Wikeley v Kea Investments Ltd - [2024] QCA 201

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 2023

DIVISION:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCA 201
Decision Date: 29 October 2024

CaseChat Overview and Summary

In the case of Wikeley v Kea Investments Ltd, the dispute centred around the validity and enforcement of a default judgment obtained by the appellant against the respondent in the Fayette Circuit Court in Kentucky. The respondent claimed that the Coal Agreement, which formed the basis of the judgment, was fraudulent. The respondent had secured interim and interlocutory injunctive orders in the High Court of New Zealand to prevent the appellant from enforcing the Kentucky judgment. The appellant sought to circumvent these New Zealand orders, prompting the primary judge to issue anti-enforcement restraining orders under the Trans-Tasman Proceedings Act 2010 (Cth) in support of the New Zealand proceeding. The primary judge adjusted the existing orders but otherwise dismissed the appellant's application to set aside the court orders.

The legal issues included whether the primary judge had misapplied the test for establishing a prima facie case, whether fraud was an exception to the principles of comity justifying an anti-enforcement injunction, whether there was a serious question to be tried, and whether the balance of convenience favoured the issuance of the injunction. Additionally, the court examined whether the Queensland proceeding was oppressive or vexatious and if the Supreme Court of Queensland was an appropriate forum given that the appellant had incorporated a foreign registered corporation in Kentucky. The appellant also challenged the no-departure and passport orders, arguing that the respondent had failed to disclose material information at the ex parte hearing.

The court found that the primary judge did not misapply the prima facie case test and that fraud was indeed an exception to the principles of comity justifying an anti-enforcement injunction. It was also determined that there was a serious question to be tried and that the balance of convenience favoured the issuance of the injunction. The court found that the Queensland proceeding was not oppressive or vexatious and that the Supreme Court of Queensland was an appropriate forum. The no-departure and passport orders were upheld as the appellant had not demonstrated that the respondent's non-disclosures warranted their discharge.

The appeal was dismissed with costs, and the notice of contention was dismissed.

Orders

Orders of the court

1. The appeal is dismissed with costs.

2. The notice of contention is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2023
DIVISION:	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…