holding Limited against  Mr Lau in these two proceedings, ordering the removal of two caveats registered against two records of title.1 I did so on the basis that HND holds an indefeasible interest as registered mortgagee of both properties, and the unregistered interest claimed by Mr Lau cannot prevent HND from exercising its power of sale under the mortgages to sell the properties, following default by the mortgagors.

[2]                  Mr Lau has appealed the judgment, and now applies for a stay of enforcement of the judgment pending determination of the appeal. The application is opposed by HND.

[3]The proceedings were called in the Caveats List on 12 December 2023 at 9 am.

[4]Mr Lau has recently filed two identical documents in each of the proceedings:

(a)“Originating Application Seeking Declarations …”; and

(b)“Affidavit in Support Originating Application …”

[5]                  When the matter was called on 12 December 2023, Mr Lau requested that I treat these documents as further submissions and evidence in support of his application for a stay of the judgment. With Mr Parmenter’s consent, I accepted the documents for filing on that basis. The parties have agreed that I now determine the application for a stay on the papers.

Legal principles

[6]                  The bringing of an appeal does not operate to stay the effect of any judgment being appealed. The general rule is that a successful party is entitled to enjoy the fruits of a judgment.

1      HND Holding Limited v Lau [2023] NZHC 3482.

[7]                  In deciding whether to grant a stay, the Court must balance the successful litigant’s rights to the fruits of the judgment and any need to preserve the unsuccessful litigant’s position should the appeal succeed.2 The relevant factors to consider are:

(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 questions involved;

(f)the public interest in the proceeding;

(g)the overall balance of convenience; and

(h)the apparent strength of the appeal.3

[8]                  In an exercise of its power of sale as mortgagee, HND has entered into contracts to sell the mortgaged properties to a third-party, Joe Holdings Limited. HND is currently prevented from completing settlement of the sales by the caveats. If the stay is granted, HND will be significantly injuriously affected, because it will be unable to complete its contractual obligations to the purchaser.

[9]                  In my view, Mr Lau’s appeal has absolutely no merit, and no prospect of succeeding. It is nothing more than a stalling tactic. Mr Lau is not acting bona fide  in bringing the appeal.

[10]              Overall, the balance of convenience favours HND, and this is not an appropriate case for a stay of enforcement.

2      Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.

3      Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

[11]              Regarding costs, my preliminary view is that HND is entitled to an award of 2B costs in opposing the application. The matter was dealt with in the Caveats List, so the claim for costs should be limited to the filing of the notice of opposition and, and one list appearance.

Orders

[12]Mr Lau’s application for a stay of enforcement of the judgment is dismissed.

[13]If the parties are unable to agree costs then:

(a)HND may file a memorandum as to costs within five working days;

(b)Mr Lau may reply within a further five working days.

Associate Judge Brittain