Kea Investments Limited v Wikely Family Trustee Limited (in interim liquidation)

[2023] NZHC 3532

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2086

[2023] NZHC 3532

BETWEEN

KEA INVESTMENTS LIMITED

Plaintiff

AND

WIKELEY FAMILY TRUSTEE LIMITED (IN INTERIM LIQUIDATION)

First Defendant

KENNETH DAVID WIKELEY
Second Defendant

ERIC JOHN WATSON
Third Defendant

WIKELEY INC.
Fourth Defendant

USA ASSET HOLDINGS INC

Fifth Defendant

Telephone conference:	4 December 2023 and further memorandum on 5 December 2023
Appearances:	JBM Smith KC, M C Harris and JLW Wass for the Plaintiff
Judgment:	5 December 2023

JUDGMENT (NO. 2) OF GAULT J

This judgment was delivered by me on 5 December 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

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

KEA INVESTMENTS LTD v WIKELEY FAMILY TRUSTEE LTD (IN INTERIM LIQUIDATION) [2023]

NZHC 3532 [5 December 2023]

[1]                 My judgment of 17 November 2023 granted (among other things) permanent injunctions against the defendants.1 In respect of the permanent injunctions, I reserved leave in relation to further relief necessary to give effect to these orders.2

[2]                 The plaintiff (Kea) filed an interlocutory application without notice for further orders yesterday. The memorandum of counsel in support indicated that Kea urgently sought interim orders in the expectation that an application for further final relief would be brought on notice to the defendants.

[3]                 I convened a telephone conference yesterday afternoon, in the first instance to address whether there was any reason that application could not proceed on a Pickwick basis. Counsel for Kea explained their concern, in the unusual circumstances of this case, that forewarning Mr Wikeley would risk prejudice to Kea. I recognised that concern. In any event, I sought clarification as to whether further relief pursuant to my reservation of leave in the judgment by formal proof required to be on notice.

[4]                 Counsel for Kea filed a further memorandum today. It clarifies that pursuant to my reservation of leave, Kea seeks the following further relief:

(a)until 28 days after the date on which the default judgment referred to in paragraph 5(a)(i) of the sealed orders of 17 November 2023 is discharged the defendants shall not take any steps, and shall not cause or permit any other person, to:

(i)appoint an additional or replacement trustee of the Wikeley Family Trust or otherwise exercise a power of appointment in respect of that Trust;

(ii)change the proper law of that Trust; and

1      Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liquidation) [2023] NZHC 3260.

2      At [156](a)(v).

[5]                 As Kea seeks further orders pursuant to the reservation of leave granted in the judgment, and that judgment was obtained by way of formal proof under r 15.9 of the High Court Rules 2016, I am satisfied that the further relief may also be considered on a without notice basis.

[6]                 Having reviewed the further affidavit of Mr Graham dated 4 December 2023, sworn in London overnight, addressing developments in the proceedings in Queensland and in the United States, and the memoranda of counsel in support, I am satisfied that in the unusual circumstances of this case the further relief sought is appropriate. Kea is understandably concerned about the prospect of Mr Wikeley causing further steps to be taken in violation of the Court’s injunctions and that he may take a new course now that the assignments to Wikeley Inc have been ruled invalid and remain assets of WFTL as trustee of the WFT.

Result

[7]                 I make the following further order as sought pursuant to leave reserved at [156](a)(v) of my judgment of 17 November 2023:

(a)until 28 days after the date on which the default judgment referred to in paragraph 5(a)(i) of the sealed orders of 17 November 2023 is discharged the defendants shall not take any steps, and shall not cause or permit any other person, to:

(i)appoint an additional or replacement trustee of the Wikeley Family Trust or otherwise exercise a power of appointment in respect of that Trust;

(ii)change the proper law of that Trust; and

Gault J