Kea Investments Ltd v Wikeley

The case of Kea Investments Ltd v Wikeley Family Trustee Ltd involves a dispute between a company incorporated in the British Virgin Islands and an entity based in New Zealand. The applicant, Kea Investments Ltd, claims to be the victim of an international fraud perpetrated against it by the respondent, Wikeley Family Trustee Ltd. The Fayette Circuit Court in Kentucky issued a default judgment against Kea, which it now seeks to challenge, as well as to obtain damages for tortious conspiracy. The applicant has already obtained interim and interlocutory injunctive orders in the High Court of New Zealand, restraining the respondent from enforcing the default judgment, but the respondent has taken steps to circumvent and avoid the effect of these orders. The respondent presently resides in Queensland. The applicant has now brought an ex parte application in the Federal Circuit and Family Court of Australia for relief under sections 25 and 26 of the Trans-Tasman Proceedings Act 2010 (Cth), seeking to protect the jurisdiction of the New Zealand court and its processes.

The central legal issue in this case is whether the court should grant the relief sought by the applicant. The applicant argues that the respondent's actions in circumventing the New Zealand court's orders and seeking to enforce the default judgment in Kentucky undermine the authority and integrity of the New Zealand court's jurisdiction. The court must weigh the need to protect the jurisdiction and processes of the New Zealand court against the respondent's rights and interests, including the right to challenge the default judgment and pursue legal remedies in other jurisdictions. The court also has to consider the potential impact of its decision on the respondent's ability to defend against the applicant's claims in New Zealand and the broader implications for international litigation and cooperation.

In granting the relief sought by the applicant, the court found that the respondent's actions in circumventing the New Zealand court's orders and seeking to enforce the default judgment in Kentucky constituted a serious threat to the authority and integrity of the New Zealand court's jurisdiction. The court noted that the respondent had taken steps to appoint a replacement trustee for the Wikeley Family Trust, pursue litigation in Kentucky based on the default judgment, and enforce compliance with subpoenas issued in reliance on the default judgment. The court also found that the applicant had demonstrated a strong likelihood of success in its claims against the respondent in New Zealand, including its allegations of international fraud and tortious conspiracy. The court concluded that the relief sought by the applicant was necessary to protect the jurisdiction and processes of the New Zealand court and to prevent the respondent from undermining the applicant's ability to pursue its claims there. The court made orders restraining the respondent from taking various steps, including appointing a replacement trustee, pursuing litigation in Kentucky based on the default judgment, and enforcing compliance with subpoenas issued in reliance on the default judgment.

The final orders of the court are set out in the amended draft dated 13 April 2023, which is attached as Appendix A to the judgment. The orders restrain the respondent from taking various steps, including appointing a replacement trustee, pursuing litigation in Kentucky based on the default judgment, and enforcing compliance with subpoenas issued in reliance on the default judgment. The orders also require the respondent to cause Wikeley Inc to withdraw or adjourn certain motions in Kentucky and to refrain from providing documents or information obtained under any such subpoena to any other person. The orders have effect until 4pm on 21 April 2023, subject to a further hearing before Justice Cooper on that date. Any party affected by these orders may apply to the Court for them to be set aside or varied.