Ngoi v Wen

[2017] NZCA 598

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/2016
[2017] NZCA 598

BETWEEN

KOK ANN NGOI
First Appellant

SUNLINE ESTATE LIMITED
Second Appellant

AND

GUIRONG WEN
Respondent

Court:

Kós P, Woolford and Collins JJ

Counsel:

S A Barker and O C Gascoigne for Appellants
D R Bigio QC and Y Y Wang for Respondent

Judgment:

(On the papers)

14 December 2017 at 11.00am

JUDGMENT OF THE COURT

AThe application for a stay of execution of the order is granted on the conditions stated at [8].

BThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. This is an application for stay of judgment pursuant to r 30(2) of the Supreme Court Rules 2004 pending application for leave to appeal this Court’s decision of 17 November 2017. [1]

   [1]Ngoi v Wen [2017] NZCA 519.

2. The parties are in a property dispute.  This Court allowed Dr Ngoi’s appeal from a decision of the High Court.[2]  We held Ms Wen had entered a binding contract for the sale of a rural property to Dr Ngoi.  In so doing, the Court ordered that the contract for the sale be performed within 30 days of the date of that judgment (the order).[3] 

Application and response

[2]Ngoi v Wen [2016] NZHC 1621.

[3]At [54].

1. Ms Wen now applies for a stay of execution of the order.  She says she intends to apply to the Supreme Court for leave to appeal to that Court.  The filing and serving of that application fall due on Friday 15 December 2017.  Because the order made by this Court falls to be performed on Sunday 17 December 2017, for all practical purposes the contract must be performed by Friday 15 December 2017 — the same day the application for leave to appeal to the Supreme Court is due.  Ms Wen is concerned her application and any subsequent appeal would be rendered nugatory if she is required to perform the contract.

2. Dr Ngoi opposes the application.  He says Ms Wen is unlikely to be granted leave.  He also says that he, along with third parties, would suffer prejudice due to delays caused to the conduct of necessary infrastructure works in relation to both the property and other adjacent land.  But, Dr Ngoi says that he would, if necessary, accept appropriate conditions providing security to Ms Wen if and to the extent her proposed appeal succeeds.

Discussion

1. We agree with Ms Wen that transferring the property before an application for leave can be dealt with, or the failure to provide her an equivalent interest, may render her intended appeal nugatory.[4]  We make no comment on the merits or otherwise of that intended appeal.

   [4]Sisson v Commissioner of Inland Revenue [2017] NZCA 417 at [23]–[24].

2. We also accept Dr Ngoi’s submission that conditions providing for undertakings by the transferee would deal adequately with Ms Wen’s concerns while permitting the transfer to proceed.  In particular we accept that the development of the special housing area adjacent to the property (which area includes that property) should not be permitted to be frustrated by further legal wrangling.  Such development is in the mutual interest of all parties.

3. We will therefore grant the application Ms Wen seeks, but on conditions.  One of those is that the stay will discharge automatically if certain prescribed undertakings are provided to the Registrar of this Court.

Result

1. The application for a stay of execution of the order is granted on the following conditions:

   (a)the application for leave to appeal to the Supreme Court must be filed by Ms Wen not later than Friday 15 December 2017;

   (b)Ms Wen must comply with any directions and rules of the Supreme Court concerning the granting of leave to appeal;

   (c)nothing in this judgment alters any entitlement that Dr Ngoi and Sunline Estate Ltd have to penalty interest or other remedy consequent on the failure of Ms Wen to settle sale; and

   (d)should Dr Ngoi and Sunline Estate Ltd provide a written undertaking to the Registrar of this Court that:

   (i)neither will sell, transfer or otherwise dispose of the property until determination of any appeal to the Supreme Court;

   (ii)neither will encumber the property or permit it to be encumbered by way of security for a sum greater than the purchase price of the property or in any manner that will prevent, delay or hinder re-transfer;

   (iii)they will retransfer the land (subject to repayment of the purchase price) to Ms Wen in accordance with any such order made by the Supreme Court; and

   (iv)they consent to Ms Wen lodging a caveat over the title of the property to protect her interest under (iii):

   then the stay thereupon is discharged without more;

   (e)for the avoidance of doubt, undertakings to the effect stated in (d) executed by the solicitor for Dr Ngoi and Sunline Estate Ltd on their behalf will suffice; and

   (f)leave is reserved to apply on 36 hours’ notice to vary or annul these orders.

2. There is no order for costs.

Solicitors:
Buddle Findlay, Wellington for Appellants
Pidgeon Law, Auckland for Respondent