Wikeley v Kea Investments Ltd

In Wikeley v Kea Investments Ltd, the respondent, Kea Investments Pty Ltd, sought an order for security for costs from the applicant, Mr Kenneth Wikeley, in relation to his application for leave to appeal a decision of the Court in Wikeley v Kea Investments Ltd [2024] FCA 155 (Primary Judgment). The Primary Judgment ordered Mr Wikeley to provide security for costs, in the sum of $120,000, of the proceeding. In that proceeding, Mr Wikeley sought to set aside three judgments of the High Court of New Zealand registered in Australia by Kea under the Trans-Tasman Proceedings Act 2010 (Cth). The Court also ordered that if security for costs was not provided by Mr Wikeley, that proceeding would be dismissed. Mr Wikeley did not provide the security and that proceeding was dismissed on 5 March 2024.

The Court considered the relevant legislative framework and principles, including the broad discretionary power of the Court to make an order for security for costs. The Court then addressed the relevant factors, including the promptness of the application, the applicant's status as a natural person, and the risk of non-compliance with a costs order. The Court found that the application was brought promptly, that Mr Wikeley's status as a natural person was accompanied by other factors such as a lack of prospects of success, residence outside of Australia, and the amount ordered not being oppressive, and that there was a high risk that Mr Wikeley would not comply with an adverse costs order if he was unsuccessful in the proceedings. Based on these considerations, the Court ordered that Mr Wikeley provide security for the respondent’s costs of his application for leave to appeal in the amount of $30,000 within 21 days of the date of this order. If security is not provided in accordance with the order, the proceeding would be dismissed without further order, and the applicant is to pay the respondent’s costs of the proceeding and this application on the standard basis.