Gibson v Wikeley
[2025] NZHC 2762
•18 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-31 [2025] NZHC 2762
UNDERthe Companies Act 1993 and the Trusts Act 2019
IN THE MATTER of Wikeley Family Trustee Limited (in
interim liquidation)
BETWEENBRENDON JAMES GIBSON and NEALE JACKSON
First Applicants Continued …
AND KENNETH DAVID WIKELEY
First Respondent Continued …
Hearing: 18 July 2025
Appearances: M D Arthur and J Marcetic for the Applicants
First Respondent in person (via VMR)
No appearance for the Second or Third Respondents MC Harris and JLW Wass for Kea Investments Ltd
F C Monteiro and J L Schwarcz for MK Solicitors LP
Judgment: 18 July 2025
Reasons: 22 September 2025
JUDGMENT OF GAULT J
(Application for directions)
This judgment was delivered by me on 22 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
GIBSON and JACKSON v WIKELEY [2025] NZHC 2762 [18 July 2025]
Continued …
BETWEEN WIKELEY FAMILY TRUSTEE LIMITED
(in interim liquidation) Second Applicant
AND WILLIAM WIKELEY
Second Respondent
OLIVER WIKELEY
Third Respondent
[1] At the conclusion of the hearing of this application for directions on 18 July 2025, I made orders with reasons to follow.
[2]The orders were:
1directing that Brendon James Gibson and Neale Jackson, as interim liquidators of Wikeley Family Trustee Ltd (in interim liquidation) (WFTL), and WFTL as trustee of the Wikeley Family Trust, may properly and justifiably refrain from seeking to enforce or act on, anywhere in the world, the default judgment obtained in January 2022 in the Commonwealth of Kentucky Circuit Court by WFTL against Kea Investments Ltd;
2reserving leave for the parties to seek further orders or directions from the Court if there is a change of circumstances; and
3directing the parties to confer and file a memorandum or memoranda in respect of timetabling the process for determining the remainder of the Application, and to attend any subsequent conference for the same purpose.
[3]These are my reasons.
Background
[4] This proceeding is an originating application for directions by the interim liquidators of WFTL. It forms part of a wider dispute concerning the January 2022 default judgment in the Commonwealth of Kentucky in the proceeding Wikeley Family Trustee Ltd v Kea Investments Ltd (the Default Judgment).1 It is unnecessary to set out the wider background in detail. It is recorded in earlier judgments of this Court and the Court of Appeal in proceedings brought by Kea Investments Ltd (Kea).2
[5] It suffices to mention four aspects of Kea’s related proceedings. First, following initial judgments granting interim relief and dismissing a protest to jurisdiction, the interim liquidators were appointed on 6 April 2023 when
1 Fayette Circuit Court, 9th Division, Civil Action No. 21-Cl-02508.
2 Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881; Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 2407; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3260; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3532; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2024] NZHC 163, [2024] NZAR 338; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2024] NZHC 1251; Wikeley v Kea Investments Ltd [2024] NZCA 58; Wikeley v Kea Investments Ltd [2024] NZCA 609, [2024] 3 NZLR 901; and Wikeley v Kea Investments Ltd [2024] NZCA 686.
Mr Kenneth Wikeley took steps which breached the interim orders.3 These steps included the purported assignment of the Default Judgment to a newly incorporated Kentucky company, Wikeley Inc.
[6] Secondly, this Court determined on 17 November 2023 that the Default Judgment was obtained by fraud and that Mr Wikeley combined with WFTL (and Mr Watson) in order to procure the Default Judgment, and they also combined with others to defend the Default Judgment or otherwise harm Kea.4 The relief granted included permanent anti-suit and anti-enforcement injunctions.
[7] Thirdly, on 15 May 2024, the United States Bankruptcy Court granted recognition to this Court’s determinations that Mr Wikeley’s purported assignments of the Default Judgment (and the so-called Coal Agreement on which it was based) to Wikeley Inc were void. The recognition order was granted expressly “to assist the New Zealand High Court with enforcement of its orders”. The US Bankruptcy Court was satisfied that the process by which this Court reached those determinations was fair and impartial, and described the findings of fraud as “hard to ignore”.
[8] Fourthly, on 21 November 2024, the Court of Appeal upheld this Court’s fraud and conspiracy findings. The Court of Appeal discharged the permanent anti-suit and anti-enforcement injunctions on comity grounds given Kea had a pending appeal in Kentucky,5 but that order was to lie in Court and not become operative for a period of 20 working days from delivery of the judgment. The Court reserved to Kea the right to reapply to the High Court for further injunctive relief if required and reserved to the interim liquidators the right to apply to the High Court for any further order considered appropriate in the context of the interim liquidation.6
3 This was recently confirmed by the Supreme Court in Wikeley v Kea Investments Ltd [2025] NZSC 76 at [7].
4 Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3260. The interim liquidators took a neutral position on whether the Default Judgement was obtained by fraud.
5 Proceedings in the Kentucky Court have been stayed since 2023 pursuant to an order of the US Bankruptcy Court, which has recognised the proceeding in this Court in which the interim liquidators were appointed as a “foreign main proceeding” under the provisions of the US Code implementing the UNCITRAL Model Law on Cross-Border Insolvency. The recognition has the effect of invoking an automatic bankruptcy stay. Pursuant to the stay, Kea’s appeal against the Circuit Court’s refusal to set aside the Default Judgment has been stayed for successive periods of 90 days by the Court of Appeals.
6 Wikeley v Kea Investments Ltd [2024] NZCA 609, [2024] 3 NZLR 901 at [211].
[9] Of particular relevance, the Court of Appeal referenced two matters.7 The first, which the Court noted “with concern”, was the letter sent by Kenneth, Oliver and William Wikeley to the interim liquidators on 21 May 2024, the day after the hearing of the appeal, threatening them with consequences if they did not seek “with urgency” to recover the amount of the Default Judgment as a debt due.8 Sending that letter was a breach of the injunctions in place at the time. The second was “meddling by Mr Wikeley with the constitutional arrangements of the [Wikeley Family Trust (WFT)]”.9 This “history”, the Court noted, “shows that [Mr Wikeley] considers himself uninhibited in his endeavours to defeat the orders of the New Zealand courts”.10 More generally, Mr Wikeley has not cooperated with or been forthcoming to the interim liquidators, which required them to engage US counsel and seek recognition of their appointment in the US.
[10] Despite the Court of Appeal’s upholding of the fraud and conspiracy determinations, and the continuance of the injunctions against him, Mr Wikeley continued his attempts to enforce the Default Judgment. On 2 December 2024, he wrote to the interim liquidators (for himself, William and Oliver Wikeley) threatening legal, disciplinary and criminal sanctions if they moved to discharge or undermine the Default Judgment.
[11] In response to Mr Wikeley’s ongoing pursuit of his conspiracy against Kea, and particularly his demands, in breach of the injunctions that remained in force against him, that the interim liquidators preserve, uphold, enforce and seek to extract value from the Default Judgment, Kea commenced a new proceeding on 10 December 2024 against Mr Wikeley and WFTL together with an application for interim relief. Kea also applied to the Court of Appeal for a stay pending leave to appeal to the Supreme Court. The Court of Appeal granted a stay on 19 December 2024.11
7 See also the summary in my further recent judgment in Kea’s proceeding: Kea Investments Ltd v Wikeley [2025] NZHC 2387 at [12].
8 Wikeley v Kea Investments Ltd [2024] NZCA 609, [2024] 3 NZLR 901 at [198].
9 At [208].
10 At [208].
11 Wikeley v Kea Investments Ltd [2024] NZCA 686 at [19].
Originating application for directions
[12] On 20 December 2024, the interim liquidators filed this originating application for directions. The substantive directions sought in the originating application were as follows:
1.1directions requiring the Interim Liquidators, and WFTL as trustee of the Wikeley Family Trust, to refrain from seeking to:
(a)enforce or act on, anywhere in the world, the default judgment obtained in January 2022 in the Commonwealth of Kentucky Circuit Court by WFTL against Kea Investments Limited (Kea) (Default Judgment);
(b)have the Default Judgment set aside, discharged or otherwise prejudiced in any other way, anywhere in the world, pending further order of the Court;
1.2following the final determination by the Supreme Court on whether the Default Judgment was obtained by fraud (whether by hearing and determining an appeal, or by declining leave to appeal) (Final Determination), further directions to the Interim Liquidators, and WFTL as trustee of the Wikeley Family Trust, in relation to the Default Judgment, to be specified by amendment to this application, following the Final Determination;
[13] The fixture on 18 July 2025 was allocated to address only order 1.1 in the originating application, pending the Supreme Court’s leave decision.
Supreme Court’s leave decisions
[14] On 4 July 2025, the Supreme Court granted Kea’s application to appeal against the Court of Appeal’s discharge of the injunctions ordered in this Court’s formal proof judgments and extended the stay of the Court of Appeal’s discharge of the negative injunctions.12
[15] In a separate judgment delivered the same day, the Supreme Court dismissed Mr Wikeley’s application for leave to appeal against the Court of Appeal’s dismissal of his appeal in all other respects.13 As a result, the determinations of fraud and conspiracy against WFTL, Mr Wikeley and the other defendants are final – including
12 Kea Investments Ltd v Wikeley [2025] NZSC 75.
13 Wikeley v Kea Investments Ltd [2025] NZSC 76.
the factual determinations that there was and is no claim against Kea under the Coal Agreement, and that the Default Judgment was obtained by fraud.
Amended originating application for directions
[16] On 7 July 2025, in response to the Supreme Court’s leave judgments, the interim liquidators amended their originating application to seek:
1.1directions that the Interim Liquidators, and WFTL as trustee of the Wikeley Family Trust, may properly and justifiably:
(a)refrain from seeking to enforce or act on, anywhere in the world, the default judgment obtained in January 2022 in the Commonwealth of Kentucky Circuit Court by WFTL against Kea Investments Limited (Kea) (Default Judgment);
(b)consent and otherwise take all steps necessary to procure the discharge of the Default Judgment;
1.2leave to apply for any further relief necessary to give effect to these directions;
[17] The interim liquidators served their application and their amended application on Kenneth, William, Oliver and Gemma Wikeley in accordance with orders as to service (as well as on known creditors of WFTL, including Kea). William and Oliver Wikeley did not respond to the application. Gemma Wikeley emailed the interim liquidators’ solicitors on 13 July 2025 saying she was not a beneficiary of the Trust.
Adjournment request
[18] In the week before the 18 July 2025 fixture, MK Solicitors (an interested party creditor of WFTL) and Mr Wikeley sought to vacate/adjourn the fixture essentially on the basis of the Supreme Court’s decisions dated 4 July 2025 and the amended originating application. I indicated by minute of 17 July 2025 that I was not prepared to vacate the fixture on the papers. The fixture was allocated to address only order 1.1 in the originating application. However, I said that I would hear from the parties at the hearing in relation to the grounds raised, in particular the implications of the Supreme Court’s decisions and the amended originating application.
[19] At the commencement of the hearing on 18 July 2025, Mr Arthur, for the interim liquidators, referred to an updating affidavit of Ms Fisher filed that morning. It indicated that counsel had received an email that morning from Mr McCloud in Kentucky representing the interests of the Wikeley Family Trust beneficiaries, Oliver, William and Gemma Wikeley.14 The email advised the interim liquidators’ solicitors to take notice that the Fayette Circuit Court Kentucky had made an order, which Mr McCloud attached and said was already in effect. That order, made on the ex parte motion of William, Oliver and Gemma Wikeley, appointed a “Special Fiduciary” over the Kentucky property of WFTL, that is the Default Judgment.
[20] Accordingly, Mr Arthur indicated the applicants would only seek part of the relief sought in the amended originating application. He accepted that part of the application (paragraph 1.1(b)) should be adjourned. Given the appointment of a Special Fiduciary, the applicants needed time to consider the order, which Mr Arthur submitted was extraordinary and purportedly final.
[21] Mr Arthur explained that the amendment in the first paragraph of 1.1 of the originating application was merely changing the form of the direction from an injunctive order to a permissive order. The amendment in the second paragraph proposed to move to the second phase given the Supreme Court’s decision. He said this was now overtaken by that morning’s Kentucky development.
[22] Ms Monteiro, for MK Solicitors, acknowledged that a short timetable was appropriate to address the order sought in paragraph 1.1(b) of the originating application. However, she pursued adjournment of the hearing even in relation to direction 1.1(a) until the Supreme Court had determined Kea’s appeal concerning the anti-suit injunction. She noted that the Supreme Court was being asked to reinstate those orders and submitted the application for directions was somehow pre-empting that appeal and the interim liquidators did not need protection at this point. She submitted it was not appropriate to bind the interim liquidators and go beyond the order sought in the Supreme Court. She submitted this Court should hold over even
14 The involvement of Gemma Wikeley was inconsistent with her earlier statement to the interim liquidators’ solicitors that she is not a beneficiary. Also, Mr McCloud’s involvement was surprising as he had previously given an affidavit as an expert witness on behalf of MK Solicitors.
determining the application in respect of direction 1.1(a) until the delivery of the Supreme Court decision and liquidators, rather than interim liquidators, have been appointed.
[23]Mr Wikeley supported MK Solicitors’ request to adjourn.
[24] Mr Harris, for Kea, submitted there were no grounds for adjournment and that the grounds raised were really grounds for opposing the order sought. He submitted that the Court of Appeal judgment discharging the permanent injunction was premised on there being steps available to Kea to set aside the Default Judgment in Kentucky, and that the Court of Appeal recognised there may be a need for further orders here. He submitted the interim liquidators were doing just what the Court of Appeal contemplated. He also submitted the position being taken by MK Solicitors in their notice of opposition dated 5 March 2025 was extraordinary, in stating: “There is now nothing to prevent the liquidators of WFTL from defending Kea’s appeal against the Kentucky Default Judgment and enforcing that judgment”. He submitted the Supreme Court were not determining that issue. Finally, he submitted that the Kentucky order overnight added to the need for directions now.
[25] I declined to adjourn the hearing in respect of direction 1.1(a), with reasons to follow.
[26] Those reasons are that, while adjournment was appropriate in respect of direction 1.1(b) sought in the amended application to allow all parties further time to address the direction now sought, in relation to direction 1.1(a) there was no suggestion those opposing needed more time to address that direction sought. Rather, the grounds for adjournment were in essence grounds for opposing the order, at least prior to the Supreme Court’s determination of Kea’s appeal. Those grounds can be addressed without an adjournment. Further, the Court should proceed to address the interim liquidators’ application for permissive directions without further delay given the steps that have been taken to interfere with the interim liquidators. The Court of Appeal specifically acknowledged that the interim liquidators may need to seek further direction from this Court, saying such directions could, in the circumstances of this case, include directions that the interim liquidators not take steps
by way of enforcement of the Kentucky Default Judgment, pending resolution of the Kentucky appeal.15 Proceeding with the application for directions of an interim nature pending the remaining Supreme Court appeal was appropriate. Nor should the application be adjourned until liquidators, rather than interim liquidators, have been appointed. An adjournment was unnecessary and would have prejudiced the interim liquidators.
Substantive application for directions – direction 1.1(a)
Applicable principles
[27] There is no dispute as to the applicable principles for directions to liquidators. As Mr Arthur submitted, s 284 of the Companies Act 1993 vests the Court with supervisory jurisdiction over liquidations, allowing it to intervene where appropriate, and allowing liquidators a mechanism to seek guidance from the Court where necessary. Section 284(1)(a) states:
On the application of the liquidator, a liquidation committee, or, with the leave of the court, a creditor, shareholder, other entitled person, or director of a company in liquidation, the court may—
(a)give directions in relation to any matter arising in connection with the liquidation;
[28] A liquidator acting on Court directions under s 284(1)(a) is protected from any claims made against them for actions taken in accordance with those directions, unless the Court orders otherwise.16
[29] Where there is serious doubt or difficulty over an issue that is concerned with the discharge of the liquidator’s statutory duties, failure on the part of the liquidator to seek Court directions can constitute strong evidence of lack of good faith or negligence.17
15 Wikeley v Kea Investments Ltd [2024] NZCA 609, [2024] 3 NZLR 901 at [200].
16 Section 284(3) and (4).
17 See Commissioner of Inland Revenue v Robertson [2017] NZHC 31, (2017) 28 NZTC 23-000 at [71]-[72]; citing Re Windsor Steam Coal Co (1901) Ltd [1929] 1 Ch 151 (CA); and Re Home and Colonial Insurance Co Ltd [1930] 1 CH 102 (Ch).
[30] As the Court of Appeal said in its 21 November 2024 judgment, the interim liquidators remain under the control of this Court. Further, they are officers appointed by the Court. As such, they have a responsibility to the Court akin to a barrister and solicitor. Under the rule in Re Condon,18 liquidators appointed under Court order, who are officers of the Court and obliged to act in a manner consistent with the highest principles, are not permitted to take advantage of the strict legal rights available to them if to do so would mean that they were acting unjustly, inequitably, or unfairly.19
Discussion
[31] In relation to the substantive application for the amended direction 1.1(a), Mr Arthur submitted that the Supreme Court’s decision refusing to grant leave to appeal the fraud findings upheld by the Court of Appeal was key, and that the comity decision was less relevant. He submitted that regardless of whether the permanent injunction was discharged by the Supreme Court, it would be improper for the interim liquidators to enforce a fraudulent judgment. He submitted the latest Kentucky decision was not a reason against making the direction sought. He accepted that care was required given comity considerations but submitted the direction sought is not at odds with the latest order.
[32] After the lunch adjournment, Ms Monteiro indicated that MK Solicitors did not oppose direction 1.1(a) as amended, with leave reserved. Mr Wikeley said he was happy to go along with that. In the absence of formal consent, I briefly address my reasons for making the orders.
[33] I accept Mr Arthur’s submission that if the interim liquidators (and their counsel) were to pursue enforcement of the Default Judgment, they would be in breach of their obligations. As interim liquidators subject to the Court’s supervision, they are not permitted to take advantage of strict legal rights – which may be available to them
18 Re Condon, ex parte James (1874) LR 9 Ch App 609 (CA).
19 This was common ground and applied in Strategic Finance Ltd (in rec and in liq) v Bridgman [2013] NZCA 357, [2013] 3 NZLR 650 at [108]; with the Court also citing Re Cider (New Zealand) Ltd (in liq) [1936] NZLR 374 (SC); and John Farrar and Susan Watson (eds) Company and Securities Law (online looseleaf ed, Brookers) at [CA260.04]. The rule has been applied consistently in other cases in this Court: Re Thomas Horton [1925] NZLR 739; Re Byers, ex parte Davies [1965] NZLR 774; Official Assignee v Westpac Banking Corporation (1993) 4 NZBLC 102,939; and Commissioner of Inland Revenue v Robertson [2018] NZHC 696.
in Kentucky – to pursue enforcement of a Default Judgment determined to have been obtained by fraud. That would be acting unjustly, inequitably and unfairly, contrary to the rule in Re Condon.20 Whether or not there is a legal right to enforce the Default Judgment in Kentucky is irrelevant to the issue for this Court concerning the propriety of enforcement by the interim liquidators.21
[34] I also accept Mr Arthur’s submission that, absent the direction sought, the interim liquidators risk facing claims by the Wikeley family respondents and certain creditors of WFTL if they refrain from seeking to enforce or act on the Default Judgment. That risk is evident from the threats made over time by Wikeley family members and the stance of creditors Regard LLC and MK Solicitors.22 The interim liquidators should not be left in that position, and forced to incur costs, given the impropriety of taking steps to enforce the fraudulently obtained Default Judgment. The steps taken in Kentucky just before the hearing in an attempt to wrestle control of the Default Judgment away from the interim liquidators further indicate the lengths to which Wikeley family members will go seeking to monetise the Default Judgment.
[35] There is no merit in the submission that the direction now sought goes beyond the order sought in the Supreme Court. That appeal has no bearing on the final determinations of fraud and conspiracy against WFTL, Mr Wikeley and the other defendants, and therefore no bearing on the propriety of the interim liquidators seeking to enforce the Default Judgment. Further, the permissive order sought would not go beyond the status quo pending Kea’s appeal. It is neither necessary nor appropriate for the application for direction 1.1(a) to await the determination of Kea’s Supreme Court appeal.
[36] The directions sought should extend to WFTL as (corporate) trustee of the Wikeley Family Trust (a New Zealand trust), essentially for the same reasons. The Court also has supervisory jurisdiction over the administration of a New Zealand trust. WFTL is under the control of the interim liquidators who must administer the trust assets in accordance with the equitable obligations that govern the trust, acting in
20 Re Condon, ex parte James (1874) LR 9 Ch App 609 (CA).
21 It is unnecessary to address the other objections to the admissibility of the expert evidence on Kentucky law, some of which I have addressed in other decisions.
22 Regard LLC purported to file a notice of appearance dated 5 March 2025 but took no further steps.
a responsible way.23 Trustees have a duty to act honestly and in good faith.24 As a result of the stay pending the Supreme Court appeal, Mr Wikeley is prevented from appointing additional or replacement trustees. Inconsistency in directions to the interim liquidators and WFTL would be undesirable, especially in the extraordinary circumstances of this case.
[37] For these reasons, the order sought in amended direction 1.1(a) is necessary and appropriate. As Mr Harris submitted, the direction protects the interim liquidators and WFTL as trustee of the Wikeley Family Trust against any beneficiaries of the Trust.
[38] I reserved leave for the parties to seek further orders or directions from the Court if there is a change of circumstances. This reflected MK Solicitors’ position in withdrawing its opposition to direction 1.1(a) and was appropriately applicable to other parties.
[39] Given the limited order made, I directed the parties to confer and file a memorandum or memoranda in respect of timetabling the process for determining the remainder of the Application, and to attend any subsequent conference for the same purpose.
Costs
[40] If the parties cannot agree on costs, memoranda (not exceeding three pages) may be filed within 20 working days and I will determine costs on the papers.
Gault J
23 Re French Caledonia Travel Service Pty Ltd [2002] NSWSC 641, (2002) 42 ACSR 524 at [12] and [13]. See also Commissioner of Inland Revenue v Newmarket Trustees Ltd [2012] NZCA 351, [2012] 3 NZLR 207 at [71] and [72]; and Ruscoe v Houchens [2024] NZHC 419.
24 Trust Act 2019, s 25.
Counsel / Solicitors / Parties:
Mr M D Arthur and Mr J Marcetic, Chapman Tripp, Auckland Mr K D Wikeley
Mr JBM Smith KC, Barrister, Wellington; Mr MC Harris, Barrister, Auckland; and Mr JLW Wass, Barrister, Wellington (for Kea Investments Ltd)
Mr M C Smith (instructing solicitor for Kea Investments Ltd), Gilbert Walker, Auckland Mr C Browne and Ms F Monteiro, Wilson Harle, Auckland
Copy to:
Mr A F Regard, Regard Law Group PLLC
16
1