Wikeley v Kea Investments Limited [2024] NZCA 58 (14 March 2024)

Last Updated: 18 March 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA572/2023 [2024] NZCA 58

	BETWEEN	KENNETH DAVID WIKELEY Applicant
	AND	KEA INVESTMENTS LIMITED First Respondent WIKELEY FAMILY TRUSTEE LIMITED (IN INTERIM LIQUIDATION) Second Respondent ERIC JOHN WATSON Third Respondent

Court:	Gilbert and Thomas JJ
Counsel:	A F Pilditch KC, T P Mullins and E F Armstrong for Applicant J B M Smith KC, M C Harris and J L W Wass for First Respondent No appearances for Second and Third Respondents
Judgment: (On the papers)	14 March 2024 at 10.30 am

JUDGMENT OF THE COURT

1. The application to adduce further evidence is granted.
2. The application for leave to appeal is declined.

100. Mr Wikeley must pay Kea’s costs for a standard application on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

• [1] Kenneth Wikeley has applied for leave to appeal a decision of the High Court dated 10 March 2023 (the jurisdiction judgment)^[1] in respect of proceedings commenced by Kea Investments Ltd (Kea) against Mr Wikeley, the Wikeley Family Trustee Ltd (WFTL) and Eric Watson. The High Court dismissed the application of Mr Wikeley and WFTL to dismiss or stay the proceedings on jurisdiction and forum non conveniens grounds.^[2] Mr Wikeley then sought leave to appeal against the parts of the jurisdiction judgment dismissing the application on forum non conveniens grounds.
• [2] Mr Wikeley’s application for leave to appeal to this Court was declined by the High Court in a judgment delivered on 31 August 2023 (the leave judgment) on the grounds the high threshold for leave to appeal was not met and the interests of justice would not be served by granting leave to appeal.^[3] The High Court also concluded that Mr Wikeley’s conduct disentitled him from applying for leave out of time.^[4]

Parties

• [3] Kea is a British Virgin Islands (BVI) company whose shareholder is Sir Owen Glenn. Sir Owen is also a director.
• [4] WFTL is a New Zealand company incorporated by Mr Wikeley on 23 July 2021. Mr Wikeley is a company director and businessman residing in Queensland, Australia. He is the sole director and shareholder of WTFL. Subsequent to the jurisdiction judgment, the High Court placed WFTL into interim liquidation. The liquidators, appointed following the jurisdiction judgment, have informed this Court that they will abide the jurisdiction judgment. Mr Watson, the third defendant, has taken no steps in the proceeding.

Background

• [5] In essence, Kea alleges that the respondents have engaged in a worldwide conspiracy to defraud Kea. On 31 July 2018, the English High Court ruled that Kea and Sir Owen had been fraudulently induced to participate in an investment called Project Spartan at a cost of £129 million.^[5] The mastermind behind the fraud was Mr Watson. Mr Watson was subsequently committed to prison for contempt for his failure to comply with disclosure orders following the English judgment.
• [6] On 29 June 2022, Kea and its England-based solicitor received a letter from a law firm based in the BVI attaching a statutory demand seeking to enforce a judgment debt of USD 136,290,994 (including interest and costs). WFTL, as trustee of the Wikeley Family Trust, had obtained the judgment by default against Kea in Kentucky, United States (the default judgment) based on a purported 2012 Coal Agreement that Kea says is a forgery. Those proceedings had been served on Kea’s registered office in the BVI but Kea’s registered agent did not bring them to Kea’s attention.
• [7] On 31 October 2022, Kea commenced proceedings in New Zealand against WFTL, Mr Wikeley and Mr Watson, and sought an urgent interim injunction without notice restraining the respondents from taking steps to perpetuate the alleged worldwide fraud against it.
• [8] On 4 November 2022, the High Court made interim orders on a without notice basis,^[6] which were varied and extended on notice by consent on 11 November 2022.
• [9] On 10 November 2022, WFTL and Mr Wikeley (the Wikeley defendants) filed an appearance under protest to jurisdiction under r 5.49 of the High Court Rules 2016 on the ground that New Zealand was not the appropriate forum to hear the proceeding. The Wikeley defendants then applied for orders dismissing Kea’s claims on the bases that the High Court had no jurisdiction; other forums were more appropriate, such that the claim’s commencement was an abuse of process; and the claims should be dismissed in the Court’s inherent jurisdiction to dismiss or stay proceedings on the basis of forum non conveniens.^[7]
• [10] In the jurisdiction judgment (dated 10 March 2023) the High Court concluded:

(a) the applicable law did not weigh either way since no relevant issue on which foreign law would be required had been identified;^[8]

(b) in substance, the dispute was whether the defendants were conspiring to injure Kea by fraudulent means; that is, perpetuating a fraud against Kea;^[9] and

(c) on the evidence, the Kentucky Court was not an available or appropriate forum.^[10]

• [11] The High Court declined the application and set aside the protest to jurisdiction.^[11] The High Court continued the interim orders but dismissed Kea’s application for further interim orders.^[12]
• [12] There then followed a series of events described by the High Court in the leave judgment as follows:^[13]

[10] On 17 March 2023, the solicitors for WFTL and Mr Wikeley, Wilson Harle, informed the [High] Court that WFTL and Mr Wikeley intended to seek leave to appeal in respect of the dismissal of their application to dismiss or stay the proceeding and the setting aside of their protest to jurisdiction and that they intended to instruct new counsel. They sought that limited timetable orders be made to allow those steps to be taken.

[11] On 28 March 2023, Mr Wikeley incorporated Wikeley Inc.

[12] On 29 March 2023, [the High Court] directed the defendants to file a defence by 14 April 2023 but deferred making discovery orders as sought by Kea.

[13] On 30 March 2023, Mr Wikeley as director of WFTL purported to assign the default judgment and the Coal Agreement to Wikeley Inc.

[14] On 3 April 2023, Wilson Harle filed an interlocutory application seeking an order declaring that Mr Browne had ceased to be the solicitor on the record for WFTL and Mr Wikeley, together with an (unsworn) affidavit in support.^[14]

[15] On 4 April 2023, Wikeley Inc applied to the Kentucky Court to be substituted as plaintiff in the Kentucky proceeding on the basis of the purported assignments. That motion was filed by the Kentucky lawyers for WFTL (as trustee of the Wikeley Family Trust) and Wikeley Inc.^[15]

[16] On 6 April 2023, Kea applied without notice to [the High] Court for further interim orders having discovered that Mr Wikeley had taken steps purporting to divest WFTL of the default judgment and otherwise to avoid the effect of the New Zealand Court orders. [The High Court] was satisfied that further interim orders should be made on a without notice basis.^[16] [The High Court] found that it appeared likely that Mr Wikeley and WFTL had acted in breach of [the High] Court’s earlier interim orders by assigning or purporting to assign the Coal Agreement and the very substantial default judgment.^[17] In the unusual circumstances, [the High Court] considered it was just and equitable that WFTL be put into interim liquidation.

[17] On 11 April 2023, any application for leave to appeal the 10 March 2023 judgment was due (20 working days after judgment). No application was filed, nor was any other correspondence received.

[18] Also on 11 April 2023, Mr Wikeley incorporated USA Asset Holdings Inc in Kentucky, and the following day purported to appoint that company as the trustee of the Wikeley Family Trust and to change the law of the trust.

[19] On 12 April 2023, Kea commenced proceedings in the Supreme Court of Queensland seeking ancillary interim relief. That Court made without notice orders in support of this proceeding under s 25 of the Trans-Tasman Proceedings Act 2010 (Australia).

[20] On 13 April 2023, Mr Wikeley advised the interim liquidators of WFTL that he had replaced WFTL as trustee of the Wikeley Family Trust with the Kentucky company, USA Asset Holdings Inc. Mr Wikeley also stated to the interim liquidators that their appointment was an aspect of a campaign of oppression and intimidation by the directors of Kea. He called upon them to deliver up any assets or property under their control.

[21] Also on 13 April 2023, the Kentucky lawyers for Wikeley Inc filed a reply in the Kentucky proceeding pursuing the 4 April 2023 motion for substitution.

[22] On 14 April 2023, Mr Wikeley’s statement of defence in this proceeding was due. No statement of defence was filed. That same day, Kea filed a memorandum foreshadowing the possibility of an application for judgment by formal proof if no defence was filed.

[23] On 17 April 2023, following a telephone conference, [the High Court] made an order declaring that Mr Browne had ceased to be the solicitor on the record for WFTL and Mr Wikeley, on terms including that unless and until Mr Wikeley filed an alternative address for service, any further documents may be served on Mr Wikeley by email.^[18]

[24] At that telephone conference Kea indicated that, as the deadline for statements of defence by the first to third defendants had expired without defences being filed or served, it sought to proceed by way of formal proof but intended to notify those defendants so that they had an opportunity to seek leave to file a statement of defence.^[19] The minute following that telephone conference was provided to Mr Wikeley that evening.

[25] On 21 April 2023, Kea’s solicitors emailed Mr Wikeley (and Mr Watson) advising that the hearing of the formal proof application had been fixed for 17 May 2023. The email expressly warned Mr Wikeley of the consequences of failing to take steps before the hearing. Mr Wikeley did not reply.

[26] On 15 May 2023, Mr Dowd [Mr Wikeley’s Queensland solicitor] received and acknowledged an email and attachment from Kea’s solicitors advising of the formal proof hearing to take place on 17 May 2023. The attachment was a copy of Kea’s submissions for the hearing.

[27] On 17 May 2023, the substantive one day hearing proceeded by way of formal proof. Judgment was reserved.

[28] On 1 June 2023, Mr Dowd filed in this proceeding a notice of change of solicitor and a memorandum recording that Mr Wikeley wished to seek a stay of the New Zealand proceedings pending the contempt hearing in Queensland and then to bring an application so that he could defend the proceeding in New Zealand that was subject to a formal proof hearing on 17 May 2023 and to file a defence and evidence and have the defence considered by the [High] Court. That memorandum did not signal any intention to seek leave to appeal.

The leave judgment

• [13] On 22 June 2023, Mr Wikeley’s new solicitor applied for an extension of time to appeal and sought leave from the High Court to appeal to this Court under s 56(3) of the Senior Courts Act 2016. On 31 August 2023, in the leave judgment, the High Court concluded that the length of the delay, the reasons for it, and Mr Wikeley’s conduct disentitled him from applying for leave out of time.^[20] In declining leave to appeal and addressing the issue of forum, the Judge said New Zealand courts have an interest in supervising the conduct of a New Zealand company acting as a trustee of a New Zealand trust, even outside New Zealand; that the location of parties and witnesses did not favour Kentucky; and, insofar as relevant, Kea had not submitted to the jurisdiction of the Kentucky court.^[21]
• [14] The Judge observed that this was not an ordinary commercial dispute — Kea claimed the Wikeley defendants were perpetuating a worldwide fraud against it. It was not accurate to characterise the proceeding as being directed at preventing the Wikeley defendants from enforcing the default judgment in Kentucky.^[22] Further, the Judge considered there was a “good arguable case” that New Zealand law governed Kea’s conspiracy claim.^[23] On the evidence, the Court was not arguably in error nor plainly wrong in concluding New Zealand was the appropriate forum for Kea’s claim.^[24]
• [15] The Judge also observed Mr Wikeley had not addressed whether, in any event, injustice would displace Kentucky as a more appropriate forum. He noted it might do.^[25] In addition, Mr Wikeley was the only defendant seeking to contest the appropriateness of New Zealand as a forum and was unsupported by the liquidators of WFTL. Forum had to be assessed globally and could not be split from the claims against other defendants who had not contested forum conveniens.^[26]
• [16] Finally, the Judge considered that it seemed premature to stay a substantive judgment before it was delivered.^[27]
• [17] The High Court concluded that Mr Wikeley had not met the threshold for leave and it was not in the interests of justice to grant leave.^[28]

Events subsequent to the leave judgment

• [18] On 28 September 2023, Mr Wikeley applied to this Court for leave to appeal the jurisdiction judgment.
• [19] On 17 November 2023, the High Court issued the High Court’s substantive formal proof judgment, granting a permanent injunction, declarations and awarding damages to Kea.^[29] The High Court delivered a further judgment granting additional relief sought by Kea without prejudice to the orders dated 17 November (additional relief judgment).^[30]
• [20] On 8 December 2023, Mr Wikeley filed a notice of appeal in this Court in respect of the formal proof and additional relief judgment, as well as the jurisdiction judgment.
• [21] On 12 January 2024, Kea applied for an order under s 67 of the Evidence Act 2006 in respect of “the WhatsApp messages”. The WhatsApp messages were communications dated between 22 March 2023 and 2 April 2023, exchanged between: Mr Wikeley; Mr Andre Regard, a lawyer acting for WFTL in the Kentucky proceedings; and a Mr Michael Coleman. In a decision of 13 February 2024, the High Court granted Kea’s application, finding it was not prevented from using communications sent in the WhatsApp messages by reason of any privilege asserted by Mr Wikeley.^[31]
• [22] The Judge concluded as follows:^[32]

[42] I accept there is no mention of Mr Watson or Mr Hussain in these messages, but that does not preclude a dishonest purpose on the part of Mr Wikeley. Given the evidence that the Coal Agreement was a forgery and that the default judgment was obtained by fraud (and leaving aside for present purposes evidence of conspiracy that Mr Wikeley submitted is inadmissible against him), I am satisfied there is a prima facie case that the communications were made and/or received by Mr Wikeley for the dishonest purpose of pursuing and benefitting from the forged Coal Agreement and the fraudulent default judgment by seeking to assign them, and move the Trustee of the Wikeley Family Trust away from the reach of the New Zealand Court. There is a prima facie case that Mr Wikeley’s instructions in the messages were part of the instrumentation of that purpose and Mr Regard’s advice was received by Mr Wikeley for that purpose.

[43] Turning to the second purpose alleged by Kea, that the messages indicate a prima facie case of deliberate breach of this Court’s orders amounting to a dishonest purpose, I do not accept the submission that a deliberate breach of Court orders would at most amount to a civil wrong and not meet the threshold for a dishonest purpose. Accepting that not every breach of a Court order is deliberate or dishonest, I consider that a deliberate breach of a Court order that has financial consequences such as removing assets from reach, may well be dishonest.

[44] The messages indicate an awareness by Mr Wikeley that the steps proposed (and taken) were forbidden and a contempt. I am satisfied that, as Mr Cooper submitted, there is also a prima facie case that the communications were made and/or received by Mr Wikeley for the dishonest purpose of deliberately breaching this Court’s 12 December 2022 interim order, which provided that:

“none of the defendants shall sell, assign, gift, grant any security interest in or over, or otherwise in any way whatsoever transfer or encumber any interest any of them may have, directly or indirectly, in any rights any of them may have under or in connection with the Coal Agreement and/or the Default Judgment.”

[45] On either ground raised by Kea, I am satisfied there is a prima facie case that the communications were made and/or received by Mr Wikeley for a dishonest purpose and therefore I must disallow the claim of privilege in this proceeding.

• [23] That leads us to Kea’s application to this Court for leave to adduce further evidence.

Application to adduce further evidence

• [24] Supported by an affidavit, Kea has applied for orders granting leave to adduce the WhatsApp messages as evidence in support of its opposition to Mr Wikeley’s application for leave to appeal. Kea refers in particular to the High Court’s findings in the leave judgment that:^[33]

(a) Mr Wikeley had not provided satisfactory evidence of the reasons for his delay in seeking leave to appeal;

(b) in the period leading up to the deadline for seeking leave to appeal, Mr Wikeley took no steps to engage replacement lawyers to pursue leave to appeal, but instead took steps outside New Zealand such as purporting to assign the default judgment and replace WFTL as trustee of the Wikeley Family Trust in likely breach of the High Court’s earlier interim orders; and

(c) in the circumstances, it was not in the interests of justice to grant an extension of time or to grant leave to appeal.

• [25] Kea submits Mr Wikeley deliberately chose not to seek leave to appeal in favour of taking steps outside New Zealand, in conscious breach of the High Court’s interim orders. These were steps designed to evade the jurisdiction of the New Zealand court and the enforcement of those orders.
• [26] Kea seeks to adduce those communications in the present application. Kea submits that the documents are relevant to Mr Wikeley’s failure to apply to the High Court for leave to appeal in time and to this Court’s assessment as to whether granting leave is in the interests of justice. Noting Mr Wikeley’s delay in seeking leave to appeal (required by 11 April 2023 but not made until 22 June 2023), Kea submits that it was necessary for it to ask the Court to draw an inference that Mr Wikeley had failed to apply for leave on time because, rather than seeking leave for appeal, he had preferred to breach the High Court’s interim orders and frustrate New Zealand’s jurisdiction. Kea submits:

(a) the WhatsApp messages sweep aside any need to make inferences, as they are direct evidence that, instead of appealing the New Zealand orders, Mr Wikeley deliberately breached them by assigning the Coal Agreement and the default judgment:

... we can clearly say [WFTL] has NO assets and NO New Zealand Jurisdiction?

Basically goodbye!!...

...

Whatever happens above surely WFTL needs to be removed as the Trustee completely urgently this week? Then its got nothing just a shell?

...

KEA 100% will show KY judge that WFTL and KW are under Court injunction in NZ, and we are not allowed to transfer the Judgement/ Contract to Wikeley Inc.
* What do you tell the KY judge answer to this challenge?
You have some LEGAL precedents to quote that NZ Court cannot legally stop WFTL doing what it has done. Yes its against a Court Order , but nothing they can do about it legally ? Michael you say its Legal 100% just naughty.

(b) the WhatsApp messages show that Mr Wikeley was conscious of the unlawfulness of his conduct in continuing to act on the Coal Agreement and took actions to avoid the New Zealand anti-suit orders; and

(c) the WhatsApp messages contradict the basis on which the application for leave to appeal was sought out of time, that Mr Wikeley was unable to instruct lawyers in New Zealand, through demonstrating that he did not seek leave to appeal in time because he was taking steps to thwart the effect of the New Zealand orders and the New Zealand proceedings generally. As Mr Wikeley put it on 23 March 2023: “Shift the Judgement and NZ goes to Hell.”

• [27] Mr Wikeley opposes the application for leave to adduce further evidence on the basis it is not relevant to Mr Wikeley’s application for leave to appeal. Apart from a short memorandum from his lawyers, Mr Wikeley does not propose to file further submissions so as not to further delay determination of leave. Further, he does not consider there is any need for the application to adduce further evidence to be determined separately before the leave application. He requests the application be determined on the papers alongside the leave appeal.
• [28] Counsel for Mr Wikeley points out that Mr Wikeley’s leave application to this Court does not challenge the High Court’s findings about Mr Wikeley’s conduct during the relevant period, nor attempt to excuse it. Rather, Mr Wikeley’s position is that his proposed appeal is of such significance that leave ought to be granted regardless of that conduct. The general public importance of the case outweighs any impact of the delay, because this is the first New Zealand case to consider the threshold for forum conveniens in the context of global anti-enforcement injunctions, and the first case in the common law world to make an anti-enforcement injunction that applies in a forum seized of the issues between the parties.
• [29] We are satisfied that the test for new evidence is met because the evidence is:^[34]

(a) Fresh: Kea was not aware of the WhatsApp messages until they were published on the Kentucky court record. Kea acted expeditiously to address possible privilege in the messages, and made this application immediately thereafter.

(b) Credible: Mr Wikeley has not challenged their authenticity.

(c) Cogent: they are plainly relevant to the question of why Mr Wikeley delayed in seeking leave to appeal and are consistent with the High Court’s reasons (based on less direct evidence) for refusing an extension of time and leave to appeal. They are relevant generally to whether it would be in the interests of justice to grant leave to appeal.

• [30] Kea’s application for leave to adduce further evidence is granted.

Application to this Court for leave to appeal

• [31] Mr Wikeley contends that leave should be granted by this Court because:

(a) it is arguable that the High Court was plainly wrong in dismissing Mr Wikeley’s application to dismiss or stay the proceeding on forum non conveniens grounds, because:

(i) the High Court’s jurisdiction had been invoked to make worldwide interim orders contrary to the principles of judicial comity, and where Kea had engaged in inconsistent conduct in Kentucky and the BVI;

(ii) it was wrong to conclude that a court in Kentucky, already seized of the issues, may not be an available forum for Kea’s claims;

(iii) it was wrong to conclude that, even if available, Kentucky was not an appropriate forum; and

(iv) it was wrong to conclude that New Zealand was the appropriate forum;

(b) as this case is one of only a handful of cases in the common law world where anti-enforcement injunctions have been considered, and is the first New Zealand case to consider the threshold for forum conveniens in the context of a global anti-enforcement injunction, the errors are:

(i) of sufficient general and public importance; and

(ii) of significant private importance to Mr Wikeley;

such that the interests of justice are served by granting leave.

Opposition

• [32] Kea opposes the application for leave because:

(a) Prior to considering the question of leave, Mr Wikeley must persuade this Court that the High Court was wrong to decline the extension of time. The High Court was correct to dismiss the application for an extension of time due to the significant delay, Mr Wikeley’s disentitling conduct and evasion of the Court’s orders, prejudice to Kea, and a lack of public interest or sufficient private interest.

(b) The Judge properly took account of comity considerations. Mr Wikeley’s arguments about the exceptional nature of anti‑enforcement injunctions are misdirected, as the propriety of interim relief was a discrete question to jurisdiction. Accordingly, there was no error in the Judge’s approach: he expressly considered comity; relied on uncontested expert evidence; and was correct in finding that the New Zealand courts have a proper basis in taking jurisdiction where New Zealand citizens use a New Zealand trust to perpetrate fraud.

(c) The Judge was correct in finding that New Zealand was an appropriate and available forum.

(d) There is no prospect of this Court reversing the High Court’s decision where the other defendants have not sought leave, and a formal proof hearing, involving the exercise of substantive jurisdiction over merits, has already been held.

Relevant leave provisions

• [33] Section 56 of the Senior Courts Act 2016 provides:

56 Jurisdiction

(1) The Court of Appeal may hear and determine appeals—

(a) from a judgment, decree, or order of the High Court:

(b) under the Criminal Procedure Act 2011:

(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2) Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.

(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b) granting summary judgment.

(5) If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.

(6) If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.

• [34] The application for leave is made under s 56(5) of the Senior Courts Act 2016.
• [35] The requirement for leave is to ensure that appeals of interlocutory orders which lack merit or are of no great significance to the parties or more generally do not delay the proceedings. The following considerations are likely to be relevant:^[35]

(a) A high threshold exists.

(b) The applicant must identify an arguable error of law or fact.

(c) The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d) The circumstances must warrant incurring further delay.

(e) The ultimate question is whether the interests of justice are served by granting leave.

Discussion

• [36] Mr Wikeley seeks leave to appeal the High Court's jurisdiction judgment which refused to dismiss or stay the proceeding. By the time of his application to the High Court for leave to appeal, the formal proof hearing had already been held. Mr Wikeley knew about the formal proof hearing but delayed his application for leave to appeal until after it had taken place.
• [37] The High Court’s substantive judgment as a result of the formal proof hearing has now been delivered.^[36] Mr Wikeley has a right of appeal against the substantive judgment and he has exercised that right.
• [38] Of three defendants, only Mr Wikeley seeks leave to appeal. He claims the alleged error on forum is of significant private importance to him. However, he has failed to identify any injustice or prejudice to him should leave to appeal not be granted. The sole ground of appeal in respect of the jurisdiction judgment rests on forum, which is an argument he maintains is available to him in his substantive appeal pursuant to s 56(6) of the Senior Courts Act. His submissions filed on the substantive appeal address that issue.
• [39] The application to this Court for leave to appeal was made within the time required pursuant to s 56(5), that is within 20 working days after the date of the refusal of leave by the High Court. This is not an appeal against the High Court’s leave judgment or refusal to extend the time for appeal. The reason for delay in seeking leave to appeal and Mr Wikeley’s conduct is, however, relevant to the assessment of whether the interests of justice are served by granting leave to appeal.
• [40] Counsel for Mr Wikeley asks this Court to put Mr Wikeley’s disentitling conduct to one side on the basis that his proposed appeal is of such significance that leave ought to be granted regardless of that conduct. We do not consider we can dismiss his conduct quite so easily. The sequence of events is important and informative. Mr Wikeley had indicated an intention to appeal but then, as evidenced by the WhatsApp messages, deliberately attempted to flout the High Court’s interim orders. He does not dispute that. He was on notice that Kea sought to proceed by formal proof and was warned of the consequences of failing to act before the formal proof hearing. The application to the High Court for an extension of time and leave to appeal was not made until one month after the formal proof hearing, over two months late.
• [41] Mr Wikeley’s conduct weighs heavily against his application for leave to appeal. Further, given Mr Wikeley has appealed as of right against the substantive judgment and he has not pointed to any prejudice or injustice if leave to appeal against the interlocutory judgment is declined, we are not persuaded that the interests of justice require that we grant his application.

Outcome

• [42] The application to adduce further evidence is granted.
• [43] The application for leave to appeal is declined.
• [44] Mr Wikeley must pay Kea’s costs for a standard application on a Band A basis with usual disbursements.

Solicitors:
Lee Salmon Long, Auckland for Applicant
Gilbert Walker, Auckland for First Respondent

---

^[1] Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 [jurisdiction judgment].

^[2] At [99].

^[3] Kea Investments Ltd v Wikeley Family Trustee Ltd (In Interim Liquidation) [2023] NZHC 2407 [leave judgment] at [87].

^[4] At [59].

^[5] Glenn v Watson [2018] EWHC 2016 (Ch), culminating at [528].

^[6] Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881.

^[7] High Court Rules 2016, rr 5.49, 7.49 and 15.1. Orders for costs were also applied for.

^[8] Jurisdiction judgment, above n 1, at [81].

^[9] At [82].

^[10] At [84]–[87].

^[11] At [99].

^[12] At [92], [98] and [101]–[102].

^[13] Leave judgment, above n 3.

^[14] The accompanying memorandum indicated that the application and affidavit had not been served on Kea (referring to counsel’s fiduciary obligations and obligations of confidentiality) but that the plaintiff’s solicitors would be advised by email that the documents had been filed. The documents were subsequently released to the new solicitors.

^[15] Wikeley Inc also filed motions that it would bring upon substitution to compel discovery from Kea and an anti-suit injunction restraining Kea from continuing this proceeding.

^[16] These orders included adding Wikeley Inc as a defendant.

^[17] Citation omitted.

^[18] Citation omitted.

^[19] At [8], citing High Court Rules 2016, r 15.9(3). Kea also sought to abridge time for Wikeley Inc to file a statement of defence.

^[20] Leave judgment, above n 3, at [59] and [87].

^[21] At [75].

^[22] At [79].

^[23] At [80], citing Private International Law (Choice of Law in Tort) Act 2017. In the jurisdiction judgment, above n 1, at [81] fn 58, Gault J said: “In relation to Kea’s tort (conspiracy) claim, while I accept that the acts in Kentucky were significant, I consider there is a good arguable case that New Zealand law governs Kea’s conspiracy claim applying the Private International Law (Choice of Law in Tort) Act 2017 and in particular, as Kea submitted, applying the general rule in s 8 (on the basis that incorporation of WFTL as the vehicle to bring the fraudulent claim under the Coal Agreement and Mr Wikeley’s appointment of WFTL as the trustee of the Wikeley Family Trust were the most significant elements of the tort) or, if necessary, the displacement principle in s 9.”

^[24] Leave judgment, above n 3, at [81].

^[25] At [82].

^[26] At [83].

^[27] At [90].

^[28] At [87].

^[29] Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3260 [formal proof judgment] at [156].

^[30] Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3523 [additional relief judgment] at [7].

^[31] Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2024] NZHC 163 [the WhatsApp messages judgment] at [45].

^[32] Footnote omitted.

^[33] Leave judgment, above n 3, at [42], [47]–[50], [59]–[60] and [87].

^[34] Court of Appeal (Civil) Rules 2005, r 45; Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA).

^[35] See Tomar v Tomar [2021] NZCA 419 at [6] and Sneesby v Southern Response Earthquake Services Ltd [2023] NZCA 206 at [9].

^[36] Formal proof judgment, above n 29.