XING v LI AND OTHERS [2023] NZCA 482

XING v LI AND OTHERS [2023] NZCA 482 [3 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA312/2023[2023] NZCA 482BETWEEN ZHONG XINGAppellantAND JICAI LI AND FANG YUFirst RespondentsYUN ZHENGSecond RespondentWEN CHENThird RespondentZHONG WEI ZHOUFourth RespondentBO LINFifth RespondentJIYUAN WUSixth RespondentFANG YUSeventh RespondentWMW TRUSTEE LIMITEDEighth RespondentYANGXUAN WANG AND MENGQUIWANGNinth RespondentsXIN ZHAOTenth RespondentZELIX TRADING LIMITEDEleventh RespondentQIN XIN ZENG AND AIXUAN GUOTwelfth RespondentsJCM NZ LIMITEDThirteenth RespondentYIKAI CHENFourteenth RespondentCHEN FENGLIANG AND MING MINGDENGFifteenth RespondentsZHIREN ZHANGSixteenth RespondentLOVE HOMES LIMITEDSeventeenth RespondentER XIA CAO AND ER SHENG CAO (ASTRUSTEES OF ZION TRUST) AND ERSHENG CAO AND ER XIA CAO (ASTRUSTEES OF CAO TRUST) TOGETHERWITH JUN WUEighteenth RespondentsJASVINDER SINGH AND TINA SINGHNineteenth RespondentsGREEN LAND INVESTMENT LIMITEDTwentieth RespondentREGISTRAR-GENERAL OF LANDTwenty-First RespondentLEQUN ZHAOTwenty-Second RespondentXING ENTERPRISES LIMITEDTwenty-Third RespondentTRINITY HOPE INVESTMENT LIMITEDTwenty-Fourth RespondentFLATBUSH LAND LIMITEDTwenty-Fifth RespondentHIU CHING CHANTwenty-Sixth RespondentCounsel: R O Parmenter for First to Seventeenth and NineteenthRespondentsM E Casey KC and A J Casey for Twenty-Sixth RespondentJudgment:(On the papers)3 October 2023 at 2.30 pmJUDGMENT OF BROWN JA The application for a stay of enforcement is granted in the terms set outat [7].B Costs on this application are reserved.____________________________________________________________________REASONS[1] Hiu Ching Chan, the twenty-sixth respondent in CA312/2023, has applied forleave to bring cross-appeals out of time in both CA450/2022 and CA312/2023. Thoseapplications are set down for hearing on the papers in the week commencing20 November 2023.[2] Ms Chan has filed an application seeking a stay of enforcement1 of that part ofthe judgment of Jagose J in Li v Green Land Investment Ltd2 that relates to theentitlements of the first to seventeenth and nineteenth respondents. In that applicationit is contended that:(i) If the remedies judgment is enforced prior to the determination ofMs Chan's applications for leave, her appeals may be renderednugatory:(i) The relief sought in CA450/2022, for orders declaring that hersale and purchase agreements have equitable priority over thefourth and tenth respondents, and for orders directing the1 Court of Appeal (Civil) Rules 2005, r 12(3)(a).2 Li v Green Land Investment Ltd [2023] NZHC 1399.Registrar-General of Land to give effect to certain transferinstruments will be rendered nugatory;(ii) The relief sought in CA312/2023, and the alternative reliefsought in 450/2022, for charging orders over any funds paid by1st to 17th and 19th respondents in settlement of the purchase ofproperties, will be rendered nugatory if those funds aredispersed from the High Court's trust account prior to thedetermination of Ms Chan's appeals.[3] It is contended that if a stay is not granted there is a risk of a serious injusticeto Ms Chan who could be left without either the properties she contracted to purchaseor the money she paid for them. It is contended that this risk of injustice to Ms Chanoutweighs any injustice to the first to seventeenth and nineteenth respondents causedby the delay in enforcement of the remedies judgment.[4] Mr Parmenter filed a memorandum on behalf of the first to seventeenth andnineteenth respondents opposing Ms Chan's application. Mr Parmenter's principalsubmission (and his preferred position) is that a stay should not be granted and thatMs Chan should be left with her claims against the funds to be held by the Registrarof the High Court at Auckland. With reference to the request for a stay of completionof the settlement of all transactions involving the parties, Mr Parmenter observes thatMs Chan claims only two lots on the basis that she has a superior right, namely lots95 and 118. Mr Parmenter's alternative submission is that any claims that Ms Chanhas to superiority are limited to those two lots.[5] Mr Parmenter rejects the contention that the appeal would be renderednugatory by the lack of a stay given that Ms Chan lives in Australia and that thepurchases were, as he puts it, "in trade". He further submits that delay in settlementswill 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 withMs Chan's applications for leave to bring cross-appeals out of time in the week of20 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 referenceto the principles in Keung v GBR Investment Ltd.33 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 stayingthe completion of the settlement of any of the transactions. However I direct that theproceeds of sale of lots 95 and 118 are to be retained by the Registrar of the High Courtat Auckland pending the decision of this Court on the applications set down for hearingin 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 inthe week of 20 November 2023.Solicitors:Carson Fox Bradley Ltd, Auckland for First to Seventeenth and Nineteenth RespondentsDuthie Whyte, Auckland for Twenty Sixth Respondent