Wu v Stalix Property Limited

[2022] NZCA 467

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA393/2022
 [2022] NZCA 467

BETWEEN	YIHENG WU Appellant
AND	STALIX PROPERTY LIMITED First Respondent STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED Second Respondent

Court:	Miller and Goddard JJ
Counsel:	Appellant in person G K Riach for First and Second Respondents
Judgment: (On the papers)	4 October 2022 at 11.00 am

JUDGMENT OF THE COURT

A        The application for a stay is declined.

BThe appellant must pay the respondents costs for a standard application on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

1. On 5 August 2022 Associate Judge Lester granted summary judgment on a claim by the respondents against Mr Wu for possession of a property at 15 Blarney Place, Casebrook, Christchurch (the property).[1]  The respondents are the registered proprietors of the property.  Mr Wu is a former registered proprietor of the property, which he continues to occupy. 

   [1]Stalix Property Ltd v Wu [2022] NZHC 1928.

2. Mr Wu has filed an appeal to this Court against the order made by the High Court granting the respondents possession of the property.

3. Mr Wu seeks a stay of enforcement of the High Court judgment under r 12 of the Court of Appeal (Civil) Rules 2005.  The application is opposed.

4. The respondents purchased the property after an order for sale had been made by the High Court.[2]  The transfer to them was executed by the Registrar of the Court. The making of the order for sale followed a lengthy relationship property dispute between Mr Wu (and his mother Ms Fan) and Mr Wu’s former wife Ms Li, in which Ms Li was largely successful.

   [2]Li v Wu [2021] NZHC 2552 at [34].

5. The history of that litigation is set out in the High Court judgment.  It need not be repeated here.

6. Mr Wu’s application for a stay appears to be premised on a challenge to the lawfulness of the sale of the property to the respondents.  He says that if the order is executed then “what’s the point of appealing?”  He should be given a chance to appeal, in order to recover ownership of the property.

7. The respondents oppose the application for a stay on the following grounds:

   (a)Mr Wu’s appeal will not be rendered nugatory if a stay is not granted.

   (b)The appeals and the present application are part of a continued attempt by Mr Wu to frustrate earlier orders of the High Court as to the sale of the property, are frivolous and/or vexatious, and an abuse of process.

   (c)The respondents will be injuriously affected if a stay is granted because they will continue to be deprived of possession of the property that they purchased in good faith and at arm's length from the Registrar of the High Court.

   (d)The overall balance of convenience does not favour the grant of a stay.

   (e)Mr Wu has no realistic prospect of success on appeal.

8. The principles to be considered when determining whether or not to grant a stay were summarised by this Court in Wootton v Wootton:[3]

   [3]Wootton v Wootton [2020] NZCA 478 (footnotes omitted).

   [9]       In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.  Factors to be taken into account in this balancing exercise include:

   (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; and

   (g)       the overall balance of convenience.

   While that list does not include the apparent strength of the appeal, that is treated as an additional factor.

9. Mr Wu’s appeal will not be rendered entirely nugatory if a stay is not granted.  If he establishes on appeal that he is entitled to possession of the property, the respondents would be required to restore possession of the property to him.  However he would have been deprived of possession of the property in the intervening period, and that would cause some irreversible prejudice.

10. Granting a stay would cause obvious prejudice to the respondents, who have purchased the property in good faith pursuant to orders made by the High Court.  As registered proprietors, they are entitled to possession of that property.  They say that while they do not have possession they are unable to insure the property, putting their investment at risk, and are unable to undertake remedial work to address weathertightness issues.   

11. Mr Wu has not offered an undertaking as to damages if a stay is granted, or provided evidence that he would be able to meet any damages awarded against him if a stay were granted and his appeal were to fail. 

12. The decisive point when it comes to assessing the balance of convenience in this case is that there is nothing in the material filed by Mr Wu in support of his application for a stay that suggests that his appeal against the possession order has any realistic prospect of success.  The challenge to the possession order is a collateral attack on the earlier High Court judgment directing that the property be sold.  Against the backdrop of the history of this litigation, there is considerable force in the respondents’ argument that this application for a stay, and the appeal against the possession order more generally, amount to an abuse of process.

13. Thus the overall balance of convenience strongly favours the respondents. 

14. In those circumstances, the application for a stay is declined.

15. The appellant must pay the respondents costs for a standard application on a band A basis, with usual disbursements.

Solicitors:
Harmans Lawyers, Christchurch for First and Second Respondents