KENNETH DAVID WIKELEY AND KEA INVESTMENTS LIMITED WIKELEY FAMILY TRUSTEE LIMITED (IN INTERIM LIQUIDATION) ERIC JOHN WATSON WIKELEY INCORPORATED USA ASSET HOLDINGS INCORPORATED

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA407/2024
[2024] NZCA 574

BETWEEN	KENNETH DAVID WIKELEY Appellant
AND	KEA INVESTMENTS LIMITED First Respondent WIKELEY FAMILY TRUSTEE LIMITED (IN INTERIM LIQUIDATION) Second Respondent ERIC JOHN WATSON Third Respondent WIKELEY INCORPORATED Fourth Respondent USA ASSET HOLDINGS INCORPORATED Fifth Respondent

Court:	Cooke and Palmer JJ
Counsel:	Appellant in person J B M Smith KC, M C Harris and J L W Wass for First Respondent M D Arthur and J Marcetic for Second Respondent No appearance for Third, Fourth and Fifth Respondents
Judgment: (On the papers)	8 November 2024 at 11.30 am

JUDGMENT OF THE COURT

The proposed appeal is struck out.

____________________________________________________________________

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

CaseChat Overview and Summary

The case before the Court of Appeal of New Zealand involves Kenneth David Wikeley, who filed an appeal against decisions made by the High Court. The respondents include Kea Investments Limited, Wikeley Family Trustee Limited (in interim liquidation), Eric John Watson, Wikeley Incorporated, and USA Asset Holdings Incorporated. The core dispute concerns the formal proof judgments that were entered against the appellant by the High Court, which he sought to set aside. The appeal was dismissed by the High Court, and the appellant sought to challenge this decision in the Court of Appeal.

The primary legal issue that the Court of Appeal had to address was whether it had jurisdiction to hear the appeal against the High Court's decision to dismiss the application to set aside the formal proof judgments. This issue hinged on the interpretation of the Senior Courts Act 2016 and the Court of Appeal (Civil) Rules 2005. Specifically, the court needed to determine if the decision to dismiss the application to set aside the judgments was an interlocutory application requiring leave to appeal, as per section 56(3) of the Senior Courts Act, or if it fell under an exception in section 56(4).

The Court of Appeal found that it did not have jurisdiction to hear the appeal as the decision to dismiss the application to set aside the judgments was an interlocutory application. This conclusion was based on the understanding that appeals from interlocutory applications typically require leave unless they fall under the specific exceptions outlined in section 56(4) of the Senior Courts Act. Given that the formal proof judgments had already determined the proceeding, the Court of Appeal reasoned that the appellant should have sought leave from the High Court before appealing to the Court of Appeal. The court highlighted that any issues arising from the interlocutory application could be addressed in the substantive appeal against the final judgments. Consequently, the Court of Appeal struck out the appeal for lack of jurisdiction.

The Court of Appeal, therefore, dismissed the appeal on the basis that it did not have jurisdiction to hear it, as the decision to dismiss the application to set aside the judgments was an interlocutory application requiring leave to appeal. The Court of Appeal directed that the appeal be struck out, and no further submissions were made by the appellant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established