Xing v Li

[2023] NZCA 482

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA312/2023
 [2023] NZCA 482

BETWEEN

ZHONG XING Appellant

AND

JICAI LI AND FANG YU First Respondents YUN ZHENG Second Respondent WEN CHEN Third Respondent ZHONG WEI ZHOU Fourth Respondent BO LIN Fifth Respondent JIYUAN WU Sixth Respondent FANG YU Seventh Respondent WMW TRUSTEE LIMITED Eighth Respondent YANGXUAN WANG AND MENGQUI WANG Ninth Respondents XIN ZHAO Tenth Respondent ZELIX TRADING LIMITED Eleventh Respondent QIN XIN ZENG AND AIXUAN GUO Twelfth Respondents JCM NZ LIMITED Thirteenth Respondent YIKAI CHEN Fourteenth Respondent CHEN FENGLIANG AND MING MING DENG Fifteenth Respondents ZHIREN ZHANG Sixteenth Respondent LOVE HOMES LIMITED Seventeenth Respondent ER XIA CAO AND ER SHENG CAO (AS TRUSTEES OF ZION TRUST) AND ER SHENG CAO AND ER XIA CAO (AS TRUSTEES OF CAO TRUST) TOGETHER WITH JUN WU Eighteenth Respondents JASVINDER SINGH AND TINA SINGH Nineteenth Respondents GREEN LAND INVESTMENT LIMITED Twentieth Respondent REGISTRAR-GENERAL OF LAND Twenty-First Respondent LEQUN ZHAO Twenty-Second Respondent XING ENTERPRISES LIMITED Twenty-Third Respondent TRINITY HOPE INVESTMENT LIMITED Twenty-Fourth Respondent FLATBUSH LAND LIMITED Twenty-Fifth Respondent HIU CHING CHAN Twenty-Sixth Respondent

Counsel:	R O Parmenter for First to Seventeenth and Nineteenth Respondents M E Casey KC and A J Casey for Twenty-Sixth Respondent
Judgment: (On the papers)	3 October 2023 at 2.30 pm

JUDGMENT OF BROWN J

AThe application for a stay of enforcement is granted in the terms set out at [7].

BCosts on this application are reserved.

____________________________________________________________________

REASONS

1. Hiu Ching Chan, the twenty-sixth respondent in CA312/2023, has applied for leave to bring cross-appeals out of time in both CA450/2022 and CA312/2023.  Those applications are set down for hearing on the papers in the week commencing 20 November 2023.

2. Ms Chan has filed an application seeking a stay of enforcement[1] of that part of the judgment of Jagose J in Li v Green Land Investment Ltd[2] that relates to the entitlements of the first to seventeenth and nineteenth respondents.  In that application it is contended that:

   (i)If the remedies judgment is enforced prior to the determination of Ms Chan’s applications for leave, her appeals may be rendered nugatory:

   (i)The relief sought in CA450/2022, for orders declaring that her sale and purchase agreements have equitable priority over the fourth and tenth respondents, and for orders directing the Registrar-General of Land to give effect to certain transfer instruments will be rendered nugatory;

   (ii)The relief sought in CA312/2023, and the alternative relief sought in 450/2022, for charging orders over any funds paid by 1^st to 17^th and 19^th respondents in settlement of the purchase of properties, will be rendered nugatory if those funds are dispersed from the High Court’s trust account prior to the determination of Ms Chan’s appeals.

   [1]Court of Appeal (Civil) Rules 2005, r 12(3)(a).

   [2]Li vGreen Land Investment Ltd [2023] NZHC 1399.

3. It is contended that if a stay is not granted there is a risk of a serious injustice to Ms Chan who could be left without either the properties she contracted to purchase or the money she paid for them.  It is contended that this risk of injustice to Ms Chan outweighs any injustice to the first to seventeenth and nineteenth respondents caused by the delay in enforcement of the remedies judgment.

4. Mr Parmenter filed a memorandum on behalf of the first to seventeenth and nineteenth respondents opposing Ms Chan’s application.  Mr Parmenter’s principal submission (and his preferred position) is that a stay should not be granted and that Ms Chan should be left with her claims against the funds to be held by the Registrar of the High Court at Auckland.  With reference to the request for a stay of completion of the settlement of all transactions involving the parties, Mr Parmenter observes that Ms Chan claims only two lots on the basis that she has a superior right, namely lots 95 and 118.  Mr Parmenter’s alternative submission is that any claims that Ms Chan has to superiority are limited to those two lots.

5. Mr Parmenter rejects the contention that the appeal would be rendered nugatory by the lack of a stay given that Ms Chan lives in Australia and that the purchases were, as he puts it, “in trade”.  He further submits that delay in settlements will result in payment of penalty interest under the agreements for sale and purchase. 

6. The application for a stay is to be listed for determination together with Ms Chan’s applications for leave to bring cross-appeals out of time in the week of 20 November 2023.  I am dealing with this matter on an urgent preliminary basis, pending the Court’s determination in the week of 20 November 2023, and by reference to the principles in Keung v GBR Investment Ltd.[3]

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

7. I do not consider that it is necessary or appropriate to make an order staying the completion of the settlement of any of the transactions.  However I direct that the proceeds of sale of lots 95 and 118 are to be retained by the Registrar of the High Court at Auckland pending the decision of this Court on the applications set down for hearing in the week of 20 November 2023 or any earlier direction of this Court.

8. The costs of this application are reserved for determination at the hearing in the week of 20 November 2023.

Solicitors:
Carson Fox Bradley Ltd, Auckland for First to Seventeenth and Nineteenth Respondents
Duthie Whyte, Auckland for Twenty Sixth Respondent