KENNETH DAVID WIKELEY AND KEA INVESTMENTS LIMITED WIKELEY FAMILY TRUSTEE LIMITED (IN INTERIM LIQUIDATION) ERIC JOHN WATSON WIKELEY INCORPORATED USA ASSET HOLDINGS INCORPORATED
[2024] NZCA 574
•8 November 2024 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA407/2024 |
| BETWEEN | KENNETH DAVID WIKELEY |
| AND | KEA INVESTMENTS LIMITED |
| Court: | Cooke and Palmer JJ |
Counsel: | Appellant in person |
Judgment: | 8 November 2024 at 11.30 am |
JUDGMENT OF THE COURT
The proposed appeal is struck out.
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REASONS OF THE COURT
(Given by Cooke J)
On 24 June 2024, the intended appellant filed a notice of appeal seeking to appeal a decision of the High Court dated 20 May 2024 in which Gault J dismissed the intended appellant’s application to set aside two formal proof judgments under r 15.10 of the High Court Rules 2016.[1] An appeal from the formal proof judgments has already been heard by this Court on 20 May 2024 and judgment is awaited.
[1]Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2024] NZHC 1251 [set aside application judgment]; Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3260 [first formal proof judgment]; and Kea Investments Ltd v Wikeley Family Trustee Ltd (in interim liq) [2023] NZHC 3532 [second formal proof judgment].
On 1 July 2024, Goddard J issued a minute setting out a preliminary view that this Court does not have jurisdiction as an application to set aside a formal proof judgment is a decision on an interlocutory application for which leave to appeal would be required under s 56(3) of the Senior Courts Act 2016. Goddard J invited the intended appellant to withdraw his appeal or seek leave to appeal from the High Court.
At a subsequent telephone conference, the intended appellant advised that he would not be seeking leave, and that he wished to pursue his appeal. Goddard J then gave directions for the purpose of the Court considering striking out the appeal under r 44A of the Court of Appeal (Civil) Rules 2005 on the papers.
No submissions have since been filed by the parties. In an email to the Court dated 5 August 2024, the intended appellant indicated that he would not be filing anything further, and that he respected Goddard J’s view on jurisdiction. By memorandum dated 8 August 2024, the intended first respondent indicated that in its view the Court did not have jurisdiction.
It is clear that this Court does not have jurisdiction and the appeal should be struck out. The intended appellant must first apply for leave from the High Court to appeal under s 56(3) of the Senior Courts Act as the decision of the High Court was a decision on an interlocutory application that did not fall within s 56(4). As summarised in Dokad Trustees Ltd v Auckland Council:[2]
[10] The scheme of s 56 is that appeals as of right are reserved for final determinations in respect of a proceeding. A leave filter applies to appeals from decisions on interlocutory applications in order to avoid delay and unnecessary cost. The underlying assumption is that such decisions are made in the course of a proceeding, and appeal rights should be exercised when the proceeding comes to an end. If a procedural decision has affected the ultimate outcome, that issue can be raised in an appeal against the substantive High Court decision that concludes the proceeding: see s 56(6). I consider that s 56(4) must be interpreted purposively, to apply to decisions that have the effect of bringing to an end the whole of a proceeding. Such a decision is, for the purposes of s 56(4), a decision that dismisses the proceeding.
[2]Dokad Trustees Ltd v Auckland Council [2022] NZCA 177.
Here it is the judgments obtained by formal proof that finally determined the proceeding, not the subsequent decision declining to set them aside. The intended appellant has duly exercised the relevant right of appeal to this Court. Even if leave to appeal had been sought from the High Court, and subsequently this Court,[3] it would likely have been declined given the ability to raise all relevant issues in the substantive appeal to this Court. As Gault J indicated when dismissing the application to set aside the default judgment, the points advanced by the intended appellant are essentially appeal points.[4]
[3]Senior Courts Act 2016, s 56(3) and (5).
[4]Set aside application judgment, above n 1, at [35].
For these reasons, the proposed appeal is struck out for lack of jurisdiction.
Solicitors:
Gilbert Walker, Auckland for First Respondent
Chapman Tripp, Auckland for Second Respondent
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