Wikeley v Kea Investments Ltd
[2024] QCA 201
•29 October 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Wikeley v Kea Investments Ltd [2024] QCA 201
PARTIES:
KENNETH DAVID WIKELEY
(appellant)
v
KEA INVESTMENTS LTD
(respondent)FILE NO/S:
Appeal No 13868 of 2023
SC No 4338 of 2023DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2023] QSC 215 (Cooper J); Supreme Court at Brisbane – Unreported, 27 October 2024 (Cooper J)
DELIVERED ON:
29 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
22 July 2024
JUDGES:
Dalton JA and Wilson and Crowley JJ
ORDERS:
1. The appeal is dismissed with costs.
2. The notice of contention is dismissed.
CATCHWORDS:
PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF FOREIGN PROCEEDINGS: ANTI SUIT INJUNCTIONS – TO PROTECT JURISDICTION OF COURT AND ITS PROCESS – where the respondent argued the appellant fraudulently obtained a default judgment against the respondent in the Fayette Circuit Court in Kentucky because the Coal Agreement which underlay the judgment was a fabrication – where the respondent obtained interim and interlocutory injunctive orders in the High Court of New Zealand restraining the appellant from enforcing the Kentucky judgment – where the appellant attempted to circumvent the New Zealand orders – where the primary judge issued anti-enforcement restraining orders pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) in support of the New Zealand proceeding – where the primary judge heard the appellant’s application to set aside the existing court orders and made adjustments to previous orders but otherwise dismissed the application – whether the primary judge misapplied the prima facie case test established in Australian Broadcasting Corporation v O’Neill – whether the primary judge erred in finding that fraud was an exception to the principles of comity justifying the making of an anti-enforcement injunction that operated in Kentucky – whether the primary judge erred in concluding there was a serious question to be tried – whether the primary judge erred in applying the law as to balance of convenience
PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM – GENERALLY – where the appellant was present in Queensland when he took steps to obtain and enforce the Kentucky judgment – whether the Queensland proceeding was oppressive or vexatious – where the appellant incorporated a foreign registered corporation in Kentucky, Wikeley Inc, which was not a party to the Queensland proceeding – where the respondent contended Wikeley Inc was incorporated for the purpose of furthering the fraudulent conspiracy against it – where the primary judge’s orders restrained the appellant from causing Wikeley Inc to pursue litigation in the Kentucky court designed to enforce the Coal Agreement – whether the effect of the primary judge’s orders on a foreign corporation which was not a party to the proceeding meant that the Supreme Court of Queensland was a clearly inappropriate forum
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the appellant was prevented from leaving Australia until 28 days after the final determination of the New Zealand proceeding, or an earlier order, and required to deliver up his passport – whether the primary judge erred in continuing the no-departure and passport orders
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – where the appellant contended that the respondent made material non-disclosures at the ex parte hearing which led to the anti-enforcement restraining orders – whether the respondent did not comply with its obligation of disclosure at the ex parte hearing such that the orders should have been discharged
Trans-Tasman Proceedings Act 2010 (Cth), s 25, s 26
Abouloff v Oppenheimer & Co (1882) 10 QBD 295, cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, considered
Bank St Petersburg OJSC v Arkhangelsky [2014] 1 WLR 4360; [2014] EWCA Civ 593, cited
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, considered
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41, considered
Ellerman Lines Ltd v Read [1928] 2 KB 144, considered
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; [1997] SASC 6370, considered
SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, considered
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, citedCOUNSEL:
A J Schriiffer for the appellant
G J Gibson KC and P K O’Higgins KC with B W Wacker for the respondentSOLICITORS:
Redchip Lawyers for the appellant
Colin Biggers and Paisley for the respondent
DALTON JA: This appeal is brought against orders made on 4 October 2023 and 27 October 2023. These were the penultimate, and ultimate orders in a series of orders made by the primary judge beginning on 12 April 2023 between the same parties, and in relation to the same subject matter. The orders could be described as anti-enforcement injunctions in relation to a judgment obtained in the State of Kentucky, United States of America. The appellant puts forward no fewer than nine grounds of appeal in a notice of appeal which is 13 pages long. In my view the appeal should be dismissed with costs. Some of the grounds of appeal were not arguable, in my view. A notice of contention was filed by the respondent; it should be dismissed with no order as to costs.
Litigation History
Judgments which precede mine set out the history of this matter and I am grateful to adopt what has been said by other judges on other occasions. The matter first came on before the Supreme Court on an ex parte application on 12 April 2023. The primary judge made orders that day and delivered very detailed reasons.[1] Those reasons set out the background to the present dispute as follows:
[1]Kea Investments Ltd v Wikeley [2023] QSC 79.
“[2] The applicant is Kea Investments Ltd (Kea), a company incorporated in the British Virgin Islands and owned solely by Sir Owen Glenn (Sir Owen). Kea asserts that it is the subject of a significant international fraud perpetrated against it by several parties, but relevantly for present purposes, the respondent in this proceeding, Kenneth David Wikeley. It is said that the conspiracy arises out of a long-running dispute between Sir Owen and Eric Watson who was found by the High Court of Justice of England and Wales to have fraudulently induced Kea and Sir Owen to part with the sum of £129 million.[2]
[3] Kea asserts that as part of this conspiracy, a New Zealand company, the Wikeley Family Trustee Ltd (WFTL) and Mr Wikeley, who is the sole shareholder and director of the company, fraudulently procured the Fayette Circuit Court in Kentucky in the United States (Kentucky Court) to issue a default judgment in favour of WFTL against Kea for in excess of US$120 million.[3]
…
[2]Glenn v Watson [2018] EWHC 2016 (Ch); Kea Investments Ltd v Watson [2020] EWHC 2599 (Ch); Kea Investments Ltd v Watson [2020] EWHC 2796 (Ch).
[3]Wikeley Family Trustee Ltd v Kea Investments Ltd (Commonwealth of Kentucky, Fayette Circuit Court, 9th Division, Civil Action No. 21-CI-02508 (referred to in these reasons as the Kentucky judgment or Kentucky proceeding).
Proceeding in New Zealand
[5] Kea has commenced a proceeding in the High Court of New Zealand against WFTL, Mr Wikeley and Mr Watson. In that proceeding, Kea seeks relief with respect to the Kentucky judgment and damages for tortious conspiracy. In support of that proceeding, Kea obtained interim and interlocutory injunctive orders against WFTL and Mr Wikeley, restraining them from enforcing the Kentucky judgment in any way: a form of anti-suit injunction. Initially, WFTL and Mr Wikeley appeared to comply with the injunctions ordered in the New Zealand proceeding.”
The primary judge’s reasons of 12 April 2023 set out relevant parts of the judgment of Gault J of the New Zealand High Court granting the injunctions just referred to:
“[6] In 2011–2012, Mr Watson sought to persuade Sir Owen Glenn to make investments with him. Investments followed but the relationship broke down around 2013, which led to disputes.
[7] On 31 July 2018, the English High Court ruled that Kea and Sir Own Glenn [sic] had been fraudulently induced to participate in an investment called Project Spartan at a cost of £129 million. The architect of the fraud was Mr Watson. Nugee J was ‘completely satisfied’ that Mr Watson had ‘resorted to deliberate deception’. The Judge also found that Mr Dickson, Kea’s director at the relevant time, had breached his fiduciary duties to Kea. Mr Watson was subsequently committed to prison for contempt for his failure to comply with disclosure orders following the English judgment. Kea is still trying to enforce the judgment against Mr Watson.
…
[8] On 29 June 2022, Kea and its English solicitor received a letter from a BVI-based law firm attaching a statutory demand seeking to enforce against Kea a judgment debt of USD136,290,994 (including interest and court/service costs). The statutory demand indicated that WFTL, as trustee of the Wikeley Family Trust (a New Zealand trust), had obtained a default judgment against Kea from a Court in Kentucky, USA dated 31 January 2022 for alleged breach of a purported ‘Coal Funding and JV Investment Agreement’ said to have been executed in 2012 (Coal Agreement). This June 2022 letter was the first Kea had heard of both the Coal Agreement and the Kentucky Court proceeding. The Coal Agreement was not provided to Kea with the statutory demand; it was provided on 7 July 2022. Kea considers the Coal Agreement, and the claims made under it, are fabrications constructed by Mr Wikeley and Mr Watson to defraud Kea.
[9] Following enquiries with Kea’s registered agent in BVI, Kea learned that the First Amended Complaint in the Kentucky proceeding had been delivered to the offices of Kea’s registered agent in BVI. However, Kea’s registered agent did not pass the complaint on to Kea.
[10] On 12 July 2022, Kea applied to set aside the statutory demand in the BVI. That application is listed for 5 December 2022.
[11] As Kea had not been aware of WFTL’s claim in Kentucky, Kea did not take the required steps to defend it. The Kentucky Court entered default judgment against Kea on 31 January 2022 for USD123,750,000 plus interest and costs. The judgment was entered without any hearing and therefore without any examination by the Court of the merits of WFTL’s claim.
[12] Kea instructed Kentucky lawyers to apply to set aside the default judgment. That motion to set aside the default judgment was filed on 21 July 2022. It was heard on 7 October 2022 and denied on 18 October 2022 on the ground that Kea had been properly served. The Court held that, because Kea had failed to take steps following service at its registered office, the Court did not have to, and would not, consider whether there was a meritorious defence or whether the plaintiff would suffer detriment if the judgment was set aside.
[13] On 21 October 2022, Kea issued a motion to amend, alter or vary (MAAV) the denial of its application. This was heard on 28 October 2022 and the Court indicated that it would deny the motion. As at the date this proceeding was commenced, that order had not been entered. Kea intends to issue and serve an appeal against the order of 7 October 2022 and the dismissal of the MAAV as soon as possible. However, any appeal will take time and Kea is concerned there is a substantial risk that the Kentucky Court of Appeal will take the same approach as the first instance Judge and not consider the merits.
[14] On 10 October 2022, WFTL served notice on Kea that it intended to serve (reissued) Kentucky subpoenas on some 11 banks in Kentucky and New York, and a New Jersey subpoena on a bank in New Jersey, effectively seeking details of all dollar transactions carried out by Kea since 1 January 2012. Kea is taking steps in relation to such subpoenas and a hearing is scheduled in Kentucky on Friday 4 November 2022 in which it will seek to pause subpoenas and interrogatories, but Kea is concerned that, as the Kentucky Court has refused to set aside the default judgment and consider the fraud issue, it will not entertain further argument along those lines.
Coal Agreement
[15] The Coal Agreement purports to be an agreement between Mr Wikeley as trustee for the Wikeley Family Trust New Zealand and Kea represented by Mr Dickson. It is dated 23 October 2012 and witnessed by Mr Watson. It purports to commit Kea to provide capital to fund coal investments presented by Mr Wikeley. Kea considers the document is a forgery or at least unenforceable, essentially on the grounds that:
(a)In the nine years between the purported agreement and the Kentucky proceeding, WFTL had made no demand on or complaint to Kea in relation to funds payable under the agreement; there was no pre-action correspondence.
(b)Kea has no records relating to the Coal Agreement. No such documents were provided in 2013 when Mr Dickson was ordered by the Nevis Court to provide all of Kea’s records. Nor is an interest under the Coal Agreement mentioned in the list of assets provided under the Nevis Court order.
(c)Neither Sir Owen Glenn, nor Mr Munro of the Nevis professional trustee, nor any of Kea’s current directors, had any knowledge of the Coal Agreement prior to receipt of the statutory demand.
(d)The Coal Agreement is irregular, oddly formatted and not professionally drafted.
(e)The Coal Agreement makes no commercial sense. It involves the payment of very significant sums of money to the Wikeley Trust in return for very little.
(f)Mr Wikeley incorporated WFTL in New Zealand on 23 July 2021, shortly before commencing the Kentucky proceeding.
(g)On the date that Mr Watson ostensibly witnessed the signatures of both Mr Wikeley and Mr Dickson, Mr Dickson was in Paris. Mr Wikeley’s subsequent evidence in Kentucky conflicts with WFTL’s own complaint and the document itself.
(h)There is no mention of the Coal Agreement in the detailed meeting pack for the meeting in Paris on 23 October 2012 (when Mr Wikeley now claims it was signed by Mr Dickson), or in any of the emails setting up that meeting with Mr Dickson.
(i)WFTL has not produced any document showing or evidencing any requests for drawdowns under the agreement, or any documents evidencing that it was entered into or performed, other than the purported agreement itself.
(j)WFTL’s Kentucky lawyer has refused to say whether he or his client has the original of the agreement.
(k)Mr Watson appears to be supporting WFTL in its Kentucky litigation. WFTL has produced documents from the Spartan litigation trial bundle in evidence in Kentucky despite the fact that neither it nor Mr Wikeley were involved in that litigation.
(l)Mr Wikeley, Mr Watson and Mr Dickson have all been subject to adverse findings by the English or New Zealand Courts. …”[4]
[4]Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881, [6]–[15] (citations omitted).
Having set out that history, the primary judge continued, in his reasons of 12 April 2023, noting that in the New Zealand proceeding Kea asserted that “the agreement which underlies the Kentucky judgment as the foundation for the claim against Kea for damages for breach of contract, is a fabrication and otherwise unenforceable” – [13]. The primary judge noted that in New Zealand, orders had been made on 10 March 2023 on an inter partes basis, which restrained Mr Wikeley and WFTL from pursuing any litigation or taking any steps to enforce, or otherwise act on the agreement said to underpin the Kentucky judgment, or the Kentucky judgment itself, or a statutory demand made by WFTL to Kea for the amount of the Kentucky judgment. The orders were very detailed and the primary judge notes that “It was plain on the face of the orders made by the New Zealand court that Mr Wikeley was restrained from causing or permitting WFTL to assign the Kentucky judgment” – [17].
As set out at paragraph [12] of the judgment of Gault J, above, the Kentucky court refused to consider the merits of Kea’s argument that the default judgment had been procured by fraud. Kea filed an appeal against the decision of the Kentucky court. Unfortunately that appeal is in abeyance. Orders made by Gault J in New Zealand on 6 April 2023 included an order that liquidators be appointed to WFTL. On 20 April 2023 those liquidators filed a petition in the United States Bankruptcy Court for recognition of the interim liquidation of WFTL. That relief was granted on 21 April 2023. On 25 May 2023 the US Bankruptcy Court recognised the interim liquidation of WFTL, and that has had the effect that both the debt proceeding in the Kentucky trial court and the Kentucky appeal are stayed.
The primary judge continued the narrative that led to the ex parte application before him:
“[20] On 5 April 2023, Kea became aware that Mr Wikeley had taken steps in Kentucky to incorporate Wikeley Inc.
[21] That company was incorporated on 28 March 2023, and on 30 March 2023, Mr Wikeley signed documents in Brisbane purporting to assign the Kentucky judgment debt, and the Coal Agreement said to underlie that judgment, from WFTL as trustee of the Wikeley Family Trust to Wikeley Inc.
[22] On 4 April 2023, Mr Wikeley caused WFTL to apply to the Kentucky Court for Wikeley Inc to be substituted as plaintiff in the Kentucky proceeding together with motions that Wikeley Inc would bring upon substitution to compel discovery from Kea of documents relevant to the location of assets, as well as an anti-suit injunction, restraining Kea from continuing the New Zealand proceeding.
[23] That substitution motion is scheduled to be heard by the Kentucky Court on 14 April 2023. It was as a result of those developments, including the contravention of the New Zealand orders by the purported assignment, that on 6 April 2023, Kea obtained further ex parte orders in the New Zealand proceeding, including orders restraining WFTL and Mr Wikeley from taking steps to enforce or otherwise act on the purported assignment of the Kentucky judgment and requiring them to withdraw, adjourn, or otherwise seek a [dis]continuance of the Kentucky hearing, scheduled for 14 April 2023.”
The Supreme Court of Queensland became involved because at the time of at least some of the above conduct, Mr Wikeley was living in Brisbane, or Ningi. The primary judge noted:
“[45] In that regard, I note that this court plainly has jurisdiction over Mr Wikeley, given his presence in the jurisdiction. Further, I consider that Mr Wikeley’s conduct in Queensland which includes swearing an affidavit used in the Kentucky proceedings and executing the purported assignment of the Kentucky judgment from WFTL to Wikeley Inc has a sufficient connection to make Queensland an appropriate forum if a similar proceeding had been brought in this court.”
On 12 April 2023 the primary judge made orders against Mr Wikeley on the ex parte application of Kea. Those orders were made pursuant to ss 25 and 26 of the Trans‑Tasman Proceedings Act 2010 (Cth), in support of the New Zealand proceeding. The orders were in the form of anti-enforcement restraining orders already made by the New Zealand court. In addition, the primary judge made an order restraining Mr Wikeley from leaving Australia, and compelling him to deliver up his passport to the Registrar of the Supreme Court of Queensland.
The 12 April 2023 orders were revised on 13 April 2023; I will refer to the 13 April orders from this point onwards. The revisions are immaterial to this appeal. On 14 April 2023 Martin SJA made orders for substituted service, the effect was that the 13 April orders were deemed to have been served on Mr Wikeley on 14 April 2023.
On 20 April 2023 Kea filed an application seeking that Mr Wikeley be found to have committed a contempt of court by failing to comply with requirements of the 13 April orders (contempt application).
The return date for an inter partes hearing of the issues raised by the original application for an injunction was 21 April 2023. On that hearing Mr Wikeley was represented by a solicitor. The court made orders continuing the 13 April orders until 28 days after the final determination of the New Zealand proceeding or earlier order, and issued a warrant for Mr Wikeley’s arrest given his apparent non-compliance with parts of the 13 April orders, including the requirement that he surrender his passport.[5]
[5]These matters are drawn from paragraphs [5]–[9] of the primary judge’s Reasons for Judgment delivered 4 October 2023; Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215.
By 3 May 2023 Mr Wikeley had surrendered his passport; the arrest warrant was vacated and he was living at a specified address subject to a curfew as a condition of the adjournment of the contempt application.
On 15 June 2023 Mr Wikeley filed an amended application to set aside the existing court orders and have both the original civil proceeding and the contempt application permanently stayed. That application was heard by the primary judge in August 2023. On 4 October 2023 he made some adjustments to previous orders, but essentially dismissed Mr Wikeley’s application. The current appeal is from that dismissal. I will deal with each of the grounds of appeal in turn.
Ground 1: Serious Question to be Tried
The first ground of appeal is that the primary judge erred in law, “in concluding that there was a serious question to be tried that the court would issue a permanent anti-enforcement injunction on the terms of the interlocutory injunction”. The notice of appeal listed six separate grounds and 10 separate sub-grounds in relation to this appeal ground. Before coming to any of these points, I will examine the parts of the judgment below which dealt with the issue of whether the respondent had demonstrated a serious question to be tried.
The primary judge granted relief, both on an ex parte and inter partes basis, under ss 25 and 26 of the Trans-Tasman Proceedings Act. Those sections provide:
“25 Application to an Australian court for interim relief
A party or intended party to a civil proceeding commenced or to be commenced in a New Zealand court may apply to any of the following Australian courts for interim relief (other than a warrant for the arrest of property) in support of the New Zealand proceeding:
(a)the Federal Court;
(b)the Federal Circuit and Family Court of Australia (Division 1);
(c)the Supreme Court of a State or Territory;
(d)another Australian court prescribed by the regulations.
26Giving of interim relief in support of a New Zealand proceeding
(1)On application under section 25, the Australian court may give interim relief (other than a warrant for the arrest of property) in the terms it considers appropriate if:
(a) the court considers it appropriate to give the interim relief in support of the New Zealand proceeding; and
(b) if a proceeding similar to the New Zealand proceeding had been commenced in the court, the court:
(i)would have had power to give the interim relief in that similar proceeding; and
(ii)would have given the interim relief in that similar proceeding.
(3)This section does not affect any other powers of the Australian court to give interim relief in support of the New Zealand proceeding.”
In determining whether or not to make an order in support of the New Zealand proceeding, the primary judge examined the claims made in that proceeding:
“[37] Kea commenced the New Zealand proceeding on 31 October 2022.
[38] In the statement of claim filed in the New Zealand proceeding, Kea has pleaded the following background facts in support of its claim of fraudulent conspiracy:
(a)the dispute between Sir Owen Glenn and Mr Watson and the litigation concerning Project Spartan;
(b)Mr Wikeley’s incorporation of WFTL and the course of the Kentucky proceeding;
(c)that Mr Watson provided assistance to WFTL in its conduct of the Kentucky proceeding, including by providing documents extracted from the trial bundle used in the Project Spartan litigation;
(d)conduct by Mr Rizwan Hussain, said to be a known fraudster acting in concert with Mr Watson, which included:
(i)an attempt to take control of Kea by purporting to replace its directors and to settle the Kentucky proceeding for the sum of US$100 million;
(ii)writing to the Kentucky Court and purporting to withdraw Kea’s motion to set aside the default judgment;
(iii)bringing proceedings in the High Court of England and Wales in Kea’s name against Sir Owen Glenn and Kea’s lawyers in England and the BVI;
(e)Kea’s efforts to strike out the proceedings instituted by Mr Hussain;
(f)that WFTL’s Kentucky lawyers filed a notice of settlement agreement in the Kentucky proceeding following the purported settlement effected by Mr Hussain.
[39] As to the default judgment, Kea has pleaded:
(a)that the Coal Agreement is a forgery and was not signed by Mr Dickson on behalf of Kea;
(b)alternatively, if Mr Dickson did sign the Coal Agreement, its terms were so uncommercial that Mr Dickson could not have believed in good faith that entering into that agreement was in the best interests of Kea and thereby breached his duties as a director, and that Mr Wikeley and Mr Watson were aware of this at the time the Coal Agreement was signed;
(c)the default judgment was procured by fraud because:
(i)WFTL, by Mr Wikeley, knew the Coal Agreement to be a forgery or knew that it had no legitimate claims against Kea;
(ii)there was a fraud on the Kentucky Court because the default judgment involved misleading the Kentucky Court.
[40] Based on the foregoing matters, Kea has pleaded a cause of action for tortious conspiracy on the basis that WFTL and Mr Wikeley have acted in combination with the intention of injuring Kea by unlawful means by:
(a)making claims against Kea under the Coal Agreement in circumstances where WFTL, by Mr Wikeley, knew it had no legitimate claims under that agreement;
(b)procuring the default judgment by fraud;
(c)attempting to enforce the default judgment;
(d)accepting the purported settlement sought to be effected by Mr Hussain.
[41] Kea has further pleaded that WFTL and Mr Wikeley are acting in combination with Mr Watson to further the interests of Mr Watson, as well as the interests of WFTL and Mr Wikeley. The purpose of the conspiracy is alleged to include:
(a)to cause loss to Kea by pursuing fraudulent claims under the Coal Agreement;
(b)to take control of Kea for the purpose of fraudulently obtaining its assets;
(c)assisting Mr Watson in continuing to avoid his obligations to Kea under the English judgment, including by disabling Kea from enforcing that judgment by having it placed into liquidation;
(d)illegitimately obtaining Kea’s confidential information and using that information to defraud or otherwise damage Kea;
(e)to divert Kea’s attention and resources to investigating and responding to their conduct.
[42] The relief Kea has sought on its claim for tortious conspiracy by unlawful means includes:
(a)damages in an unspecified amount for the costs which Kea has incurred by investigating and responding to the defendants’ unlawful conduct;
(b)a permanent injunction restraining the defendants from:
(i)seeking to enforce the default judgment anywhere in the world, including by issuing subpoenas, issuing interrogatories, seeking discovery or otherwise seeking disclosure of information concerning Kea;
(ii)taking any further steps to enforce or otherwise rely on the Coal Agreement.
[43] Kea has also pleaded a second cause of action against WFTL and Mr Wikeley for declarations that the default judgment was obtained by fraud and is not entitled to recognition or enforcement in New Zealand.”
Aspects of the Coal Agreement are described in the quotation from the judgment of Gault J in the New Zealand proceedings, above. In addition the primary judge said this about the Coal Agreement:
“[18] The Coal Agreement purports to be an agreement between Mr Wikeley, as trustee for the Wikeley Family Trust, and Kea. On its face, it was executed by Mr Wikeley and by Mr Dickson, Kea’s then director, on 23 October 2012 with both signatures having been witnessed by Mr Watson.
[19] The recitals record that Kea and Mr Wikeley had agreed to enter into a joint venture for the purpose of investing in coal and other energy projects identified by Mr Wikeley. They refer to various prospective investments, including a coal project in Kentucky.
[20] Under the terms of the Coal Agreement, Kea was obliged to provide a minimum capital amount of US$75 million over 8 years to the joint venture to fund the proposed investments. Those capital payments were to be made by way of 20-year loans at an interest rate of 3%. The loans were to be repaid once investments were sold or placed in listed corporate vehicles. Kea would receive 60% of the joint venture profits. No security was to be provided for the loans.
[21] Although the wording of the Coal Agreement is far from clear, it appears that Kea also agreed to pay a royalty of US$1.5 million per year for a period of 20 years to Mr Wikeley ‘irrespective as to whether production has commenced or not, or if for any reason investment has been delayed’.
[22] Under the terms of the Coal Agreement, Kea also:
(a)indemnified Mr Wikeley for any losses and lost profits if it failed to provide a minimum capital amount of $US75 million;
(b)guaranteed its performance of all its obligations under the agreement, including the capital funding commitment and the royalty payment, in all circumstances including negligence by Mr Wikeley;
(c)in the event it failed to provide the minimum capital amount, indemnified Mr Wikeley for the greater of 25% of the estimated profits from the proposed investments—in one place said to be US$375 million and in another place said to be £375 million—or 25% of the actual profits earned by third parties from the projects identified by Mr Wikeley for investment (if capable of determination).
[23] The Coal Agreement also contained a jurisdiction clause which provided:
‘The parties have agreed that the jurisdiction shall be the USA. The contract will be governed by the laws in Lexington, Kentucky and any applicable Federal law.’”
The primary judge concluded that there was “an arguable case that the Coal Agreement [was] a fabrication” and further that there had been a fraudulent conspiracy. He said:
“[189] Based on the evidence read by Kea on this application (which included all the evidence read in the New Zealand proceeding) I am satisfied there is an arguable case that the Coal Agreement is a fabrication. I note that:
(a)it seems inherently unlikely that a party in Kea’s position would agree to the terms of the Coal Agreement which impose all of the risk of the asserted joint venture arrangement on Kea;
(b)there is no evidence of the ‘financial models and analysis’ which is referred to in the background section of the Coal Agreement as having been provided to Kea for the purpose of due diligence, nor any evidence of the ‘feasibility study’ which is referred to in the background section of the Coal Agreement as having been undertaken by Kea and its (unidentified) ‘advisors’;
(c)there is evidence that:
(i)on 23 October 2012, the date on which Mr Dickson and Mr Wikeley apparently signed the Coal Agreement, as witnessed by Mr Watson, Mr Dickson was in Paris;
(ii)a detailed package of documents was prepared for a meeting in Paris on 23 October 2012 between Mr Dickson and Mr Watson, but those documents make no mention of the Coal Agreement;
(d)Mr Wikeley has given two different accounts to the Kentucky Court about how and when the Coal Agreement was signed:
(i)the complaint which commenced the Kentucky proceeding alleged (in paragraph 2 of the general allegations) that ‘On October 23, 2012, Peter Dickson, as a director of Kea, was presented with a Coal Funding and JV Investment Agreement (the “Agreement”) by Kenneth Wikeley, as Trustee for the Wikeley Family Trust, related to a coal investment in Kentucky’ and (in paragraph 5) that ‘On October 23, 2012, Peter Dickson, acting on behalf of Kea, executed the Agreement committing Kea to provide capital to fund the coal operations, to provide a percentage of gross profits, and to provide guaranteed royalties, all as outlined in the signed agreement attached as Exhibit A’;
(ii)in his affidavit filed later in the Kentucky proceeding, Mr Wikeley asserted that he signed the Coal Agreement on 26 September 2012 in New York in the presence of Mr Watson; that Mr Watson told him he would have Mr Dickson sign the agreement the following month when he was due to meet Mr Dickson in Paris; and that he was informed by Mr Watson on 23 October 2012 that Mr Dickson had signed the agreement;
(e)Mr Wikeley has not sought to explain that inconsistency;
(f)Kea has no record of the Coal Agreement or any records relating to the Coal Agreement prior to the receipt of the statutory demand in the BVI;
(g)there is no evidence of any demand having been made upon Kea to provide funding in accordance with the terms of the Coal Agreement from the time it was apparently executed on 23 October 2012 to the commencement of the Kentucky proceeding on 19 August 2021;
(h)the evidence of Sir Owen Glenn is that:
(i)he has no recollection of any discussion concerning the projects referred in the background section of the Coal Agreement;
(ii)he was not aware of Kea having entered into the Coal Agreement, or any similar agreement under which it was required to lend money to the Wikeley Family Trust or to Mr Wikeley;
(iii)he was not aware of Kea having entered into an agreement concerning the projects referred to in the background section of the Coal Agreement;
(iv)Mr Watson never mentioned the Coal Agreement, or any similar agreement, to him and did not mention any requirement for payments from Kea under such agreement;
(v)he first became aware of the Coal Agreement, the alleged joint venture and the default judgment on 29 June 2022, after Kea’s BVI agent provided a copy of the statutory demand issued in the BVI by WFTL;
(i)the evidence of Mr Andrew Munro, a representative of a professional trustee appointed in February 2013 to take control of the assets of the Corona Trust, including assets held by Kea, in proceedings in Nevis, is that:
(i)an order was made in the Nevis proceeding that required Mr Dickson, among others, to provide to the professional trustee all documents relating to companies which included Kea;
(ii)if Kea had entered into the Coal Agreement before the appointment of the professional trustee in Nevis, Mr Dickson would have been obliged to disclose it under the order in the Nevis proceeding, but he did not provide it;
(iii)Mr Munro acted as the representative of a corporate director of Kea appointed in March 2013 and, in that capacity, dealt with Mr Watson on behalf of Kea;
(iv)Mr Watson never mentioned the Coal Agreement, or any similar arrangement to him and did not mention any requirement for payments from Kea under such agreement;
(v)Mr Munro was not aware of Kea having entered into the Coal Agreement, or any similar agreement or joint venture involving the Wikeley Family Trust or Mr Wikeley or relating to the projects referred to in the Background section of the Coal Agreement;
(vi)Mr Munro first became aware of the Coal Agreement after WFTL had commenced the Kentucky proceeding.
[190] I am also satisfied that Kea has established an arguable case that Mr Wikeley has engaged in a tortious conspiracy against Kea. That action would require that the following elements be proved:
(a)an agreement between, or combination of, two or more persons;
(b)the commission of or threat of an unlawful act;
(c)an intention to injure the plaintiff; and
(d)damage resulting from the threats or unlawful acts.
[191] If the evidence adduced by Kea is ultimately accepted then it will have established:
(a)Mr Wikeley acted in combination with at least Mr Watson in fabricating the Coal Agreement and in the prosecution of the Kentucky proceeding based upon that agreement;
(b)those parties’ use of the fabricated document to procure a financial benefit under the default judgment to which they are not entitled amounted to the use of unlawful means;
(c)those parties’ attempts to enforce the default judgment was directed to Kea, and it must be inferred intended to injure Kea;
(d)Kea has suffered loss in seeking to respond to the fraudulent conspiracy, including the costs of seeking to have the default judgment set aside and to restrain the enforcement of that judgment.” (footnotes omitted).
Ground of appeal 1(f): Strength of Prima Facie Case
It is convenient to deal with this part of the appeal ground first. By this ground the appellant contended that the primary judge erred in applying the test established by the High Court in Australian Broadcasting Corporation v O’Neill.[6]The judgment of Gummow and Hayne JJ in O’Neill’s case referred to the earlier High Court authority of Beecham Group Ltd v Bristol Laboratories Pty Ltd[7] to the effect that there are two main enquiries when a court is asked to make an interlocutory injunction:
“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” – [65].
[6](2006) 227 CLR 57.
[7](1968) 118 CLR 618, 622–623.
Gummow and Hayne JJ said of the first main enquiry:
“By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’” – [65].
Gleeson CJ and Crennan J delivered a separate judgment in O’Neill. They referred to a judgment of Doyle CJ in a South Australian case of Jakudo Pty Ltd v South Australian Telecasters Ltd.[8] They said:
“As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed.” – [19].
[8](1997) 69 SASR 440, 442–443.
In both parts of the judgments just quoted, it is apparent that whether or not the phrase “a serious question to be tried” is used, or the phrase “a prima facie case” is used does not matter. As Gummow and Hayne JJ said in O’Neill:
“When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase ‘serious question’ if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.” – [70].
The appellant criticised the language of the primary judge at [232] of the judgment below:
“[232] Having concluded that Kea has established an arguable case that the Coal Agreement is a fabrication (see [189] above) and that Mr Wikeley has engaged in a tortious conspiracy (see [190] to [191] above), I am also satisfied that there is a serious question to be tried that a permanent anti-enforcement injunction would be granted in the circumstances of the present proceeding. I do not consider that the potential defences referred to in [139] above preclude such a conclusion.” (my underlining).
In that paragraph the primary judge referred to [189] of his judgment. That began with the sentence, “Based on the evidence read by Kea on this application (which included all the evidence read in the New Zealand proceeding) I am satisfied there is an arguable case that the Coal Agreement is a fabrication.” He used similar language at [190], “I am also satisfied that Kea has established an arguable case that Mr Wikeley has engaged in a tortious conspiracy against Kea.” (my underlining in both quotes). Both these passages from the judgment below are set out above. Both introductory sentences are followed by a summary of the evidence led by the respondent below, analysed so as to give the primary judge’s view of it. While in paragraphs [189], [190], and [232] the primary judge uses the word “arguable” and in [232] uses the phrase “a serious question to be tried”, it is evident from the analysis at [189] and [190] that the primary judge found the evidence led by the respondent below to be compelling.
It is clear that the primary judge evaluated the evidence before him having regard to the seriousness of the injunction he was asked to make, in what he expressly recognised was an extraordinary application. It is quite clear that the primary judge directed his mind to “the requisite strength of the probability of ultimate success”, to use the words of Gummow and Hayne JJ in O’Neill – [71]. It is plain from the matters analysed at [189] and [190], that the judge regarded the case the respondent demonstrated as strong. In my view, he was right to do so when regard is had to the evidence which was before him and his analysis of it. There is nothing in this point.
Associated with it was the assertion that at [241] below there was another instance of the same error by the primary judge. This paragraph dealt with the primary judge’s conclusion on a separate point. The point is itself the subject of appeal, see [44] below. Below, it was argued on behalf of Mr Wikeley that so long as the Kentucky judgment remained in force, Kea was prevented from contending that it was procured by fraud. A number of cases were relied on by the appellant below in support of this proposition. The judge was not convinced, and [241] expresses his conclusions in relation to these authorities. He said:
“[241] I am not persuaded, however, that these authorities compel the conclusion that Kea’s claim of tortious conspiracy cannot support a permanent anti-enforcement judgment in circumstances where the default judgment has not been set aside in Kentucky. The grant of anti-enforcement injunctions in Ellerman Lines and Bank St Petersburg, discussed above, suggests otherwise. On this application I do not need to reach a concluded view about this. It is sufficient that I am satisfied that the question is arguable.” (my underlining).
The primary judge was expressing his view on the question of law raised by the appellant. In circumstances where it would be (presumably) central to the case the appellant sought to make on the hearing for a permanent injunction in New Zealand, fairly to the appellant, the judge below did not decide it, but expressed his view that he did not see sufficient strength in the argument to refrain from making the orders he did. There is nothing in this point.
Before leaving the question of the primary judge’s application of the serious question, or prima facie case, test, it is convenient to deal with an argument raised on behalf of the appellant in written submissions in reply. At paragraph 27 of this outline the appellant cited a passage at [65] of O’Neill saying that, in order to satisfy the first main enquiry on an application for an interlocutory injunction, the court was required to make an assessment of the strength of the case shown by the applicant, having regard to the nature of the rights the applicant asserted and the “practical consequences likely to flow from the order” which was sought on the application. At paragraphs 3 and 4 of this outline the appellant contended that, because the Kentucky judgment had not been registered in Australia or New Zealand, no property of the respondent was at risk in those jurisdictions. Furthermore, that the respondent had not deposed to where its property in the United States of America was located. It was said that all WFTL had done by issuing subpoenas out of the Kentucky court, was seek disclosure in “multiple US states to discover the whereabouts of Kea’s assets”. It was submitted that in these circumstances the primary judge could not have been satisfied that the respondent’s assets were at risk.
During the oral hearing of this appeal, senior counsel for the respondent described some submissions made on behalf of the appellant as having an air of unreality about them. I think the description applies very well to this submission. The “practical consequences likely to flow” from a refusal to make the injunction sought by the respondent would be enormous, and likely irretrievable if there is in fact a fraud, as Kea alleges. In circumstances where the respondent showed a strong prima facie case that it was a victim of a fraudulent conspiracy, this was a very strong matter weighing against the appellant below.
Lastly, there was an oral submission made by the appellant on this appeal that the judge had misunderstood or misapplied the first of the main enquiries referred to in O’Neill. It was said that the “status quo” in this case was that the appellant was entitled to enforce a judgment entered in Kentucky. I reject this submission. In circumstances where Kea asserts that judgment to have been obtained as part of a fraudulent conspiracy against it, the status quo, relevantly, is that the Kentucky judgment remains unexecuted. To allow execution would be to cause major and perhaps irreparable financial harm to the respondent.
Grounds 1(a) and (b) are related. It was said that the Queensland court could not consider whether or not the Kentucky judgment was obtained by fraud where the courts of Kentucky had decided that this contention provided no basis to set aside the Kentucky judgment.
The appellant submitted, “the claim for conspiracy was founded upon the proposition that the appellant and others had procured the Kentucky Judgment by fraud.” That was not an accurate statement of the whole ambit of the tortious conspiracy claim; obtaining the Kentucky judgment was part of the claim. The appellant then submitted that it was not open to Kea to make a claim that the Kentucky judgment was procured by fraud while the Kentucky judgment stood. He submitted “the true principle is that a person may not bring ‘any civil proceedings … which impugn the judgment’ until a judgment is rescinded or set aside.”
The appellant primarily relied upon the case of Cabassi v Vila[9] for this proposition. The facts of that case are stated in the judgment of Williams J:
“The material facts are as follows:–On 8th January 1933, the appellant's jaw was fractured. The injury was the result either of the appellant having jumped out of a window, or of Ferrando having assaulted her. She sued Ferrando for damages for assault in the Magistrates Court. On 10th May 1934, the magistrate found that her injury was due to the first of these two causes and gave judgment in favour of the defendant. She appealed to the Supreme Court of Queensland at Townsville, which, on 23rd July 1934, dismissed the appeal.
At the hearing before the magistrate oral evidence was given for the defendant by the defendant himself and by Aracil, Vila and one Clement. The depositions of these witnesses were used on the appeal to the Supreme Court.
In June 1938, the appellant commenced an action in the Supreme Court of Queensland in respect of which the present appeal has been brought, the defendants being Ferrando, Aracil and Vila. The defendant Vila demurred to the statement of claim on the ground that the facts alleged therein did not constitute any cause of action against him.” – pp 145-146.
[9](1940) 64 CLR 130.
The demurrer was successful and Cabassi appealed to the High Court. Starke and McTiernan JJ dismissed the appeal on the sole basis that there was no cause of action against a witness for what the witness said in evidence in the course of a judicial proceeding. These judges put that rule on the basis of public policy to protect judicial proceedings. Rich ACJ said that he concurred in the judgment of Williams J, but stated his own opinion. That opinion was also based on the rule that no action lay against a witness for giving false testimony. He put the rule on the basis of public policy concerning the administration of justice, but also on the basis that, “a proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way.” – p 139. In fact, as the High Court was only dealing with the demurrer between Cabassi and Vila, the parties were not the same.
Williams J also thought that the claim against Vila was demurrable on the basis of the rule that a witness cannot be sued. However, he seems to have put his judgment on the basis of another rule, namely that “When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando. Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. … the other two defendants could not be in a worse position than Ferrando.” – p 148. It was this particular part of Williams J’s judgment which the appellant relied upon. That is, the appellant relied upon reasoning which was not majority reasoning in the case and was an opinion on the very question which both Starke J (p 141) and McTiernan J (p 145) expressly refused to decide.
In any event, whatever the rules regarding collateral challenge in domestic law, and however extraordinary circumstances must be to grant an anti-enforcement injunction, none of the authority put forward by the appellant deals with cases concerning private international law or comes to terms with the proposition put forward by the respondent on this appeal that the distinction between a domestic judgment and a foreign judgment was that a foreign judgment will not be recognised as valid in Australia unless recognised according to Australian rules of private international law, and in particular will not be recognised where it has been procured by fraud. – Abouloff v Oppenheimer & Co.[10] These grounds of appeal must fail.
[10](1882) 10 QBD 295.
Grounds 1(c) and (d)
These grounds of appeal are to the effect that the primary judge erred in making an anti-enforcement injunction which operated within the United States of America, and in particular Kentucky, where there was an extant judgment between the parties in the appellant’s favour. This was said to trespass impermissibly on the sovereignty of Kentucky, breach comity, and mistakenly do so on the basis that there was sufficient reason because of the fraud allegations made by Kea.
These grounds seem directed to order 3 made by the primary judge on 21 April 2023, which order he refused to vacate in his 4 October 2023 determination. Order 3 of the 21 April 2023 orders prohibited Mr Wikeley from: taking steps to appoint an additional or replacement trustee of the Wikeley Family Trust; progressing the Kentucky proceedings; taking any step to enforce or otherwise pursue rights under the Coal Agreement; assigning of the Coal Agreement to Wikeley Inc; assigning the Kentucky judgment to Wikeley Inc, or pursuing the motion to substitute Wikeley Inc for WFTL in the Kentucky proceedings. Mr Wikeley was ordered to cause Wikeley Inc to withdraw, adjourn or seek to discontinue current interlocutory steps in the Kentucky proceedings for substitution, discovery, and an anti-suit injunction against Kea.
Essentially by these grounds of appeal the appellant seeks to re‑argue grounds advanced before the primary judge. The primary judge disposed of them in these terms:
“[233] Mr Wikeley submitted that the declaration sought by Kea in the New Zealand proceeding – that the default judgment was procured by fraud – does not support the claim for an anti-enforcement injunction. Having regard to the decisions in Ellerman Lines and Bank St Petersburg discussed above, it is arguable that Kea’s claim for this declaration can support an anti-enforcement injunction which operates outside the local forum. I do not accept that, in the circumstances of this case, injunctive relief could only ever be directed to attempts to enforce the default judgment in Australia (or in New Zealand in respect of the interim relief granted in the New Zealand proceeding).
…
[241] I am not persuaded, however, that these authorities compel the conclusion that Kea’s claim of tortious conspiracy cannot support a permanent anti-enforcement judgment in circumstances where the default judgment has not been set aside in Kentucky. The grant of anti-enforcement injunctions in Ellerman Lines and Bank St Petersburg, discussed above, suggests otherwise. On this application I do not need to reach a concluded view about this. It is sufficient that I am satisfied that the question is arguable.”
On this appeal the appellant cited the English Court of Appeal decision SAS Institute Inc v World Programming Ltd[11] for the proposition that “an anti-enforcement injunction operating in a foreign jurisdiction accordingly involves an exorbitant exercise of jurisdiction”. The case is not authority for the proposition that such an injunction can never be made. To the contrary, the case recognises that there is jurisdiction to grant an anti-enforcement injunction, although the circumstances for doing so will not often arise. It discusses Ellerman Lines Ltd v Read[12] and Bank St Petersburg OJSC v Arkhangelsky[13] as cases where such an injunction was granted, in Ellerman Lines because the judgment abroad had been obtained by fraud, and in Bank St Petersburg where enforcement of the judgment was contrary to agreement of the judgment creditor – [94]. SAS cites Ecobank Transnational Inc v Tanoh[14] as recognising these two exceptional cases.
[11][2020] EWCA Civ 599.
[12][1928] 2 KB 144.
[13][2014] EWCA Civ 593; [2014] 1 WLR 4360.
[14][2015] EWCA Civ 1309; [2016] 1 WLR 2231, [118]-[119].
Ground 1(d)(v) asserted that the Supreme Court of Queensland did not have sufficient interest to make an anti-enforcement injunction which operated in Kentucky. No authority is cited for that proposition, and the argument is not developed in any way. The judge below found as follows in relation to this:
“[193] It is true that Kea’s proceeding against Mr Wikeley does not have as strong a connection to the local jurisdiction as existed in Ellerman Lines (where the defendant was a British subject) or Bank St Petersburg (where the parties entered into an exclusive jurisdiction agreement to have their dispute resolved by the English courts). Nevertheless, I consider that there is sufficient connection to Queensland in circumstances where Mr Wikeley has taken steps to secure the benefits of the default judgment while he has resided in this jurisdiction.
[194] There is evidence that, while he resided in Queensland, Mr Wikeley swore an affidavit which was filed in the Kentucky proceeding in opposition to Kea’s motion to set aside the default judgment. He was also in Queensland when he executed the purported assignment of the default judgment from WFTL to Wikeley Inc, apparently in contravention of the orders made in the New Zealand proceeding.
[195] The evidence is not as clear as to whether Mr Wikeley was in Queensland at earlier times when he took relevant steps.
[196] For example, a company extract for WFTL, prepared on 26 October 2022 records:[15]
[15]CFI 7 and 13 to 32 (pages 1601–2 of exhibit MTD-01 to the affidavit of Mathew Thomas Deighton filed 12 April 2023).
(a)the incorporation date of WFTL as 23 July 2021;
(b)the sole director and shareholder of WFTL as being Mr Wikeley;
(c)Mr Wikeley’s address as being 22 Bora Place, Ningi, Queensland.
[197] It is not clear, however, whether Mr Wikeley was residing at that address when he caused WFTL to be incorporated and for it to replace him as the trustee of the Wikeley Family Trust.
[198] Mr Wikeley’s own evidence as to his residence at different times is expressed in vague terms.
[199] In the affidavit he filed in the New Zealand proceeding on 23 November 2022 (see [122] to [125] above), he stated that: at that time he was living at his sister’s house at Ningi; his permanent home is in Mykolaiv, Ukraine; he had been unable to return to Ukraine because of the COVID-19 pandemic and the war.
[200] In an affidavit filed in this proceeding on 26 April 2023, Mr Wikeley stated: until 2019, when COVID-19 prevented international travel, his address was Apartment 49, 8 Levineska Street, Nikolaev, Ukraine; he resided permanently in Ukraine between 2007 and 2013; he then resided between Ukraine, the United States and Australia until 2019 when COVID-19 caused borders in Australia and internationally to close; since 2019 he has been diagnosed with a number of medical conditions which have prevented him from travelling internationally.
[201] Although Mr Wikeley does not say so in terms, it is at least arguable based on this evidence that he has resided at the Ningi address from late 2019 or early 2020 when borders in Australia and internationally were closed due to COVID-19. If that is established then Mr Wikeley will have been present in Queensland when he took all relevant steps in seeking to obtain the benefit of the default judgment, namely:
(a)the incorporation of WFTL and its substitution as trustee of the Wikeley Family Trust less than a month before the commencement of the Kentucky proceeding;
(b)providing instructions to WFTL’s lawyers in Kentucky (as WFTL’s sole director) to commence the Kentucky proceeding;
(c)providing instructions for the Kentucky proceeding to be served on Kea’s registered office in the BVI;
(d)providing instructions to WFTL’s lawyers in Kentucky for entry of the default judgment;
(e)providing instructions to WFTL’s lawyers in the BVI to serve the statutory demand on Kea in reliance upon the default judgment;
(f)providing instructions to WFTL’s lawyers in Kentucky to resist Kea’s efforts to have the default judgment set aside;
(g)providing instructions to WFTL’s lawyers in various jurisdictions to apply for the issue of subpoenas to financial institutions with the aim of identifying assets from which the default judgment might be satisfied;
(h)executing the assignment of the default judgment from WFTL to Wikeley Inc.
[202] On this basis, if Kea were to ultimately succeed in its claim that the default judgment was obtained in reliance upon a fabricated agreement, then Mr Wikeley would properly be described as a person subject to the jurisdiction of this court who, in obtaining the default judgment, has acted in a way that violates the principles of equity and conscience.[16] That is sufficient in my view to satisfy the requirement that the court not only have personal jurisdiction over Mr Wikeley, but that it have subject matter jurisdiction over the issues raised by Kea’s proceeding.
[203] For these reasons, I am not persuaded that this court is a clearly inappropriate forum by reasons of considerations of comity.”
[16]Ellerman Lines, 155.
Ground 2 was peculiar to evidentiary matters before the primary judge and would not arise in another case. In circumstances where I would dismiss the appeal, there is no need to separately consider it.
Ground 3 has already been determined – [99] above.
Ground 4 was that the primary judge took an unduly restrictive view of the cases concerning when, as a matter of private international law, a court will grant relief including an anti-enforcement injunction in respect of a foreign default judgment which has been obtained by fraud. The cases dealing with these topics are few, and necessarily each focused on their own facts. Where I am content that the primary judge was correct to grant the relief he did, it is unnecessary, and undesirable, to consider this point on what must necessarily be a hypothetical basis.
Disposition
Although the notice of appeal was expressed to be in relation to costs orders made by the primary judge on 27 October 2023, no particular ground of appeal related to this, and no separate arguments were made.
The appeal must be dismissed with costs. The notice of contention should be dismissed. I would not make any separate order for costs in relation to the notice of contention. The matters raised in it were very closely connected to matters raised on the appeal itself and I cannot see that any substantial time or cost was involved in making or responding to the contentions advanced by the respondent.
WILSON J: I agree with the reasons and orders of Dalton JA.
CROWLEY J: I agree with Dalton JA.
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