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Businessman Ken Wikeley loses another round in his battle with Sir Owen Glenn

5 Apr 2024

| Author: Andrea Hilton

Application out of time – High Court Rules 2016 r5.49 – Senior Courts Act 2016, s 56 – Sneesby v Southern Response Earthquake Services Ltd [2023] NZCA 206 – application to adduce evidence – Evidence Act 2006, s 67 – Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3NZLR 190 (CA) jurisdiction – forum non conveniens – privilege

Wikeley v Kea Investments Limited [2024] NZCA 58.

 

Kea’s opposition to Wikeley’s application for leave to appeal an interlocutory judgment on jurisdiction to the Court of Appeal and its application to adduce further evidence were successful.

Kea is a British Virgin Islands (BVI) company, owned by Sir Owen Glenn. Ken Wikeley is a company director based in Queensland and WFTL (Wikeley Family Trustee Ltd) is a New Zealand company incorporated by Wikeley.

In 2018, Kea successfully claimed in the English High Court that it had been fraudulently induced to enter an investment by former New Zealand businessman Eric Watson, costing £129 million. WTFL, as trustee for the Wikeley Family Trust, obtained judgment in 2022 against Kea in Kentucky for nearly US$136.3m under a coal agreement because Kea’s agent in BVI failed to forward the proceedings. Kea said the agreement was a forgery.

In October 2022, Kea applied to the New Zealand High Court for an injunction against WFTL, Wikeley and Watson to stop them “perpetuating the worldwide fraud against it”. Interim orders were made without notice in November 2022.

Wikeley protested New Zealand’s jurisdiction and applied to dismiss Kea’s claims on the basis the High Court had no jurisdiction and other forums were more appropriate. He also said the claim was an abuse of process and should be dismissed based on forum non conveniens. On 10 March 2023, the High Court set aside the protest to jurisdiction and declined the application. It continued the interim orders.

The substantive matter was set down for formal proof in May 2023. Wikeley took no action and applied out of time, after the formal proof hearing, to the High Court for leave to appeal the jurisdiction judgment to the Court of Appeal. That application was declined so Wikeley applied directly to the Court of Appeal. Kea opposed Wikeley’s application and applied to adduce further evidence in its opposition.

Wikeley’s actions were relevant to the Court of Appeal’s decision to decline leave. In April 2023, Kea discovered Wikeley was divesting WFTL’s assets and obtained an interim order placing WFTL into interim liquidation. The formal proof hearing was held in May 2023, Kea having given Wikeley notice. Despite taking no action, Wikeley applied in June 2023 for leave to appeal the High Court’s interlocutory jurisdiction judgment. The court declined the application, citing Wikeley’s conduct and ruling that he had failed to meet the required legal threshold.

Despite claiming his delay in appealing was because he could not get representation in New Zealand from March 2023 to June 2023, Wikeley incorporated Wikeley Inc in Kentucky, replaced WFTL as trustee of the Wikeley Family Trust, assigned the default judgment and coal agreement to Wikeley Inc and demanded that the WFTL liquidators transfer all WFTL assets to Wikeley Inc. Wikeley Inc also applied to the Kentucky court to be substituted for WFTL as plaintiff.

The substantive formal proof judgment, delivered in November 2023, made the injunction permanent, issued a declaration and awarded damages against Wikeley. Wikeley appealed the judgment.

Kea obtained WhatsApp messages from the Kentucky court record of Wikeley Inc’s application to be replaced as plaintiff. Kea applied to adduce these messages as evidence to support its opposition. Kea said the messages indicated Wikeley’s failure to appeal in time was not due to him being unable to instruct solicitors in New Zealand. It also said Wikeley was aware that his conduct was unlawful (relating to the coal agreement) and that he was attempting to avoid the New Zealand orders. Wikeley did not challenge the authenticity of the messages.

 

Applicable principles: Claim that jurisdiction was incorrect must be more than arguable – can injustice displace a forum? – criteria for alternative jurisdiction – privilege does not attach to dishonest communications – new evidence must be fresh, credible and cogent – characteristics of error – high threshold to prevent delay of proceedings – whether interests of justice served – conduct of applicant.

 

Held: Kea’s application to adduce further evidence was granted and Wikeley’s application for leave was declined.

Wikeley’s conduct was material to the decision and it was not in the interests of justice to grant the application.

 

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law

 

Wikeley v Kea Investments Limited [2024] NZCA 58.

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