Taimoori v Anmol Residential Limited

[2021] NZHC 1344

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000036

[2021] NZHC 1344

BETWEEN

MIRZA AREEB BAIG TAIMOORI

Plaintiff

AND

ANMOL RESIDENTIAL LIMITED

First Defendant (stayed)

ANMOL SETH

Second Defendant

Hearing:	On the papers
Judgment:	9 June 2021

JUDGMENT OF DOWNS J

(Stay pending appeal)

This judgment was delivered by me on Wednesday, 9 June 2021 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Lovegroves, Auckland.

PCW Law Ltd, Auckland. BP Rooney, Auckland.

TAIMOORI v ANMOL RESIDENTIAL LTD [2021] NZHC 1344 [9 June 2021]

[1]    On 18 March 2021, I found Anmol Seth breached a fiduciary duty in relation to Mirza Taimoori, and was thus liable to repay Mr Taimoori $239,320 plus interest and costs.1 In very short, Mr Seth took $270,000 from Mr Taimoori on the basis he would develop a property, and the two men share profits of that development. Mr Seth did not develop the property in any way, nor repay more than $30,680. Mr Seth filed an appeal in the Court of Appeal on the last available day. Mr Seth seeks a stay of execution of my judgment until the appeal is determined.2 Mr Taimoori opposes the application.

[2]    Principle is not in doubt. A successful litigant is ordinarily entitled to the fruits of judgment, especially a money judgment. But, a stay of execution of the judgment may be granted in the interests of justice. Considerations typically include whether the appeal may be rendered nugatory absent a stay; the bona fides of the appellant in bringing the appeal; prejudice to the successful party in the event of a stay; the novelty and importance of questions involved; the public interest in the proceeding if any; and the overall balance of convenience.

[3]    Application of these principles is not without difficulty because some considerations pull one way, some another:

(a)Mr Taimoori wants his money. He gave the money to Mr Seth in 2015. It is now 2021.

(b)Though not framed this way, the grounds of appeal reduce to the proposition the finding of a fiduciary duty was wrong on the facts. The appeal is ambitious because Mr Seth admitted many of the underlying facts in his pleadings, at trial, or both.

(c)Mr Taimoori believes, with some justification, the appeal is merely an attempt to delay payment, rather than a genuine appellate challenge.

(d)No novel or important questions arise.

1      Taimoori v Anmol Residential Ltd [2021] NZHC 533.

2      Court of Appeal (Civil) Rules 2005, r 12.

(e)But, if a stay is not granted, there is a real prospect Mr Seth will be bankrupted, with all that entails. There is an associated risk the Official Assignee would not consent to the appeal.

(f)Mr Seth says he has encountered difficulties in meeting the judgment because of caveats on the property, including one by the liquidators of companies associated to Mr Seth.

(g)While the appeal is ambitious, it is not self-evidently hopeless.

[4]    I consider the mix warrants a stay of execution—just—provided Mr Seth prosecutes the appeal swiftly; with due diligence; and in accordance with any directions provided by the Court of Appeal. I make the stay conditional on these; and on the condition Mr Seth consents to his appeal being placed on the fast track in the Court of Appeal. I apprehend Mr Taimoori has asked the Court of Appeal to place it on the fast track, and that Court’s decision awaits mine in relation to the stay.

[5]    If Mr Seth does not comply with any of these conditions, Mr Taimoori may raise such non-compliance with me by way of memorandum of counsel.

Result and orders

[6]    I grant Mr Seth a stay of execution of my judgment. The stay is conditional on Mr Seth:

(a)Prosecuting the appeal swiftly; with due diligence; and in accordance with any directions provided by the Court of Appeal, including timetable directions.

(b)Consenting to his appeal being placed on  the  fast  track  in  the  Court of Appeal.

[7]    To avoid doubt, the stay is not conditional on the Court of Appeal placing the appeal on the fast track. Obviously, that decision is for it (being a Court above this one).

Postscript: no need for a hearing

[8]    Mr Seth sought a short hearing of this application. As will be apparent, I did not consider a hearing necessary. Applications of this nature are typically dealt with on the papers. A hearing would cause yet more delay.

……………………………..

Downs J