Kea Investments Limited v Wikeley
[2025] NZHC 3488
•17 November 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-3182
[2025] NZHC 3488
BETWEEN KEA INVESTMENTS LIMITED
Plaintiff
AND
KENNETH DAVID WIKELEY
First Defendant
WIKELEY FAMILY TRUSTEE LIMITED
(in interim liquidation) Second Defendant
OLIVER LEONARD WIKELEY
Third DefendantWILLIAM KENNETH WIKELEY
Fourth DefendantGEMMA CELESTE WIKELEY
Fifth Defendant
Hearing: 3 November 2025 Appearances:
M C Harris and S T Coupe for the Plaintiff
J A Farmer KC and G Simms for the First, Third, Fourth and Fifth Defendants
M D Arthur and G L Gardyne for the Second DefendantJudgment:
17 November 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 17 November 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
KEA INVESTMENTS LTD v WIKELEY [2025] NZHC 3488 [17 November 2025]
[1] The first, third, fourth and fifth defendants (the Wikeley defendants) apply for an order convening a judicial settlement conference (JSC).1
[2] The second defendant (WFTL) and its interim liquidators (together, the interim liquidators) do not oppose the application. Indeed, Mr Arthur, for the interim liquidators, indicated at the hearing that, rather than merely abiding, they were in favour of resolving all or some of the issues given the attraction of cost savings.
[3]The plaintiff (Kea) strongly opposes a JSC.
[4] Mr Regard, whose law firm Regard Law Group PLLC had filed an appearance as an interested creditor of WFTL in the interim liquidators’ separate proceeding,2 sought leave to participate in the hearing and requested permission to participate in any JSC remotely.
Factual background
[5] This proceeding is part of a wider dispute between these and other parties arising out of a default judgment against Kea for US$123,750,000 plus interest and costs dated 31 January 2022 in the proceeding Wikeley Family Trustee Ltd v Kea Investments Ltd in the Commonwealth of Kentucky, Fayette Circuit Court, 9th Division (the default judgment).3
[6] It is unnecessary to set out the wider background to the dispute in detail. It is recorded in earlier judgments of this Court, the Court of Appeal, and leave judgments in the Supreme Court, most recently summarised in my judgment in this proceeding of 21 August 2025 and my judgment in one of the related proceedings dated 22 September 2025.4 Suffice to say, litigation is ongoing in New Zealand, Australia and the United States of America (in Kentucky and in the United States Bankruptcy
1 Application dated 7 October 2025. An earlier application was not referred to me given a dispute about the inclusion of privileged material.
2 Gibson v Wikeley HC Auckland CIV-2025-404-31.
3 Wikeley Family Trustee Ltd v Kea Investments Ltd 21-CI-02508 (2022) Ky Cir LEXIS 12 (USA) (31 January 2022).
4 Kea Investments Ltd v Wikeley [2025] NZHC 2387; and Gibson v Wikeley [2025] NZHC 2762.
Court) albeit the New Zealand courts have finally determined that the default judgment obtained by WFTL in the Fayette Circuit Court (Kentucky) was obtained by fraud.
[7] Since the hearing of this application, on 10 November 2025 the Supreme Court delivered a result judgment allowing Kea’s appeal from the decision of the Court of Appeal and reinstating the injunctive orders made by this Court.5
Applicable principles for convening judicial settlement conference
[8]Rule 7.79 of the High Court Rules 2016 provides:
7.79 Court may assist in negotiating for settlement
(1)A Judge may, at any time before the hearing of a proceeding, convene a conference of the parties in chambers for the purpose of negotiating for a settlement of the proceeding or of any issue, and may assist in those negotiations.
(2)A Judge who presides at a conference under subclause (1) may not preside at the hearing of the proceeding unless—
(a)all parties taking part in the conference consent; and
(b)the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.
(3)A Judge may, at any time during the hearing of a proceeding, with the consent of the parties, convene a conference of the parties for the purpose of negotiating for a settlement of the proceeding or of any issue.
(4)A Judge who convenes a conference under subclause (3) may not assist in the negotiations, but must arrange for an Associate Judge or another Judge to do so unless—
(a)the parties agree that the Judge should assist and continue to preside at the hearing; and
(b)the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.
(5)A Judge may, with the consent of the parties, make an order at any time directing the parties to attempt to settle their dispute by the form of mediation or other alternative dispute resolution (to be specified in the order) agreed to by the parties.
5 Kea Investments Ltd v Wikeley [2025] NZSC 156.
(6)The parties, and a Judge or Associate Judge who presides at a conference or assists in negotiations under this rule, must not disclose any statement made during a conference, either—
(a)in court; or
(b)otherwise.
(7)This rule must be read with subpart 8 of Part 2 of the Evidence Act 2006 (privilege).
[9]In the absence of much case law, the approach to r 7.79(1) is summarised in
McGechan on Procedure as follows:6
Judicial settlement conferences may be held in the case management process and in the lead up to trial, but orders under r 7.79 are now reasonably infrequent as they are seldom considered to be an appropriate use of High Court judicial resources. As a matter of practice in Auckland, the List Judge decides whether settlement conferences should be allocated. A Judge who considers there is merit in a proposal by a party for a settlement conference will refer the matter to the List Judge for a decision: Ash v Singh [2017] NZHC 2909 at [53]. A conference may still be appropriate where it is unlikely that the case would settle without judicial input, where mediation has failed, or where the parties cannot afford private mediation. It is usual practice under r 7.79 for the Judge to take into account the views of the parties as to whether a conference will be helpful, as in Coles v Earthquake Commission [2020] NZHC 2380, but the fact that one party resists taking part in a conference will not be decisive and may not even be influential: Leonardo v Auckland City Council HC Auckland CIV-2007-404-1352, 2 November 2009.
Discussion
[10] The Wikeley defendants seek to settle the litigation in all three countries, and to do so seek the assistance of a High Court Judge, and preferably me since I have been presiding over the New Zealand proceedings.7
[11] This application for a JSC is unusual in that it attaches draft terms of settlement to which the Wikeley defendants say they will agree. In essence, they say they are willing to agree to the default judgment being discharged in return for Kea and the interim liquidators discontinuing all litigation against them.
6 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR7.79.01].
7 Coincidentally, I am also the List Judge to whom such an application would be referred.
[12] Mr Farmer KC, for the Wikeley defendants, submitted that it is in the interests of both Kea and the Wikeley defendants to enter into a settlement agreement of this kind. He submitted that Kea would achieve its major goal of having the default judgment discharged without having to go through the costly appeals process in Kentucky which in effect requires it to repeat the process it went through to obtain the factual findings made in this Court. The Wikeley defendants would be free of the ongoing stress and exposure of the litigation, Mr Wikeley would not have to defend the Queensland contempt charges and will obtain his passports which will enable him to travel.
[13] As indicated, the interim liquidators are attracted to a JSC. However, they oppose my presiding over it given that r 7.79(2)(a) provides that a Judge who presides at a JSC may not preside at the hearing of the proceeding unless all parties taking part in the conference consent. The interim liquidators consider there is too great a risk that consent to my presiding over any subsequent hearing may be withdrawn. Kea also opposes my presiding on this basis, in the alternative to its opposition to any JSC.
[14] Insofar as Kea opposes a JSC on the basis it will not agree to the Wikeley defendants’ draft terms of settlement, I do not consider this should rule out a JSC. The nature of a JSC is that parties may compromise what previously appeared to be fixed positions. Parties are expected to consider settlement constructively.
[15]However, I decline to order a JSC here, for the following interrelated reasons.
[16] First, even if the Wikeley defendants (and Regard Law Group PLLC) agree to the default judgment being discharged, the parties to the Kentucky proceeding are Kea and WFTL, not the Wikeley defendants. The Wikeley defendants’ consent to discharge of the default judgment does not suffice. Further, given the history of this litigation and uncertainty that all beneficiaries of the Wikeley Family Trust have been identified,8 the interim liquidators understandably indicated they would still require the protection of this Court’s directions – scheduled for hearing on 9 February 2026 – albeit, as Mr Arthur acknowledged, their application may be more straightforward in
8 Mr Farmer provided a list of beneficiaries with his memorandum of 4 November 2025.
the event of consent. Thus, even a settlement between the parties reached at a JSC would not remove the need for that hearing in this Court.
[17] I acknowledge the recent Supreme Court result judgment may affect next steps and reduce the scope for interference by any other beneficiaries of the Wikeley Family Trust, but there is still substance to the submission of Mr Harris, for Kea, that the obstacles to an effective resolution cannot be cleared through a negotiation between Kea and the Wikeleys and that the fraud unleashed by Mr Wikeley and his co-conspirators is not easily unwound.
[18] In particular, Mr Stadler and his firm, MK Solicitors, are not party to the New Zealand proceedings albeit MK Solicitors have appeared as an interested creditor of WFTL in the interim liquidators’ separate proceeding. They have not indicated any willingness to attend a JSC. There was disagreement at the hearing about the nature of an appeal lodged by Mr Stadler in the US Bankruptcy Court, and I reserved leave for the parties to file supplementary memoranda. Having received further memoranda, I accept that some issues on that appeal relate to orders against Mr Stadler personally, but I note that Mr Stadler does purport in his own right to raise an issue as to whether the case is eligible for chapter 15 recognition. Mr Farmer submitted a question arises as to Mr Stadler’s standing to argue that issue on his own behalf. That may be so but, given the history of this litigation, a JSC without Mr Stadler / MK Solicitors – or any other person who may seek to uphold the default judgment – would be undesirable.
[19] Secondly, this is no ordinary commercial case. Given the ongoing steps taken even since the Supreme Court denied leave to Mr Wikeley to challenge the fraud findings on 4 July 2025,9 I acknowledge Mr Harris’ submission that there is no trust and no confidence any settlement agreement could be relied on, and that Court orders are required. Mr Harris said that 150 documents have been added to the US Bankruptcy Court file since July. In these circumstances, ordering Kea to attend a JSC over its strong and considered objection, and requiring a Kea representative to travel to New Zealand for that purpose, seems inappropriate.
9 Wikeley v Kea Investments Ltd [2025] NZSC 76.
[20] Thirdly, even if a JSC were appropriate, there is very limited Court availability at this time of year. Related to this, I was told there are hearings scheduled in Queensland next month (the contempt hearing referred to above and an application to bankrupt Mr Wikeley for non-payment of Court-ordered costs). I am not aware of the specific dates but to be of assistance any JSC would need to precede these hearings, which may not be feasible.
[21] Finally, given the opposition to my presiding at a JSC, I consider that any JSC would need to be convened by another Judge. Given the history of the litigation and the timing constraints, this would be sub-optimal.
Result
[22]The application for an order convening a JSC is declined.
[23] My preliminary view is that there should be no order as to costs in relation to this application. If costs are sought, a memorandum is to be filed and served within 20 working days, and any response filed and served within a further 10 working days. Memoranda are not to exceed three pages. I will then determine costs on the papers.
Gault J
Solicitors / Counsel:
Mr JBM Smith KC and Mr JLW Wass, Barristers, Wellington Mr M C Harris, Barrister, Auckland
Mr M C Smith and Mr S T Couple, Gilbert Walker, Auckland Mr J A Farmer KC, Barrister, Auckland
Mr G D Simms, Wynn Williams, Auckland
Mr M D Arthur, Mr J Marcetic and Ms G L Gardyne, Chapman Tripp, Auckland Copy to:
Ms F Monteiro and Mr C Browne, Wilson Harle, Auckland Mr A Regard, Regard Law Group PLLC, Kentucky, USA
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