Wikeley v Kea Investments Limited - [2024] NZCA 609
Date of Judgment
21 November 2024
Decision
Wikeley v Kea Investments Limited (PDF 569 KB)
Summary
Private international law. Anti-suit and anti-enforcement injunctions. Comity. Mr Wikeley and his associates obtained a default judgment (the Kentucky Default Judgment) against Kea for approximately USD 130 million in the Kentucky Circuit Court based on an asserted contract between Kea and the Wikeley Family Trust (the Coal Agreement). Kea says that the Kentucky Default Judgment was obtained by fraud as part of a global fraud instigated by Mr Eric Watson.
In proceedings brought in New Zealand, Kea alleged conspiracy against Mr Wikeley, Wikeley Family Trustee Ltd and Mr Watson. It sought anti-suit and anti-enforcement injunctions to restrain Mr Wikeley from enforcing the judgment. Mr Wikeley initially challenged the High Court’s jurisdiction but failed to file a statement of defence. The hearing proceeded by formal proof. Gault J found that the Coal Agreement was a forgery and the Kentucky Default Judgment had been obtained by fraud. The injunctions sought by Kea were granted.
Mr Wikeley’s appeal was initially advanced on the basis that the Judge relied on inadmissible evidence, lacked jurisdiction to grant the injunctions and that the injunctions were contrary to international comity. Later, Mr Wikeley applied to amend his notice of appeal and to adduce further evidence in order to challenge the Judge’s finding of forgery and fraud. Kea and the interim liquidators also sought to adduce further evidence.
We are satisfied on comity grounds that the permanent injunctions should be discharged. The orders setting aside the injunctions will lie in Court and not become operative for a period of 20 working days from delivery of this judgment. We uphold the other orders made by the High Court, including the appointment of interim liquidators to the Wikeley Family Trust, the declaration that the Kentucky Default Judgment was obtained by fraud and the awards of damages and costs.
Whether Mr Wikeley’s applications to amend the notice of appeal and adduce further evidence should be granted? Held: no. Given Mr Wikeley chose not to defend the proceeding on the merits, nor to advance the evidence on which reliance is now placed, it would be inappropriate to admit the proposed evidence and widen the scope of the appeal. The proposed evidence is not cogent because it only fortifies the Judge’s alternative conclusion that, even if the Coal Agreement was not a forgery, it was nevertheless liable to be set aside for fraud or breach of fiduciary duty. The proposed evidence is that the Coal Agreement was a non-binding heads of agreement. A non-binding heads of agreement is not legally enforceable and it would be fraudulent to obtain judgment based on such an agreement.
Whether Kea’s and the interim liquidators’ applications to adduce further evidence should be granted? Held: yes, in part. Kea’s evidence of WhatsApp messages between Mr Wikeley and his associates is admitted because the messages explain Mr Wikeley’s strategy to effectively render the High Court decision otiose by transferring the benefit of the Kentucky Default Judgment to a new entity. Apart from an affidavit of Mr Hagerman which we admit on updating principles, Kea’s other proposed evidence is not cogent. We admit the proposed evidence of the interim liquidators on standard updating principles.
Whether Mr Wikeley’s challenges to the admissibility of evidence before the Judge should be allowed? Held: yes, in part. We consider 16 of Mr Wikeley’s 44 challenges to the admissibility of evidence before the Judge have merit, variously on the basis that the evidence is inadmissible opinion or hearsay evidence or that it offends s 50 of the Evidence Act 2006.
Whether the successful admissibility challenges affect the Judge’s findings? Held: no. None of the successful evidential challenges materially alter the conclusion to which the Judge could properly come on the finding of fraud. We share the Judge’s concerns about the authenticity of the version of the Coal Agreement which was before him. Even if it was authentic, it was still open to the Judge to conclude that Mr Wikeley and his associates knew the claims made under it in the Kentucky proceeding were not legitimate.
Whether the High Court had jurisdiction? Held: yes. New Zealand was the appropriate forum. The Kentucky Default Judgment is only part of the alleged conspiracy and does not define the jurisdictional limits. Kea’s claim concerned at least two parties who are not parties to the Kentucky proceedings. Nor is the jurisdiction clause in the Coal Agreement determinative. Either the most significant elements of the conspiracy took part in New Zealand or the general rule in s 8 of the Private International Law (Choice of Law in Tort) Act was appropriately displaced. The location of parties and witnesses did not favour Kentucky or the BVI. In any event, the forum conveniens implications of a trial in New Zealand were limited because of the substantive similarities between the applicable New Zealand, Kentucky and Federal United States law.
Whether it was appropriate in international comity terms to grant the anti-suit and anti-enforcement injunctions? Held: no. International comity requires that a New Zealand court should be extremely cautious before deciding that there is a sufficiently real risk that justice will not be done by a foreign court to warrant imposition of anti-suit and/or anti-enforcement injunctions. They are measures of last resort. In this case, Kea applied to the New Zealand High Court because of the apparent unwillingness of the Kentucky Circuit Court to intervene and its concern that the Kentucky Court of Appeals would apply a deferential standard of appellate review. However, comity required that a New Zealand court at least await the outcome of the appeal process before considering whether to issue an anti-suit or anti-enforcement judgment. United States courts are unlikely to look for or need the protection of New Zealand courts and are well capable of identifying fraud and ensuring no reward flows from it.
In proceedings brought in New Zealand, Kea alleged conspiracy against Mr Wikeley, Wikeley Family Trustee Ltd and Mr Watson. It sought anti-suit and anti-enforcement injunctions to restrain Mr Wikeley from enforcing the judgment. Mr Wikeley initially challenged the High Court’s jurisdiction but failed to file a statement of defence. The hearing proceeded by formal proof. Gault J found that the Coal Agreement was a forgery and the Kentucky Default Judgment had been obtained by fraud. The injunctions sought by Kea were granted.
Mr Wikeley’s appeal was initially advanced on the basis that the Judge relied on inadmissible evidence, lacked jurisdiction to grant the injunctions and that the injunctions were contrary to international comity. Later, Mr Wikeley applied to amend his notice of appeal and to adduce further evidence in order to challenge the Judge’s finding of forgery and fraud. Kea and the interim liquidators also sought to adduce further evidence.
We are satisfied on comity grounds that the permanent injunctions should be discharged. The orders setting aside the injunctions will lie in Court and not become operative for a period of 20 working days from delivery of this judgment. We uphold the other orders made by the High Court, including the appointment of interim liquidators to the Wikeley Family Trust, the declaration that the Kentucky Default Judgment was obtained by fraud and the awards of damages and costs.
Whether Mr Wikeley’s applications to amend the notice of appeal and adduce further evidence should be granted? Held: no. Given Mr Wikeley chose not to defend the proceeding on the merits, nor to advance the evidence on which reliance is now placed, it would be inappropriate to admit the proposed evidence and widen the scope of the appeal. The proposed evidence is not cogent because it only fortifies the Judge’s alternative conclusion that, even if the Coal Agreement was not a forgery, it was nevertheless liable to be set aside for fraud or breach of fiduciary duty. The proposed evidence is that the Coal Agreement was a non-binding heads of agreement. A non-binding heads of agreement is not legally enforceable and it would be fraudulent to obtain judgment based on such an agreement.
Whether Kea’s and the interim liquidators’ applications to adduce further evidence should be granted? Held: yes, in part. Kea’s evidence of WhatsApp messages between Mr Wikeley and his associates is admitted because the messages explain Mr Wikeley’s strategy to effectively render the High Court decision otiose by transferring the benefit of the Kentucky Default Judgment to a new entity. Apart from an affidavit of Mr Hagerman which we admit on updating principles, Kea’s other proposed evidence is not cogent. We admit the proposed evidence of the interim liquidators on standard updating principles.
Whether Mr Wikeley’s challenges to the admissibility of evidence before the Judge should be allowed? Held: yes, in part. We consider 16 of Mr Wikeley’s 44 challenges to the admissibility of evidence before the Judge have merit, variously on the basis that the evidence is inadmissible opinion or hearsay evidence or that it offends s 50 of the Evidence Act 2006.
Whether the successful admissibility challenges affect the Judge’s findings? Held: no. None of the successful evidential challenges materially alter the conclusion to which the Judge could properly come on the finding of fraud. We share the Judge’s concerns about the authenticity of the version of the Coal Agreement which was before him. Even if it was authentic, it was still open to the Judge to conclude that Mr Wikeley and his associates knew the claims made under it in the Kentucky proceeding were not legitimate.
Whether the High Court had jurisdiction? Held: yes. New Zealand was the appropriate forum. The Kentucky Default Judgment is only part of the alleged conspiracy and does not define the jurisdictional limits. Kea’s claim concerned at least two parties who are not parties to the Kentucky proceedings. Nor is the jurisdiction clause in the Coal Agreement determinative. Either the most significant elements of the conspiracy took part in New Zealand or the general rule in s 8 of the Private International Law (Choice of Law in Tort) Act was appropriately displaced. The location of parties and witnesses did not favour Kentucky or the BVI. In any event, the forum conveniens implications of a trial in New Zealand were limited because of the substantive similarities between the applicable New Zealand, Kentucky and Federal United States law.
Whether it was appropriate in international comity terms to grant the anti-suit and anti-enforcement injunctions? Held: no. International comity requires that a New Zealand court should be extremely cautious before deciding that there is a sufficiently real risk that justice will not be done by a foreign court to warrant imposition of anti-suit and/or anti-enforcement injunctions. They are measures of last resort. In this case, Kea applied to the New Zealand High Court because of the apparent unwillingness of the Kentucky Circuit Court to intervene and its concern that the Kentucky Court of Appeals would apply a deferential standard of appellate review. However, comity required that a New Zealand court at least await the outcome of the appeal process before considering whether to issue an anti-suit or anti-enforcement judgment. United States courts are unlikely to look for or need the protection of New Zealand courts and are well capable of identifying fraud and ensuring no reward flows from it.