MARJANEH SEYEDEH GOLESTANEH AND FEI TANG and JUN YANG s
[2024] NZHC 3693
•5 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-980
[2024] NZHC 3693
UNDER the Land Transfer Act 2017 IN THE MATTER
of Caveat no. 12954918.1
BETWEEN
MARJANEH SEYEDEH GOLESTANEH
Applicant
AND
FEI TANG and JUN YANG
Respondents
Hearing: 5 December 2024
(Hearing by Telephone Conference)
Counsel:
A R Gilchrist for Applicant
P J Napier and R Y Wang for Respondents
Judgment:
5 December 2024
JUDGMENT OF ASSOCIATE JUDGE LESTER
(Application for stay)
[1] On 26 November 2024 (the November Judgment) I released a judgment sustaining Ms Golestaneh’s caveat on conditions.1 Those conditions required Ms Golestaneh to pay a deposit and to settle her purchase in accord with the terms of the agreement by 31 January 2025 and in respect of her claim in misrepresentation to utilise the compensation provisions in the contract.
[2] In the November judgment I concluded that Ms Golestaneh’s claim that settlement had been deferred by agreement to 10 days after the issue of a Certificate of Approval (COA) was untenable.
1 Golestaneh v Tang [2024] NZHC 3560.
GOLESTANEH v TANG [2024] NZHC 3693 [5 December 2024]
[3]Ms Golestaneh wishes to appeal essentially in respect of that issue.
[4] On 4 December 2024, Ms Golestaneh applied for a stay saying she was not in a position to raise finance to complete the purchase even with funds being held in trust pursuant to the compensation provision, as financiers are unwilling to use the property as security given the allegedly unconsented bedrooms.
[5] The application for a stay was opposed and a hearing by telephone conference was convened at mid-day on 5 December 2024.
[6] While I consider the appeal not to be strong in respect of the issue of whether settlement was deferred, the fact is that if I declined to order a stay, Mr Gilchrist counsel for Ms Golestaneh, would have to apply to the Court of Appeal for a stay and the position would have to be preserved while that application was considered. Given the time of year, it is likely that such an application to the Court of Appeal could not be determined in the near future.
[7] Accordingly, to avoid further delay, there is an order pursuant to r 12 of the Court of Appeal (Civil) Rules 2005 staying conditions 28(b), (c) and (d) made in the November Judgment until further order of this Court or until Ms Golestaneh’s appeal is determined.
[8] The stay is subject to the condition that Ms Golestaneh is to pay the deposit due under the agreement for sale and purchase no later than 12 December 2024. For the avoidance of doubt, that is a condition of the stay. If the deposit is not paid then the stay will be lifted.
[9] It is a further condition of the stay that Ms Golestaneh is to have by 14 February 2025 applied for a hearing of her appeal in the Court of Appeal. If an application for a fixture has not been made then the stay will lapse.
[10] Leave is reserved for either party to seek a telephone conference with me on 24 hours’ notice. Should any issues arise in respect of payment of the deposit (or otherwise) I confirm I will make a telephone conference time available.
[11] I advised the parties that the November Judgment fixed settlement for Friday 31 January 2025. Ms Golestaneh has sought a stay of the obligation to settle on that date. Nonetheless, the settlement date has been fixed. Ms Golestaneh will be responsible for any loss or damage flowing from her failure to settle on that date if her appeal is unsuccessful. If Ms Golestaneh ultimately settles, in the event that her appeal is unsuccessful, then for example, late settlement interest will be payable to her, assuming such is provided for in the contract. Such will provide a further incentive for Ms Golestaneh to pursue her appeal.
Costs
[12]Costs in respect of the stay application are reserved.
Associate Judge Lester
Solicitors:
K3 Legal Limited, Auckland Octagon Law, Auckland
Copy to counsel:
A Gilchrist, Barrister, Auckland