Kea Investments Limited v Wikeley
[2025] NZHC 2387
•21 August 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 2387
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: 5 August 2025 Appearances:
M C Harris, JLW Wass and S Coupe for the Plaintiff
J A Farmer KC for the First, Third, Fourth and Fifth Defendants M D Arthur and J Marcetic for the Second Defendant
Judgment:
21 August 2025
JUDGMENT OF GAULT J
(Interim relief orders)
This judgment was delivered by me on 21 August 2025 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
KEA INVESTMENTS LTD v WIKELEY [2025] NZHC 2387 [21 August 2025]
[1] Following Interlocutory Orders dated 18 July 2025,1 made on a without notice “interim interim” basis at the hearing of an application for directions by the interim liquidators of the second defendant (WFTL) in a related proceeding,2 the on notice interlocutory application for interim orders by Kea Investments Ltd (Kea) was listed for a return hearing on 5 August 2025.
[2]The Interlocutory Orders were served on 18 July 2025.
[3] Kea filed an amended interlocutory application and amended statement of claim on 25 July 2025.
[4] On 31 July 2025, Mr Farmer KC accepted service on behalf of the first, third, fourth and fifth defendants (the Wikeley family defendants).3
[5] No notice of opposition had been filed before the hearing on 5 August 2025, but Mr Farmer appeared for the Wikeley family defendants to oppose the continuation of the Interlocutory Orders and seek a timetable for notices of opposition and affidavits.
[6] Mr Harris, for Kea, sought continuation of the Interlocutory Orders and further orders. Mr Arthur, for the interim liquidators, made submissions in support.
[7] At the end of the hearing, I reserved my decision but continued the 18 July orders in the meantime.4
[8] Mr Farmer sought, and I granted, two weeks to file and serve notices of opposition and affidavits (that is, by 19 August 2025), with any reply affidavit by 22 August 2025, and I indicated that I would convene a further hearing in the week of 25 August 2025.
1 Interlocutory Orders dated 18 July 2025; with reasons in my minute dated 4 August 2025.
2 Gibson v Wikeley, CIV-2025-404-31.
3 Although Mr Farmer did not yet have an instructing solicitor, he helpfully accepted service to facilitate the conduct of this proceeding. Where I refer to the Wikeley family defendants individually I do so by given name for ease of reference, not informality.
4 I also indicated that as the separate 28 March 2025 interim orders (referred to below) were not listed for review on 5 August 2025, they would remain in place pending a further hearing.
Background
[9] It is unnecessary to set out the wider background to this dispute in detail. It is recorded in earlier judgments of this Court and the Court of Appeal.5 The dispute concerns a default judgment dated on or about 31 January 2022 (the Default Judgment) in the proceeding Wikeley Family Trustee Ltd v Kea Investments Ltd in the Commonwealth of Kentucky, Fayette Circuit Court, 9th Division.6
[10] The more immediate background is conveniently set out in Kea’s submissions, as follows (with minor adaptation).
[11] Kea commenced this proceeding in December 2024 against Mr (Kenneth) Wikeley and WFTL in response to Mr Wikeley’s ongoing pursuit of his conspiracy against Kea, and particularly his demands, in breach of the injunctions that remain in force against him, that the interim liquidators preserve, uphold, enforce and seek to extract value from the Default Judgment.
[12] The Court of Appeal, in its judgment of 21 November 2024, reserved the rights of Kea and the interim liquidators to return to this Court for further orders.7 In doing so, the Court referenced two matters that are relevant to the present application. The first, which the Court noted “with concern”, was the letter sent by Kenneth, Oliver and William 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
5 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.
6 Civil Action No. 21-Cl-02508.
7 Wikeley v Kea Investments Ltd [2024] NZCA 609 at [211].
8 At [198].
9 At [208].
himself uninhibited in his endeavours to defeat the orders of the New Zealand courts.”10
[13] Despite the Court of Appeal’s upholding of the fraud and conspiracy determinations and the continuance of the injunctions against him, Mr Wikeley has carried on his attempts to enforce the Default Judgment. On 3 December 2024, he wrote to the interim liquidators (for himself, William and Oliver) threatening legal, disciplinary and criminal sanctions if they moved to discharge or undermine the Default Judgment.
[14] Kea filed this proceeding on 10 December 2024 against Mr Wikeley and WFTL together with an application for interim relief. The interim liquidators filed an originating application for directions 10 days later.
Interim interim orders against Mr Wikeley
[15] On 4 March 2025, following the Court of Appeal’s stay of the discharge of the injunctions granted by this Court,11 Kea amended its application for interim relief to seek orders restraining Mr Wikeley from: appointing an additional or replacement trustee of the WFT; changing any terms of the Trust (including the proper law of the Trust); exercising any of his powers under the terms of the Trust; and—most relevantly—taking “any other steps to remove the Coal Agreement or the Default Judgment from the ownership or control of [WFTL]”.
[16] Mr Wikeley filed numerous memoranda opposing and seeking to delay both Kea’s application and the interim liquidators’ application, including by filing applications for recusal (which were declined).
[17] On 28 March 2025, the Court made the orders sought by Kea on an interim interim basis until 28 days after the determination of the interim liquidators’ application for directions.12 The Court also directed that the orders were to be
10 Wikeley v Kea Investments Ltd [2024] NZCA 609 at [208].
11 Wikeley v Kea Investments Ltd [2024] NZCA 686.
12 Minute of 28 March 2025.
reviewed at a full hearing of the amended application, to be scheduled promptly following the Supreme Court’s determination of Kea’s application for leave to appeal.
[18] Kea’s memorandum ahead of the 18 July hearing submitted that it was appropriate to continue the 28 March orders and that, if Mr Wikeley insisted upon a full hearing, then Kea would seek a timetable for this at the 18 July hearing. This was not addressed at the 18 July hearing. Kea asked the Court to continue the orders at the return date hearing or allocate a fixture.
Supreme Court’s determinations of leave to appeal
[19] 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.13
[20] 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.14 As a result, the determinations of fraud and conspiracy against WFTL, Mr Wikeley and the other defendants are final, including 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. Kea submitted it is not open to Mr Wikeley or any other beneficiary of the Wikeley Family Trust to relitigate those determinations.
The interim liquidators’ application for directions
[21] On 7 July 2025, in response to the Supreme Court’s leave judgments, the interim liquidators amended their application to seek final orders that they may properly and justifiably: (a) refrain from seeking to enforce or act on the Kentucky Default Judgment; and (b) take all steps necessary to discharge the Default Judgment.
13 Kea Investments Ltd v Wikeley [2025] NZSC 75.
14 Wikeley v Kea Investments Ltd [2025] NZSC 76.
[22] 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 did not respond to the application, although they plainly knew about it, given the nature, timing and contents of their motion to the Kentucky Court (referred to next). Gemma emailed Chapman Tripp on 13 July saying she was not a beneficiary of the WFT and asking to be left alone. The hearing of the application was scheduled for 18 July.
Steps taken by William, Oliver and Gemma in the Kentucky Court
[23] Proceedings in the Kentucky court have been stayed since 2023 pursuant to an order of the 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.15 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.
[24] On 15 May 2024, the Bankruptcy Court granted recognition to this Court’s determinations that Mr Wikeley’s purported assignments of the Coal Agreement and Default Judgment to Wikeley Inc were void. The recognition order was granted expressly “to assist the New Zealand High Court with enforcement of its orders”. The 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”.
[25] In the early hours of 18 July 2025, however, William, Oliver and Gemma filed a motion ex parte in the Kentucky Circuit Court for the appointment of a “Special
15 The recognition has the effect of invoking an automatic bankruptcy stay.
Fiduciary” over the Default Judgment. Kea submitted the motion contained a number of false and misleading statements.16
[26] Filed with that motion were affidavits made by Oliver and William, each of whom stated:
I verily believe that their [sic] father would support this but cannot because he’s under an injunction.
[27] No affidavit made by Gemma was filed. Kea has invited her to explain this, but there has been no response. Absent evidence to the contrary, Kea proceeds on the basis that she was aware of and consented to the application being made in her name.
[28] Kea’s evidence for this hearing included the official audiovisual recording of the hearing in Kentucky and an unofficial transcript.
[29] Kea submitted it is apparent from the motion and supporting evidence, and from the official audiovisual recording of the hearing and the unofficial transcript obtained by Kea from the recording, that the applicants knew of and intended to thwart the interim liquidators’ application; indeed, that was the entire basis for making the application ex parte and prior to the hearing on 18 July in this Court.
[30] Kea submitted the recording and transcript of the hearing show that it had some remarkable and concerning features, including the following. The lawyer who argued the motion for William, Oliver and Gemma was the same Mr McCloud who filed an affidavit on matters of Kentucky law, purportedly as an impartial expert, in support of MK Solicitors’ opposition to the interim liquidators’ application.17 Seated behind Mr McCloud, in the public gallery, was Mr Regard (who had been enjoined by the Bankruptcy Court from acting adversely to WFTL in that Court). Seated next to Mr Regard was the proposed Special Fiduciary, for whom Mr Regard said he intended
16 For example, Mr McCloud submitted that the orders made by this Court on 6 April 2023 (appointing the interim liquidators) were sought “based solely in dissatisfaction with [the Circuit] Court’s judgment in order to frustrate this court’s judgment”; that there would be irreparable harm if the Circuit Court’s judgment was discharged by a “foreign body”; “there was no fraud committed here, they [Kea] just didn’t answer the complaint”.
17 Mr McCloud asserted in his subsequent pleading in the Bankruptcy Court, filed in response to the interim liquidators’ application to have the Circuit Court order held to be void, that he was not engaged as counsel until after he had given the affidavit.
to act if she was appointed. Mr McCloud repeatedly turned to Mr Regard for assistance in addressing the Court and Mr Regard obliged by openly feeding him lines from the public gallery. Mr Regard even addressed the Judge directly from the gallery at some length and at one stage addressed the Judge “off the record” during which time the audiovisual recording was paused.
[31] After a hearing lasting 17 minutes, the Circuit Court granted the orders sought at 12:05pm (being 4:05am on 18 July in New Zealand).
[32] While the Bankruptcy Court has voided those orders (referred to next), Kea submitted the concerted steps taken by William, Oliver and Gemma to avoid the consequences of the fraud and conspiracy determinations against WFTL and their father, to undermine the injunctions that remain in place, and to render futile the directions sought by the interim liquidators, are relevant to the present application. The orders (which were granted in the form tendered by Mr McCloud without amendment) included:
(a)“The Special Fiduciary shall have full power to administer, deal with, affect and/or transact in any way, without limitation, in respect of [WFTL’s] Kentucky-situs property”;
(b)“The Special Fiduciary shall file a motion with the Kentucky Court of Appeals notifying it of her appointment and seeking that she be substituted for the Trustee [i.e. WFTL]”;
(c)“[WFTL’s] powers to administer, deal with, transact, affect and/or impair in any way, without limitation, in respect of [WFTL’s] Kentucky-situs property are suspended in full”;
(d)“[WFTL] shall not administer, deal with, transact, affect, and/or impair in any way, without limitation, nor shall [WFTL] cause anyone else to administer, deal with, transact, affect, and/or impair in any way, without limitation, [WFTL’s] Kentucky-situs property save that [WFTL] may:
(i)Appear before this Court (and only this Court) for directions and/or orders in respect of this Order and
(ii)Withdraw its Amended originating application for directions under Companies Act 1993 and the Trusts Act 2019 dated July 7, 2025, before the New Zealand Court”;
(e)“Any act by [WFTL] in breach of this Order shall be void ab initio”; and
(f)“Any breach of this Order by the Trustee, including any of its agents or representatives such as, and without limitation, its lawyers, may result in [WFTL] and/or that person being found to be in civil and/or criminal contempt of this Court and liable to be fined and/or jailed”.
[33] Kea submitted William, Oliver and Gemma urged the Kentucky Court to make these orders because they claimed that the interim liquidators were causing WFTL to breach its fiduciary duties as trustee, including through the directions they were seeking from this Court. The proper forum and occasion for advancing such arguments, if they had any merit, was in this Court in opposition to the interim liquidators’ application. The Bankruptcy Court, in giving recognition to the determinations that Mr Wikeley’s purported assignments were void, opined that the dispute “has cried out from the beginning for resolution in one court”. Like their father, William, Oliver and Gemma can instruct counsel and engage with this Court as and when it suits them.
[34] In applying ex parte and without notice to the Kentucky Court only hours before the hearing in this Court on 18 July, Kea submitted it may be inferred that William, Oliver and Gemma intended to:
(a)remove the Default Judgment from the control of WFTL and the interim liquidators, who are under the control of this Court;
(b)usurp the interim liquidators’ application and render futile any order that this Court may make;
(c)defeat the orders of this Court, the Court of Appeal and the Supreme Court, including the injunctions made in the formal proof judgments (which remain in force by order of the Supreme Court staying their discharge by the Court of Appeal), the injunctions made on 28 March 2025 restraining Mr Wikeley from changing the proper law of the Trust and from taking any steps to remove the Default Judgment from the ownership or control of the interim liquidators; and
(d)facilitate the enforcement of the Default Judgment despite the determinations of this Court and of the Court of Appeal that it had been obtained by fraud.
[35] Kea submitted Mr Wikeley evidently shared these objectives. At the hearing on 18 July, he made clear his satisfaction that the Default Judgment was, as he put it, back in Kentucky. While he disclaimed prior knowledge of the application brought in the name of his children, he unabashedly expressed his support for it. He felt sufficiently confident to tell this Court it would not matter what orders it made, as authorities in Kentucky would take no notice of them.
Bankruptcy Court declares the Circuit Court’s orders void ab initio
[36] On 21 July, the interim liquidators applied to the Bankruptcy Court for the Circuit Court’s orders to be declared void ab initio and for sanctions and damages against William, Oliver and Gemma, Mr McCloud and Mr Regard. The bases of the application were that the Circuit Court’s orders violated the Bankruptcy Court’s stay order and the “Barton” doctrine, which requires any challenge to the appointment of a court-appointed trustee to be made to or with the consent of the appointing court. Kea submitted Mr McCloud filed submissions on his own behalf (not that of the Wikeleys) opposing the motion in misleading and exaggerated terms.
[37] The application was heard on 29 July (early on 30 July in New Zealand) and the order avoiding the Circuit Court’s orders was made immediately, with a more expanded minute of order made shortly thereafter. The Bankruptcy Court Judge described the application to the Circuit Court as a “gross violation of the stay” and stated that “it does appear on the surface that the ex parte nature was to conceal”.
[38] Kea submitted the order voiding the Circuit Court’s orders is to be followed by a more lengthy order that the Judge characterised as necessary to discourage further violations. Sanctions are to be determined later this month.
[39] The day before the Bankruptcy Court hearing Mr McCloud filed a motion to withdraw “as counsel for the Plaintiff” in the Circuit Court. The application cited a lack of communication from the “Client” making it “unreasonably difficult to continue representation in a professional and ethical manner”. Kea submitted it appears from the withdrawal motion that Mr McCloud may not know who his clients are and may not have spoken to them or otherwise verified their identities. The withdrawal motion references Gemma Wikeley’s email address and a postal address for her that Kea understands she has not used for quite some time.
[40] The Bankruptcy Court ordered Mr McCloud to file a notice advising the beneficiary parties on whom he had served the Court’s order. The notice filed by Mr McCloud referred to one Aaron Wikeley, who while not a party to the application, appears to have been involved in some way. This was not the first time Aaron Wikeley’s name has come up: he was copied by Mr Wikeley to the May 2024 correspondence with the interim liquidators.18 The other beneficiaries named in the notice were Oliver (at [REDACTED]) and Gemma (at [REDACTED]).
Kea’s amended statement of claim
[41] Kea filed an amended statement of claim on 25 July adding William, Oliver and Gemma as defendants on the basis that they have joined their father in conspiring to defraud Kea. It is alleged that:
18 At the hearing, it was clarified that Aaron Wikeley is in fact William Wikeley.
(a)William and Oliver have combined with their father and with each other to pursue a continuation of the same conspiracy for which WFTL and their father have been held liable in the formal proof judgment. They have done so by their demands that the interim liquidators seek to extract value from the Default Judgment.
(b)William, Oliver and Gemma have combined with their faither and with each other to pursue the same conspiracy by seeking and obtaining the orders of the Circuit Court in the knowledge that they had been obtained by fraud.
(c)William, Oliver and Gemma acted in contempt of this Court by conspiring with their father to carry out an act which they knew their father was enjoined from carrying out (by the order of 28 March 2025 and permanent injunctions that remain in force).
(d)In taking the above steps, William, Oliver and Gemma have sought and are seeking to:
(i)pursue and to assist their father in pursuing the same objectives as their father as pleaded; and
(ii)to interfere with the due process of the New Zealand courts and thereby undermine the administration of justice.
[42]Kea pleads that in these circumstances:
(a)it needs to take further steps to protect itself against any further attempts by the Wikeley family to assert rights under the forged Coal Agreement or the fraudulently obtained Default Judgment;
(b)the Wikeleys’ conduct has caused it loss, including the costs it has incurred in investigating and responding to their conduct; and
(c)unless restrained by this Court, the Wikeleys will continue to commit torts against Kea by seeking to enforce or facilitate the enforcement of the Default Judgment, procuring or pressuring WFTL into enforcing the Default Judgment against Kea in Kentucky and elsewhere, and/or by seeking to have the Default Judgment removed from the control of the interim liquidators, and/or seek to appoint new trustees of the WFT and/or change the proper law of the Trust.
[43] By way of relief, Kea seeks damages, a declaration that William, Oliver and Gemma are bound by the formal proof judgments as privies of Mr Wikeley and WFTL; an account of any money or other property received any reason of their conduct; and injunctions that the defendants:
(a)shall not at any time take any steps and shall not cause or permit any other person to pursue litigation or take steps to enforce or otherwise act on the Coal Agreement, the Default Judgment and the Statutory Demand;
(b)shall not make changes to the governance and terms of the Trust;
(c)shall not seek to remove the Default Judgment from the control of WFTL (acting by its liquidators); and
(d)shall cause their privies and assignees to comply with such orders.
Kea’s amended application for interim relief
[44] Kea filed an amended application for interim relief with its amended statement of claim. The amended application seeks:
(a)The orders made against Mr Wikeley on an interim interim basis on 28 March (at 1.a.i-iv) (that he not exercise any of his powers in relation to the Trust or take any steps to remove the Coal Agreement or Default Judgment from the ownership or control of WFTL) plus orders that he cause his privies and assignees to comply with those orders
(1.a.v) and not cause or assist any other person anywhere in the world to act inconsistently with any of those orders (1.a.vi).
(b)The orders made against Oliver, William and Gemma on 18 July (1.b) plus orders in the same terms as those sought against their father (1.c)— effectively ensuring that all four Wikeleys are subject to the same injunctions.
(c)The following further orders:
(i)that the Wikeleys advise Kea in writing of the names and addresses of any persons or entity funding their costs for the steps taken in Kentucky (1.e);
(ii)that Mr Wikeley advise Kea in writing the places of residence of all beneficiaries of the WFT (including William, Oliver, and Gemma) (1.f); and
(iii)that Mr Wikeley be appointed representative of any other beneficiary of the WFT for the purpose of implementing and rendering effect these orders (1.g).
[45]The grounds of the application are (in summary):
(a)there are final determinations of fraud and conspiracy in relation to the Coal Agreement and Default Judgment (2.a and 2.b);
(b)there remain in force the negative injunctions granted in the formal proof judgment (2.c.) and the injunctions granted on an interim interim basis on 28 March (2.d);
(c)despite these final determinations the injunctions in force, the Wikeleys continue to conspire to defraud Kea by seeking to enforce or otherwise extract value from the fraudulently obtained Default Judgment (2.f);
(d)Kea must protect itself against the continuing attempts of the Wikeley family and others acting in concert with them to enforce or extract value from the Default Judgment (2.g);
(e)unless the Wikeleys and all other beneficiaries of the WFT are restrained by this Court, they will continue to take steps to defeat this Court’s jurisdiction over them and WFTL by purporting to replace the trustee of the WFT and/or change the proper law of the Trust; or taking other steps to remove the Coal Agreement and the Default Judgment from the ownership or control of the interim liquidators of WFTL (2.h);
(f)as beneficiaries of the WFT, Oliver, William and Gemma are privies of their father and WFTL as trustee, and are accordingly bound by the findings and declarations of this Court in the formal proof judgment (2.i); and
(g)the orders as to disclosure of funding and beneficiaries’ contact details, and as to the representative order, are necessary to stop the defendants’ continuing efforts in New Zealand and elsewhere as beneficiaries of a New Zealand trust to undermine the due process and administration of justice by this Court and the effectiveness of the Court’s orders (2.k).
Orders sought at the return hearing
[46] The orders made on 18 July 2025 were served that day on each of the Wikeleys in accordance with the orders as to service. Kea was advised that they had instructed Mr Farmer (but not yet solicitors) on 31 July. None of the Wikeleys have otherwise responded to the 18 July orders.
[47] The orders made on 18 July gave leave to Kea to seek at the return hearing the orders held over, being those sought in the application at paragraphs 1.c (funding),
1.d (identification of other beneficiaries) and 1.f (representative orders). Such orders are now sought at paragraphs 1.e, 1.f and 1.g of the amended application filed on 25 July.
[48] The more limited orders that Kea sought at the return hearing on 5 August were as follows:
(a)that the orders at paragraphs 1.a and 1.b of the 18 July 2025 orders be continued until further order of the Court;
(b)that Kenneth Wikeley, settlor of the WFT, and each of the third to fifth defendants be directed to file and serve an affidavit within five working days identifying the names and contact information so far as known to them (including a physical address, a telephone number and an email address) of:
(i)Aaron Wikeley;
(ii)any other individual, company or trust that falls within the definition of “Discretionary Beneficiaries” of the Wikeley Family Trust and (if it be the case) that there are no other beneficiaries;
(iii)in the case of Kenneth Wikeley, whether he has nominated any other person (including a company or trust) as a Discretionary Beneficiary by deed; and
(c)that any other orders sought in Kea’s amended application of 25 July and not determined at the return hearing be heard as soon as can be accommodated.
[49] Kea submitted the suite of interim orders sought are intended to hold the position pending the determination of Kea’s claims against the defendants.
Applicable principles for interim relief
[50] As I said in an earlier interim relief application in this dispute,19 the general principles governing applications for interim injunctions are well-established. They were summarised by the Court of Appeal in Commerce Commission v Viagogo AG:20
The principles that govern the grant of interim injunctions under r 7.53 and the court’s inherent jurisdiction are well settled. The court will usually adopt a two-stage approach.21 The first inquiry is whether there is a serious question to be tried. If that threshold is met, the court moves on to consider whether the balance of convenience favours granting or refusing relief. But as this Court observed in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, considerations are marshalled under these (non-exhaustive) heads as “an aid to determining, as regards the grant or refusal of an interim injunction, where overall justice lies. In every case the Judge has finally to stand back and ask himself that question.”22
Serious question to be tried
[51] It is not disputed, and I am satisfied, that Kea has established at least a serious question to be tried. As Mr Harris submitted, the determinations made in the formal proof judgment cannot be challenged by any beneficiary of the Wikeley Family Trust. The elements of conspiracy remain those applied by this Court at the interim and formal proof stages of the 2022 proceeding; and by the Court of Appeal on the appeal against the formal proof judgment.23 There is at least an arguable case that William, Oliver and Gemma have joined their father in conspiring to defraud Kea.
Balance of convenience and overall justice
[52] Mr Farmer opposed continuation of the 18 July orders on two main grounds. First, he submitted that following the judgment of the Court of Appeal comity considerations dictate that there should be no injunction. Secondly, he submitted that the stay in force in the US Bankruptcy Court means that interim orders here are unnecessary.
19 Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881 at [35].
20 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [30].
21 See American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).
22 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
23 Wikeley v Kea Investments Ltd [2024] NZCA 609.
[53] Addressing comity first, as Mr Farmer submitted, the Court of Appeal’s decision of course operates as a precedent pending the appeal to the Supreme Court. However, as Mr Harris submitted, the Court of Appeal’s judgment was addressing comity in relation to a permanent injunction. The Court said that Kea should exhaust its appellate rights in the US before asking the New Zealand Court to make permanent orders. The position is somewhat different in relation to interim relief, as the Court of Appeal indicated. Further, the developments since the Court of Appeal decision – particularly the further steps seeking to remove the Default Judgment from the control of the interim liquidators – weigh in favour of explicitly extending interim relief to the new defendants. They are not parties to the Kentucky proceeding. Comity considerations do not weigh against this Court extending interim relief to them in the extraordinary circumstances of this case.
[54] Turning to necessity, I acknowledge the US Bankruptcy Court’s decision. In addition to the automatic stay in s 362 of the Bankruptcy Code, Mr Farmer initially relied on the following terms of that Bankruptcy Court’s order:24
6. The Fayette Circuit Court had no jurisdiction to issue any findings of fact related to the breach of fiduciary duty of the Foreign Representatives and those holdings in the Ex Parte Order are void ab intitio.
7. The Ex Parte Order is not enforceable in the United States or anywhere in the world.
8. WFT Beneficiaries and Craig McCloud are prohibited from taking any further actions against the Foreign Representatives, or the Foreign Debtor’s assets, including the Default Judgment, without obtaining relief from this Court.
[55] However, as Mr Arthur clarified, the Bankruptcy Judge set aside that order and replaced it with an order relevantly stating: 25
(1) The Foreign Debtor’s Emergency Motion [ECF No. 177] is GRANTED and the Ex Parte Order is void ab initio.
(2) No party may submit to, or use, the Ex Parte Order in any other court proceeding anywhere in the world and, to the extent that has occurred, the party has violated the automatic stay and shall take steps to make the applicable governing body aware that the Ex Parte Order is void.
24 Referred to as Doc 197.
25 Referred to as Doc 201. The order setting aside Doc 197 was only in evidence in the related proceeding (CIV-2025-404-31). I grant leave to adduce it in this proceeding.
(3) Craig L. McCloud shall immediately (i) file a copy of this Order in the Fayette Circuit Court; and (ii) serve a copy on the beneficiaries of the Wikeley Family Trust that he represented in the state court proceeding by email (if available) and by an expedited delivery method to any address in his files (even if there are multiple addresses for one party). McCloud shall file a notice of service within three business days indicating how and when he served each party.
[56] This order does not explicitly refer to the WFT beneficiaries, but reinforces the application of the automatic stay. Given the steps taken by the beneficiaries in the Kentucky Court notwithstanding the existence of the automatic stay, and this Court’s supervisory role in relation to WFT as a New Zealand trust and WFTL as a New Zealand company in liquidation, I consider it remains necessary and appropriate for this Court to continue interim orders extending to the new defendants at least pending further order of the Court. It cannot be assumed the Wikeley family defendants accept they are bound by the automatic stay or the US Bankruptcy Court order, including so as to prevent them seeking to enforce the Default Judgment outside the US. Indeed, comity with the US Bankruptcy Court may weigh in favour of interim relief. There is a need for international co-operation between the courts of different jurisdictions in order to deal with multi-national frauds.26 As Mr Harris submitted, prior to the hearing the beneficiaries did nothing to unwind the actions taken in the Kentucky Court, and there can be no confidence the Wikeley family defendants will not search to find another device or stratagem to monetise the Default Judgment obtained by fraud. It is also of concern that Mr Regard appears to have been involved.
[57] Stepping back, I consider the balance of convenience and overall justice weigh in favour of continuing the interim orders at this stage pending further order of the Court. As Kea submitted, the orders are sought to restrain evidence of fraud and conspiracy. As Lord Bingham has said, fraud is a thing apart.27 This Court should stand against efforts by beneficiaries of the WFT to undermine the administration of justice by seeking to render ineffective the orders of the New Zealand Courts against a New Zealand company as trustee of a New Zealand trust. This Court has already made orders on the application of the interim liquidators that they may properly not
26 Bank of Crete SA v Koskotas (No 2) [1992] 1 WLR 919 (Ch D) at 925, Millett J. See also
First American Corpn v Zayed [1999] 1 WLR 1154 (EWCA) at 1165.
27 HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] 1 CLC 358 at 368. See also Takhar (Appellant) v Gracefield Developments Limited and others (Respondents) [2019] UKSC 13 at [44].
seek to enforce or act on the Default Judgment anywhere in the world.28 That protection does not obviate the need for the directions sought by Kea. As Kea also submitted, the Wikeley family defendants have demonstrated a willingness to breach and circumvent Court orders and to abuse the processes of the Court.
[58] Turning to the further order sought for disclosure identifying names and contact details of beneficiaries of the WFT referred to above at [48](b), Kea submitted the order is intended to assist in ensuring that the orders are effective, and to reduce the risk of further attempts to circumvent them, by enabling Kea to notify any other beneficiary who might be minded, or prevailed upon by Kenneth, William, Oliver or Gemma, to attempt some other stratagem to undermine the orders of this Court. Kea submitted they will also assist Kea in identifying any other potential defendants.
[59] I consider that order is unnecessary at this stage in this proceeding since Mr Farmer accepted service on behalf of the third, fourth and fifth defendants, and their participation in this proceeding is heralded. It should remain unnecessary if Mr Farmer represents all beneficiaries of the WFT. However, leave is reserved for Kea to reapply. I also noted at the hearing that the interim liquidators could seek directions given Mr Kenneth Wikeley’s refusal to provide such information to them.
[60] I also reserve leave for Kea to bring on its application for the other orders sought in the amended application dated 25 July 2025 at the next call of this matter.
[61] As indicated, the separate 28 March 2025 interim orders were not listed for review at the 5 August hearing so remain in place pending a further hearing. Those orders are to be listed for review at the next call of this matter.
Result
[62] The Interlocutory Orders dated 18 July 2025 are continued pending further order of the Court.
28 Gibson v Wikeley, CIV-2025-404-31. Order of Gault J directing the Interim Liquidators and Wikeley Family Trustee Ltd under the Companies Act 1993 and the Trusts Act 2019 dated 18 July 2025.
[63] The proceeding is to be listed before me for review on Monday 25 August 2025 at 10:00 am. This includes review of the interim orders dated 28 March 2025.
[64]Costs are reserved.
Gault J
Parties / 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 Coupe (plaintiff’s instructing solicitor), Gilbert Walker, Auckland Mr J Farmer KC, Barrister, Auckland
Mr M D Arthur and Mr J Marcetic, Chapman Tripp, Auckland
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