KEA INVESTMENTS LTD v WIKELEY FAMILY TRUSTEE LTD (IN INTERIM LIQUIDATION) [2023] NZHC 2407

KEA INVESTMENTS LTD v WIKELEY FAMILY TRUSTEE LTD (IN INTERIM LIQUIDATION) [2023]NZHC 2407 [31 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-2086[2023] NZHC 2407BETWEEN KEA INVESTMENTS LIMITEDPlaintiffAND WIKELEY FAMILY TRUSTEE LIMITED(IN INTERIM LIQUIDATION)First DefendantKENNETH DAVID WIKELEYSecond DefendantERIC JOHN WATSONThird DefendantWIKELEY INCFourth DefendantUSA ASSET HOLDINGS INCFifth DefendantHearing: 13 July 2023Appearances: JBM Smith KC, JLW Wass and S T Coupe for the PlaintiffM D Arthur for the interim liquidators of the First Defendant(excused during the hearing)A F Pilditch KC, T Mullins and E Armstrong for the SecondDefendantNo appearance by or for the Third, Fourth and Fifth DefendantsJudgment: 31 August 2023JUDGMENT OF GAULT J(Extension of time, leave to appeal and stay)This judgment was delivered by me on 31 August 2023 at 10:30 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy Registrar[1] The second defendant (Mr Wikeley) seeks an extension of time and leave toappeal this Court's judgment dated 10 March 2023.1 That judgment dismissed anapplication by the first defendant (WFTL) and Mr Wikeley to dismiss or stay theproceeding on jurisdiction or forum non conveniens grounds, set aside their protest tojurisdiction, continued interim orders pending further order of the Court and dismissedKea's application for further interim orders. Only the forum non conveniens groundis pursued. Mr Wikeley also seeks interim relief (stay) pending appeal.[2] The application is strongly opposed by the plaintiff (Kea).[3] The interim liquidators of WFTL (appointed since the judgment) do notsupport Mr Wikeley's application.[4] The third defendant (Mr Watson) has taken no steps in the proceeding.Nor have the fourth and fifth defendants (added since the judgment).Factual background[5] The factual background to the proceeding was summarised in the judgment at[3]-[24] and need not be repeated here. In essence, Kea claims that the defendantshave engaged in a worldwide conspiracy to defraud Kea, including by obtaining adefault judgment in favour of WFTL as trustee of the Wikeley Family Trust againstKea in Kentucky, USA for US$136,290,994 (default judgment) based on an agreement(Coal Agreement) that Kea says is a forgery.Judgment dated 10 March 2023[6] As indicated, the only part of the judgment that Mr Wikeley (but not WFTL)seeks to appeal is the decision to dismiss or stay the proceeding on the ground of forumnon conveniens.[7] Relevantly, the judgment concluded:1 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466.(a) The applicable law did not weigh either way since no relevant issue onwhich foreign law would be required had been identified.2(b) In substance, the dispute is whether the defendants are conspiring toinjure Kea by fraudulent means; that is, perpetuating a fraud againstKea.3(c) On the available evidence, the Kentucky Court is not the appropriateforum for determination of Kea's claims against the defendants for thefollowing reasons.(d) First, I doubted Kentucky is an available forum for Kea's claims.4Professor Silberman's evidence indicated it is not. The Kentucky Courtdid not appear to have any jurisdiction over the defendants Mr Wikeleyand Mr Watson, who were not parties to WFTL's default judgmentproceeding. Even in relation to WFTL, despite its default judgmentagainst Kea, which indicated that WFTL had submitted to the KentuckyCourt's jurisdiction for some purposes, there was disputed evidence asto whether the Kentucky Court has jurisdiction over WFTL in relationto Kea's claim that WFTL is party to a conspiracy to injure Kea byfraudulent means. Even the evidence of Mr Regard, WFTL's Kentuckycounsel, suggested only that Kea could counterclaim if the defaultjudgment were set aside. Further, the Kentucky Court is not anavailable forum for Kea's second cause of action.(e) Secondly, even if it were an available forum, Kentucky is not the mostappropriate forum having regard to several factors:5(i) The New Zealand Court has a greater interest in regulating theconduct of WFTL, a New Zealand company acting as trustee ofa New Zealand trust.2 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [81].3 At [82].4 At [83].5 At [84]-[87].(ii) The BVI Court will look to the New Zealand Court to make aconclusive finding on the conspiracy/fraud claim and willrecognise such a judgment because this Court has jurisdictionover WFTL as of right.(iii) Kea's second cause of action will be pursued in New Zealandin any event and this Court will have to determine whether thedefendants are perpetrating a fraud in that context.(iv) The location of the parties and witnesses does not favourKentucky or BVI.(v) In relation to the default judgment, I accepted that Kea has takensteps in Kentucky to set it aside but, insofar as it was relevant,Kea had not submitted to the jurisdiction of the Kentucky Court.(vi) Reference to the risk of inconsistent judgments assumes thatsubstantive proceedings will continue in both jurisdictions,which is not an appropriate assumption when addressing forumconveniens (as opposed to the need for ongoing interim anti-suitrelief).(vii) I did not accept that Kea had tactically delayed – delay was nota factor weighing against New Zealand being the appropriateforum.(f) Nor was it suggested the BVI Court is an appropriate forum fordetermination of Kea's claims against the defendants. The BVI Courtdoes not have jurisdiction over the defendants in relation to Kea'sconspiracy claim.[8] I therefore concluded that New Zealand is the appropriate forum.66 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [88].Subsequent steps[9] Following the judgment of 10 March 2023 setting aside the first and seconddefendants' protest to jurisdiction, most of the chronology of events is a matter ofrecord. Before setting out this chronology, I note that Mr Smith KC, for Kea, objectedto the admissibility of a substantial part of the affidavit in support of Mr Wikeley'sapplication sworn by his Queensland solicitor, Mr Dowd, on the basis it wasinadmissible hearsay or opinion. Rather than addressing individual admissibilityobjections, Mr Pilditch KC, for Mr Wikeley, focused on the common ground that therewas a period during which Mr Wikeley was without New Zealand legal representation.Mr Pilditch also submitted that the Court should not draw inferences adverse toMr Wikeley given parallel contempt proceedings in Queensland, to which I will referbelow.[10] On 17 March 2023, the solicitors for WFTL and Mr Wikeley, Wilson Harle,informed the Court that WFTL and Mr Wikeley intended to seek leave to appeal inrespect of the dismissal of their application to dismiss or stay the proceeding and thesetting aside of their protest to jurisdiction and that they intended to instruct newcounsel. They sought that limited timetable orders be made to allow those steps to betaken.[11] On 28 March 2023, Mr Wikeley incorporated Wikeley Inc.[12] On 29 March 2023, I directed the defendants to file a defence by 14 April 2023but deferred making discovery orders as sought by Kea.[13] On 30 March 2023, Mr Wikeley as director of WFTL purported to assign thedefault judgment and the Coal Agreement to Wikeley Inc.[14] On 3 April 2023, Wilson Harle filed an interlocutory application seeking anorder declaring that Mr Browne had ceased to be the solicitor on the record for WFTLand Mr Wikeley, together with an (unsworn) affidavit in support.7[15] On 4 April 2023, Wikeley Inc applied to the Kentucky Court to be substitutedas plaintiff in the Kentucky proceeding on the basis of the purported assignments.That motion was filed by the Kentucky lawyers for WFTL (as trustee of the WikeleyFamily Trust) and Wikeley Inc.8[16] On 6 April 2023, Kea applied without notice to this Court for further interimorders having discovered that Mr Wikeley had taken steps purporting to divest WFTLof the default judgment and otherwise to avoid the effect of the New Zealand Courtorders. I was satisfied that further interim orders should be made on a without noticebasis.9 I found that it appeared likely that Mr Wikeley and WFTL had acted in breachof this Court's earlier interim orders by assigning or purporting to assign the CoalAgreement and the very substantial default judgment.10 In the unusual circumstances,I considered it was just and equitable that WFTL be put into interim liquidation.[17] On 11 April 2023, any application for leave to appeal the 10 March 2023judgment was due (20 working days after judgment). No application was filed, norwas any other correspondence received.[18] Also on 11 April 2023, Mr Wikeley incorporated USA Asset Holdings Incin Kentucky, and the following day purported to appoint that company as the trusteeof the Wikeley Family Trust and to change the law of the trust.7 The accompanying memorandum indicated that the application and affidavit had not been servedon Kea (referring to counsel's fiduciary obligations and obligations of confidentiality) but that theplaintiff's solicitors would be advised by email that the documents had been filed. The documentswere subsequently released to the new solicitors.8 Wikeley Inc also filed motions that it would bring upon substitution to compel discovery fromKea and an anti-suit injunction restraining Kea from continuing this proceeding.9 These orders included adding Wikeley Inc as a defendant.10 Minute dated 6 April 2023 at [7].[19] On 12 April 2023, Kea commenced proceedings in the Supreme Court ofQueensland seeking ancillary interim relief. That Court made without notice ordersin support of this proceeding under s 25 of the Trans-Tasman Proceedings Act 2010(Australia).[20] On 13 April 2023, Mr Wikeley advised the interim liquidators of WFTL thathe had replaced WFTL as trustee of the Wikeley Family Trust with the Kentuckycompany, USA Asset Holdings Inc. Mr Wikeley also stated to the interim liquidatorsthat their appointment was an aspect of a campaign of oppression and intimidation bythe directors of Kea. He called upon them to deliver up any assets or property undertheir control.[21] Also on 13 April 2023, the Kentucky lawyers for Wikeley Inc filed a reply inthe Kentucky proceeding pursuing the 4 April 2023 motion for substitution.[22] On 14 April 2023, Mr Wikeley's statement of defence in this proceeding wasdue. No statement of defence was filed. That same day, Kea filed a memorandumforeshadowing the possibility of an application for judgment by formal proof if nodefence was filed.[23] On 17 April 2023, following a telephone conference, I made an order declaringthat Mr Browne had ceased to be the solicitor on the record for WFTL and Mr Wikeley,on terms including that unless and until Mr Wikeley filed an alternative address forservice, any further documents may be served on Mr Wikeley by email.11[24] At that telephone conference Kea indicated that, as the deadline for statementsof defence by the first to third defendants had expired without defences being filed orserved, it sought to proceed by way of formal proof but intended to notify thosedefendants so that they had an opportunity to seek leave to file a statement ofdefence.12 The minute following that telephone conference was provided toMr Wikeley that evening.11 Minute dated 17 April 2023 at [4].12 At [8], citing High Court Rules 2016, r 15.9(3). Kea also sought to abridge time for Wikeley Incto file a statement of defence.[25] On 21 April 2023, Kea's solicitors emailed Mr Wikeley (and Mr Watson)advising that the hearing of the formal proof application had been fixed for 17 May2023. The email expressly warned Mr Wikeley of the consequences of failing to takesteps before the hearing. Mr Wikeley did not reply.[26] On 15 May 2023, Mr Dowd received and acknowledged an email andattachment from Kea's solicitors advising of the formal proof hearing to take place on17 May 2023. The attachment was a copy of Kea's submissions for the hearing.[27] On 17 May 2023, the substantive one day hearing proceeded by way of formalproof. Judgment was reserved.[28] On 1 June 2023, Mr Dowd filed in this proceeding a notice of change ofsolicitor and a memorandum recording that Mr Wikeley wished to seek a stay of theNew Zealand proceedings pending the contempt hearing in Queensland and thento bring an application so that he could defend the proceeding in New Zealand thatwas subject to a formal proof hearing on 17 May 2023 and to file a defence andevidence and have the defence considered by the Court. That memorandum did notsignal any intention to seek leave to appeal.[29] On 22 June 2023, Mr Wikeley's new solicitor, Mr Mullins, filed a notice ofchange of representation and the present application, seeking an extension of time andleave to appeal my judgment of 10 March 2023 and interim relief (stay) pendingappeal, together with an affidavit from Mr Dowd. An amended interlocutoryapplication was filed on 6 July 2023.Matters for determination[30] There is an overlap between the components of Mr Wikeley's application,particularly seeking extension of time to appeal and seeking leave to appeal unders 56(3) of the Senior Courts Act 2016, but it is convenient to deal with the componentssequentially:(a) extension of time;(b) leave to appeal; and(c) interim relief (stay).[31] I preface consideration of these by noting the context Mr Pilditch emphasised– that the decision that Mr Wikeley wishes to appeal is the foundation for the parallelproceeding in Queensland to punish Mr Wikeley for contempt, in which his liberty isat stake. Mr Pilditch submitted the applications bring Mr Wikeley's right to silence,to be presumed innocent, and to access the courts to the fore. I will return to thissubmission.Extension of timeApplicable principles[32] In Almond v Read,13 the Supreme Court identified the applicable factors on anapplication for an extension of time to appeal. That case concerned an extension oftime to bring a substantive first appeal but it is common ground that those factors arerelevant even where there is no appeal as of right and leave to appeal is requiredirrespective of an extension of time.14 The factors are:15(a) the length of the delay, including how quickly the applicant sought torectify any mistake as to the filing date;(b) the reasons for the delay, where it will be particularly relevant to knowwhether the delay resulted from a deliberate decision not to proceedfollowed by a change of mind, from indecision, or from error orinadvertence, there being less justification for an extension of time inthe first two situations;(c) the conduct of the parties, particularly of the applicant, such as a historyof non-cooperation or delay;13 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.14 Jones v New Zealand Bloodstock Financing and Leasing Ltd [2021] NZCA 213 at [19].15 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].(d) any prejudice or hardship to the respondent, such that significant delayand significant prejudice may lead to an extension being refused evenwhere the appeal is strongly arguable; and(e) the significance of the issues raised by the proposed appeal, includingwhether it gives rise to matters of public interest.[33] Ultimately, the question is what the interests of justice require.Length of delay[34] Since the last day to apply for leave to appeal was 11 April 2023 and theapplication for an extension of time was filed (without earlier signal) on 22 June 2023,the length of Mr Wikeley's delay was over two months or 10 weeks. During thatperiod, the substantive formal proof hearing took place, with judgment reserved.There is no suggestion of miscalculation or not knowing the leave to appeal periodand the evidence indicates that Mr Wikeley knew about the formal proof hearing.In the context of a challenge to jurisdiction and a proceeding warranting urgency, thisdelay was not insignificant.Reasons for the delay[35] As to the reasons for this delay, Mr Pilditch submitted that:(a) Mr Wikeley wished to apply for leave to appeal;(b) he was without representation in New Zealand from 15 March 2023until 19 June 2023;(c) he attempted unsuccessfully to obtain replacement solicitors;(d) since 20 April 2023, he has been facing the contempt proceeding inQueensland;(e) the matter is serious and complex and in no way one that aself-represented person could be expected to advance; and(f) Mr Dowd did not appreciate the significance of the formal proofhearing.[36] Mr Pilditch did not suggest this was a case of a mistaken slip or omission.However, he did not accept it could be inferred that Mr Wikeley had disavowed theexpressed intention to appeal – in the sense that he made a deliberate decision not toproceed with an appeal and then changed his mind.[37] Mr Smith submitted that Mr Wikeley does not have a valid excuse for the delay.Having communicated a decision to apply for leave to appeal in time, his subsequentfailure to do so cannot be other than as a result of a deliberate choice – to devote histime and resources to taking steps calculated to avoid the effect of this Court's orders.[38] There is no affidavit from Mr Wikeley. Even taking a conservative approachto his right to silence and privilege against self-incrimination given the Queenslandcontempt proceeding, he could and should have sought to explain the reason for hisdelay in applying for leave to appeal. Mr Dowd could not provide admissible evidenceon that issue at least prior to expiry of the leave to appeal period on 11 April 2023 andhis involvement from 23 April 2023 (after the Queensland Court ordered the arrest ofMr Wikeley on 21 April 2023). Mr Dowd's evidence about this early period waslimited to hearsay and opinion about Mr Wikeley's stress and medical conditionfollowing delivery of the 10 March 2023 judgment, and hearsay about Mr Wikeley'sfee dispute with Wilson Harle, culminating in the (objected to) assertion thatMr Wikeley was not able to obtain legal representation to file an appeal in that time(by 11 April 2023). The Queensland proceeding cannot have caused any earlier failureto seek new legal representation in New Zealand.[39] The evidence that Mr Wikeley attempted unsuccessfully to obtain solicitors toreplace Wilson Harle is underwhelming. Mr Dowd's reference to steps taken to obtainnew solicitors to appeal the judgment is hearsay. No documents are exhibited. Evenadmitting Mr Dowd's account that Mr Wikeley was in contact with Mr Rowan ofCS Law, Levin from 21-27 March 2023,16 and two Auckland firms on or about16 It is unclear why Mr Rowan could not address this since he provided an affidavit for the Kentuckyproceeding on 15 May 2023.27 April 2023, Mr Wikeley took no steps between 27 March and 27 April 2023 toobtain replacement lawyers to pursue an application for leave to appeal. Nor did headvise Kea's solicitors that he was unable to obtain legal representation but still wishedto apply for leave to appeal as soon as he reasonably could. As indicated, he did notreply to the 21 April 2023 email from Kea's solicitors.[40] After 27 April 2023, Mr Wikeley also took no steps to obtain replacementlawyers or advise Kea's counsel that he still wished to apply for leave to appeal beforethe formal proof hearing on 17 May 2023, nor subsequently until just days before22 June 2023. Even Mr Dowd indicated a contrary position when he purported to filea notice of change of solicitor on 1 June 2023. At this stage, I make no finding as towhether Mr Dowd must have appreciated the "seriousness" of the formal proofhearing when he acknowledged receipt of Kea's email and submissions in support on15 May 2023. Mr Wikeley and Mr Dowd were at least aware that the formal proofhearing was to take place on 17 May 2023.[41] Despite Mr Dowd's (inadmissible) references to Mr Wikeley's stress andmedical condition and the fee dispute with Wilson Harle, Mr Wikeley appears to havehad no difficulty engaging solicitors and counsel to pursue his interests in otherjurisdictions, including in Australia and the USA, during the same period. There is noevidence of impecuniosity. Also, as Mr Smith submitted, Mr Wikeley has been a partyto significant civil litigation in the past. He is no novice when it comes to New Zealandcourt processes.17[42] I conclude that Mr Wikeley has not provided satisfactory evidence of thereason(s) for his delay in applying for leave to appeal. In particular, there isinsufficient evidence to establish that the reason for the delay was his inability toobtain replacement counsel. I next turn to address Mr Wikeley's conduct during thisperiod before commenting further on the reason for the delay.17 Jacomb v Wikeley [2013] NZHC 707; Jacomb v Wikeley [2013] NZHC 3034; Jacomb v Wikeley[2013] NZHC 3368; Wikeley v Jacomb (as trustees of the Genset Trust) [2014] NZCA 146; andEdel Metals Group Ltd v Geier Ltd [2017] NZCA 359.Conduct[43] In relation to Mr Wikeley's conduct, Mr Pilditch submitted that contempt hasnot been established and that no adverse inference could be drawn in relation toMr Wikeley's intention given the parallel contempt proceeding which he characterisedas essentially criminal in nature. Therefore, he submitted, Mr Wikeley has notresponded to those allegations in this proceeding. While acknowledging that theparticulars of the alleged contempt relate to conduct from 12 April 2023, Mr Pilditchsubmitted that the earlier period would be part of the narrative in the contemptproceeding and that no inferences should be drawn even in relation to the steps takenbetween 28 March and 11 April 2023.[44] Mr Smith accepted that this Court should not address issues of contempt, butsubmitted that the Court could and should take into account the steps taken byMr Wikeley and draw inferences on the basis that it could not be suggested those stepswere taken unintentionally. Kea relies on Mr Wikeley's conduct as disclosed by therecord and this Court's findings of 6 April 2023 to demonstrate that Mr Wikeleydevoted his effort and resources since 30 March 2023 to an attempt to evade the veryorders he now seeks to appeal.[45] Mr Smith submitted that Mr Wikeley does not deny that he has breached ordersof this Court and has not attempted to explain or justify his conduct. Mr Smithsubmitted that assignment of the Coal Agreement and the default judgment did nothappen by accident. He referred to "the paramount importance which the court mustattach to the prompt and unquestioning observance of court orders".18 Nor, Mr Smithsubmitted, has Mr Wikeley attempted to rectify his actions or suggested anywillingness to do so as a term of obtaining permission to appeal or otherwise. He hascontinued to take steps seeking to enforce the default judgment. Mr Smith submittedit may be inferred that Mr Wikeley intends to take the benefit of an appeal if he obtainsleave and wins but does not intend to comply with any orders of the Court if he loses.Mr Smith submitted the application cannot be described as bona fide.18 Siemer v Stiassny [2007] NZCA 581, [2008] 3 NZLR 22 (CA) at [41].[46] I expressly avoid making any finding as to contempt. I also draw no adverseinference as to Mr Wikeley's intentions relating to alleged breaches of Court orders.That, however, does not preclude reference to Mr Wikeley's actions which are evidentfrom the record including those already addressed in my minute of 6 April 2023.As Mr Smith submitted, Mr Wikeley has put his conduct in issue by bringing thisapplication.[47] During the period between 27 March and 27 April 2023 when Mr Wikeley tookno steps to obtain replacement lawyers to pursue an application for leave to appeal,he took steps outside New Zealand, as indicated above:(a) He purported to assign the default judgment and the Coal Agreement toWikeley Inc, a new company he had incorporated. Wikeley Inc thenapplied to the Kentucky Court to be substituted as plaintiff in theKentucky proceeding on the basis of the purported assignments.On 6 April 2023, I found that it appeared likely that Mr Wikeley andWFTL had acted in breach of this Court's earlier interim orders byassigning or purporting to assign the Coal Agreement and the verysubstantial Kentucky default judgment.19(b) On 11 April 2023, he incorporated USA Asset Holdings Inc inKentucky, and the following day (12 April 2023) purported to appointthat company as the trustee of the Wikeley Family Trust and to changethe law of the trust. On 13 April 2023, he advised the interimliquidators of WFTL that he had replaced WFTL as trustee of theWikeley Family Trust with that company.[48] My 6 April 2023 finding that it appeared likely that Mr Wikeley and WFTLhad acted in breach of this Court's earlier interim orders reflected the fact that thisCourt's 12 December 2022 interim order provided that "none of the defendants shallsell, assign, gift, grant any security interest in or over, or otherwise in any way19 Minute dated 6 April 2023 at [7]. Subsequently, Mr Wikeley said in an affidavit in the Queenslandproceeding that following the orders in Queensland Mr Regard told him that he no longercontrolled Wikeley Inc having been removed as president by the majority shareholders, being hissons, Oliver Leonard Wikeley and William Kennedy Wikeley.whatsoever transfer or encumber any interest any of them may have, directly orindirectly, in any rights any of them may have under or in connection with the CoalAgreement and/or the Default Judgment".[49] Further, the appointment of a new company as trustee of the Wikeley FamilyTrust on 12 April 2023 also appears to have contravened this Court's 12 December2022 interim order which provided that "WFTL and Mr Wikeley shall not take anysteps, and shall not cause or permit any other person, to appoint an additional orreplacement trustee of the Wikeley Family Trust".[50] I comment no further on the implications of these actions except to say inrelation to the reason proferred for Mr Wikeley's delay that, given the steps he tookbefore service of the without notice orders in Queensland, it is more likely that theAustralian contempt proceeding only later caused him to seek to appeal in order tochallenge this Court's jurisdiction to continue interim orders. Mr Wikeley's actionsalso count against an extension of time to apply for leave to appeal.Prejudice[51] Mr Pilditch submitted that prejudice to Kea arising from the formal proofhearing having occurred and potential delay to final orders is reduced since a formalproof judgment will in any event remain subject to challenge. He submitted thatprejudice could be addressed by way of costs and commitment to a fast track one dayappeal.[52] Mr Smith submitted that Kea has suffered material prejudice, preparing fordiscovery on the basis the Wikeley defendants would participate in the proceeding andthen preparing for the formal proof hearing. He submitted an appeal would meancontinued delay with no confidence in this case of compliance with a condition thatany appeal is pursued expeditiously. He also submitted that the effect of Mr Wikeley'sconduct on the Court and public resources is a relevant consideration.[53] I accept Kea has suffered prejudice particularly in the form of cost in relationto the formal proof hearing, which would not have proceeded pending a possibleappeal, and in terms of delay. An appeal now will mean further delay in a case thathas been given priority due to urgency given attempts to enforce the default judgmentin other jurisdictions. Given Mr Dowd's notice of 1 June 2023 before judgment onthe formal proof application, I place little weight on the suggestion that such ajudgment will in any event remain subject to challenge. However, as Mr Pilditchsubmitted, further prejudice could be addressed by a condition that any appeal ispursued expeditiously and an appropriate costs order. Even so, prejudice due to delayremains a factor. The wasted court time is relevant but would not in itself be decisive.Significance of the issues[54] Mr Pilditch submitted that in any event the significance of the appeal, both tothe parties and more generally in relation to the core issue of comity, eclipses anyconcern about Mr Wikeley's conduct and means that an extension should be granted.He submitted that, as an issue of general public importance arising in anti-suitinjunction cases, there needs to be a very strong subject-matter connection whereforum is being asserted for the purpose of making the orders sought in this proceeding.He submitted this has implications for all the defendants.[55] Mr Wikeley also says the proposed appeal is of significant personal importanceboth in disposing of the New Zealand proceeding – save as to recognition of the defaultjudgment in New Zealand – and in relation to his position in respect of the variousinterim orders including the contempt proceeding in Queensland.[56] Mr Smith submitted there is no public interest in the issues that count in favourof leave, and the appeal is not seriously arguable. He submitted that extending timefor Mr Wikeley to apply for leave to appeal in these circumstances would obstruct theadministration of justice and would send a signal that even egregious unexplaineddelay will be ignored – it is difficult to imagine a less meritorious case and, if anextension is given in this case, it is hard to imagine a case when one would not begiven. He submitted that would call into question the purpose of the time limit in therules.[57] I consider the proposed appeal does not raise an issue of public interest.However, I accept it is of some significance to the parties.[58] In the context of an extension of time to bring a general appeal, a decision torefuse an extension of time based substantially on the lack of merit of a proposedappeal should be made only where the appeal is clearly hopeless.20 This is differentfrom the test where leave to appeal is required in any event, considered below.For present purposes, I do not treat the appeal as clearly hopeless.Conclusion[59] The delay, reasons for it, Mr Wikeley's conduct and prejudice to Kea all weighagainst an extension of time to seek leave to appeal. I do not consider that thesignificance of the proposed appeal to Mr Wikeley outweighs these factors such thatan extension of time should be granted. On the basis of these relevant factors,I consider that Mr Wikeley's request for an extension of time should be declined.[60] However, I acknowledge that the ultimate question is what the interests ofjustice require. As this is also the ultimate question when considering leave to appeal,and given some overlap between the relevant factors, I will go on to address leave toappeal and conclude what the interests of justice require.Leave to appealApplicable principles[61] It is common ground that leave to appeal is required under s 56(3) of the SeniorCourts Act 2016. The principles governing interlocutory appeals are well established.They were summarised by the Court of Appeal in Tomar v Tomar:21[6] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J appropriatelyobserved that the requirement for leave to appeal should serve as a filteringmechanism to ensure that unmeritorious appeals of interlocutory orders, orappeals of interlocutory orders of no great significance to either the parties ormore generally, do not unnecessarily delay the proceedings in which the orderswere made.22 The following considerations were recognised as relevant on anapplication for leave to appeal:23(a) A high threshold exists.20 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39](c).21 Tomar v Tomar [2021] NZCA 419. See also recently Sneesby v Southern Response EarthquakeServices Ltd [2023] NZCA 206.22 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].23 At [9] and [14], citing A v Ministry of Internal Affairs [2017] NZHC 887.(b) The applicant must identify an arguable error of law or fact.(c) The alleged error should be of general or public importancewarranting determination or otherwise of sufficient importance to theapplicant to outweigh the lack of general or precedential value.(d) The circumstances must warrant incurring further delay.(e) The ultimate question is whether the interests of justice are served bygranting leave.[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Councilindicated that considerations similar to the principles applicable toapplications under the former s 24G of the Judicature Act 1908, as explainedin Meates v Taylor [Leave],24 apply to applications under s 56(5) of the SeniorCourts Act, stating:25We agree that leave to appeal should only be granted where thesignificance or implications of an arguable error of fact or law, eitherfor the particular case or for the applicant or as a matter of precedent,warrants the further delay which the appeal process would involve.Arguable error?[62] Mr Wikeley says that this Court erred in its assessment of:(a) the subject matter connections between the claim and the competingfora (New Zealand and Kentucky);(b) the related proceedings in Kentucky and their impact on the forumconveniens issue; and(c) the law applicable to the claim.[63] He also says:(a) While the relief claimed in the second cause of action may well havebeen permissible to proceed on in New Zealand, it was always mootbecause no one ever threatened to enforce the default judgment here.24 Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.25 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]. I note that s 56(5)applies where an application for leave is made to the Court of Appeal following the declining ofleave by the High Court.(b) There were already proceedings on foot in Kentucky in which Kea wasactively participating. There, Kea raised similar or the same argumentsthat it raises in this proceeding. Kea continued to participate in theKentucky proceeding after commencing this New Zealand proceedingby filing a notice of appeal in Kentucky.(c) Extraordinarily, the purpose of the proceeding here was to enjoinAustralian and New Zealand parties from taking steps including in theforum where the Kentucky courts were seized of the matter.(d) So, allowing these proceedings to continue was contrary to principlesof judicial comity.[64] He says that just because he and WFTL are in New Zealand or Australia, andtherefore able to be enjoined personally, does not make it the role of this Court to orderthem to do or refrain from doing things elsewhere in the world.[65] He emphasises that the final relief sought by Kea in this proceeding isexceptional, submitting that the relief sought in the amended statement of claim isprimarily directed at preventing Mr Wikeley and WFTL from enforcing the judgmentobtained by WFTL in Kentucky and that the Court is effectively being asked toindirectly interfere with, and override, a judgment of a foreign court in that foreignjurisdiction. He submits that very few anti-enforcement injunctions appear to havebeen granted in any common law jurisdiction and that the making of the order mustbe exercised "sparingly and with caution".26 In particular, as indicated, it is submittedthat given the acute issues of comity that arise in relation to anti-enforcementinjunctions, the New Zealand court must have a very strong subject-matter connectionto the claim seeking such remedy before displacing the foreign court as the naturalforum for the dispute.26 Lu v Industrial and Commercial Bank of China (NZ) Ltd [2020] NZHC 402 at [102].[66] Mr Wikeley says that the subject matter connection to New Zealand is weakgiven there is no New Zealand exclusive jurisdiction clause, Kea's claim primarilyrelates to parties not based in New Zealand, acts done overseas, issues currently beforethe courts in Kentucky and BVI, witnesses overseas and seeks relief that would impactthe judgment of foreign courts. He particularly disputes the Court's findings that theNew Zealand Court has a greater interest than the Kentucky Court in regulating theconduct of WFTL as a New Zealand company acting as a trustee of a New Zealandtrust, that the location of parties and witnesses do not favour Kentucky or BVI andthat Kea has not submitted to the jurisdiction of the Kentucky Court. In oralsubmissions, Mr Mullins, for Mr Wikeley on this part of the application, submittedthat Professor Bermann's affidavit on US law indicated that Kentucky would havejurisdiction over the defendants.[67] Mr Wikeley says the Court erred in assessing the Kentucky proceeding and itsimpact – the judgment obtained, enforcement steps in BVI and Kea's steps to set themaside. He says that as a matter of substance, not form, the dispute stems from actsalleged to have taken place in Kentucky and issues that are before the Kentucky Court.He says the essence of Kea's claim is that Mr Wikeley and WFTL fraudulentlyprocured the default judgment in the Kentucky Court. He points to the relief that Keais seeking in the Kentucky Court of Appeals.[68] In relation to the applicable law, he says the Court was wrong to say it did notweigh either way. He says it favours Kentucky.[69] Mr Mullins acknowledged that a decision on whether New Zealand is theappropriate forum is a discretionary decision so the Court of Appeal will not interfereunless a material error of principle has been made or the decision is plainly wrong.27[70] Mr Wass, for Kea on this part of the application, submitted that in the contextof this case, the threshold for leave to appeal should be higher – whether there is aserious prospect of a different outcome.27 See Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [29].[71] I accept the importance of comity. It was addressed by reference to theauthorities and reflected in the initial (without notice) judgment28 and the (on-notice)judgment of 10 March 2023.29 The need for caution is most apposite in relation to theanti-suit or anti-enforcement relief sought. In that regard, I accept thatanti-enforcement injunctions will be granted only in rare circumstances. Even so,in terms of the threshold jurisdiction requirement, I see little merit in the distinctionbetween that of a "sufficient" subject matter connection, as I summarised theauthorities, and a "very strong" subject matter connection, as Mr Wikeley nowcontends. That was not the way forum was contested at the earlier hearing. The terms"very strong" or "strong" are not used in the cases. This is not a material error ofprinciple. Comity is not at risk here.[72] Turning to the Court's conclusion that New Zealand (rather than Kentucky) isthe appropriate forum for Kea's claim for the reasons set out in the judgment(summarised above at [7]), I deal first with whether the evidence showed thatKentucky is an available forum for Kea's claim. The onus was on Mr Wikeley toidentify a more appropriate forum.[73] I accept that Professor Bermann's affidavit said that in a tort of conspiracyclaim, the steps in the alleged fraud and conspiracy, if they occurred, would havelargely occurred in Kentucky, and that irrespective of the validity of the forumselection clause, a court of Kentucky would be competent to adjudicate the case beforeit. Even if this is taken to mean a case brought by Kea, Professor Silberman said thatthe US Supreme Court in Daimler AG v Bauman clarified the due process test forgeneral jurisdiction as one that required that a corporate defendant be "essentially athome" in the forum state and pointed to the paradigm situations of its place ofincorporation and principal place of business being in that state.30 In any event, WFTLis not contesting forum conveniens.28 Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881 at [38]-[40], [43], [66]-[68]and [72].29 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [92] and [98].30 Daimler AG v Bauman 571 US 117 (2014).[74] Professor Silberman also said that the Supreme Court's post-InternationalShoe v Washington cases have emphasised that an affiliation between the defendantand the forum is a critical requirement and that a connection between the defendantand the subject matter of the litigation is not itself sufficient to satisfy due process.31She believed Professor Bermann was wrong. Although focusing on jurisdiction overKea, Professor Silberman's summary of the law applies also to the defendants. Theevidence did not show that the Kentucky Court would have jurisdiction over Kea'sconspiracy claim against Mr Wikeley or Mr Watson.[75] In any event, this Court's "doubt" that Kentucky was an available forum wasmerely one factor in the assessment that New Zealand was the appropriate forum.In relation to the other factors, particularly the three disputed findings (referred to at[66] above), I do not consider there is an arguable error:(a) The New Zealand Court has a real interest in supervising the conductof WFTL as a New Zealand company acting as a trustee of aNew Zealand trust. That extends to WFTL's conduct outsideNew Zealand. As indicated, WFTL does not contest forum conveniens.(b) The location of parties and witnesses do not favour Kentucky or BVI.The Court's reasons speak for themselves.(c) Insofar as it is relevant, Kea has not submitted to the jurisdiction of theKentucky Court.[76] I also do not accept that the second cause of action should be put aside as moot.The evidence showed that a New Zealand decision would be recognised in BVI whereMr Wikeley has sought to enforce the Kentucky judgment.[77] I turn to the alleged error in assessing the Kentucky proceeding and its impact.As in the judgments,32 I acknowledge that Kea has also taken steps to set aside theKentucky default judgment (without submitting to the jurisdiction). It should not be31 International Shoe v Washington 326 US 310, 316 (1945).32 Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881 at [70] and [74]; KeaInvestments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [86], [89] (fn 61) and [91].criticised for doing so. Moreover, I do not consider that doing so means the KentuckyCourt has jurisdiction over Kea's tort of conspiracy claim. The Kentucky Court statedit need not determine if there is meritorious defence raised by Kea or if Kea can makea showing of no prejudice to WFTL.33[78] Given the Kentucky appeal, I reserved leave as to whether it was appropriateto stay the New Zealand proceeding against WFTL or to extend time for WFTL'sstatement of defence. That was not sought but in any event is a separate issue fromwhether the New Zealand Court is the appropriate forum for Kea's claim.Mr Wikeley's criticisms of the interim relief are misplaced since the interim orderswere extended by consent and are not the subject of his current application.[79] Accepting that assessing forum conveniens is a question of substance, not form,this is not an ordinary commercial dispute. Kea claims the defendants are conspiringto injure it by fraudulent means – perpetuating a (worldwide) fraud against it. That isthe substance of Kea's claim, rather than characterising the proceeding as being"primarily directed at preventing Mr Wikeley and WFTL from enforcing the judgmentobtained by WFTL in Kentucky".[80] A challenge to the Court's finding in relation to applicable law was not pursuedin oral submissions. That finding was on the basis that no relevant issue on whichforeign law would be required had been identified.34 Further, I considered there wasa good arguable case that New Zealand law governs Kea's conspiracy claim applyingthe Private International Law (Choice of Law in Tort) Act 2017.35 That is the requisitethreshold at the forum stage.[81] On the evidence, I do not consider that in weighing these factors this Court wasarguably in error, let alone plainly wrong, when concluding that New Zealand (ratherthan Kentucky) is the appropriate forum for Kea's claim.33 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [12] and [89] (fn 61).34 At [81].35 At [81] (fn 58).[82] Finally, I mention two further points. First, I note that Mr Wikeley has notaddressed whether in any event injustice would displace Kentucky as a moreappropriate forum.36 It may do.[83] Secondly, as indicated, Mr Wikeley is the only defendant seeking to contestthat New Zealand is the appropriate forum, and the liquidators of WFTL expressly donot support his application. Mr Wikeley can only apply for himself. It is commonground that forum has to be assessed globally – the claim against Mr Wikeley cannotappropriately be split from the claims against the other defendants in this case who donot contest forum conveniens. Therefore, any stay would have wider ramifications. Ido not consider it arguable that the outcome on appeal would be to stay the proceedingagainst all defendants.Importance and further delay[84] Mr Wikeley says the proposed appeal is of general or public importance as itappears to be the first case to consider the threshold for forum conveniens in thecontext of an anti-enforcement injunction. He says that appellate consideration iswarranted.[85] As indicated above at [55], Mr Wikeley also says the proposed appeal is ofsignificant personal importance. He says he acted promptly after securing newrepresentation and he could have awaited the formal proof judgment.[86] I do not consider the threshold for forum conveniens in the context of ananti-enforcement injunction raises an issue of general or public importance warrantingappellate consideration. Moreover, any arguable error in the ultimate finding that theNew Zealand Court is the appropriate forum for Kea's claim does not raise an issue ofgeneral or public importance. It was a factual assessment in a most unusual case.Even in terms of the importance to Mr Wikeley, I do not consider the circumstanceswarrant incurring further delay, particularly given the context in which his applicationarises.36 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [89].[87] Overall, the high threshold for leave to appeal is not met. The interests ofjustice are not served by granting leave to appeal.Interim relief / stay[88] It is therefore strictly unnecessary for me to consider the interim relief soughtin the amended application that, pending the determination of the second defendant'sapplication for leave to appeal and any subsequent appeal:(i) further steps in this proceeding toward substantive judgment arestayed (for the avoidance of doubt, without affecting the ability tocome to the Court with respect to the interim orders, other interimmatters and reserving all other rights); or(ii) any judgment delivered on the basis of the hearing by way of formalproof be stayed as against the first defendant and second defendant asto execution, enforcement and otherwise in any jurisdiction.[89] However, I address this briefly given that, as Kea recognised, I am givingjudgment on this application before giving judgment on the substantive claims and toassist in the event leave to appeal is sought from and granted by the Court of Appeal.[90] Even if I had granted leave to appeal, I was not cited any precedent for an orderpreventing the Court drafting and delivering a reserved judgment. In the absence ofsuch authority, I consider they are not steps in the proceeding by a party that could orshould be restrained. Further, any interim relief could not extend to defendants otherthan Mr Wikeley and, even as against him, I would have declined to stay a substantivejudgment before it is delivered. That seems premature, particularly in thecircumstances of this case. As Mr Pilditch acknowledged, any interim relief or stay inrelation to a substantive judgment is better addressed once a substantive judgment isdelivered.Result[91] Mr Wikeley's applications for extension of time, leave to appeal and interimrelief are dismissed.Interim liquidators[92] As Mr Arthur for the liquidators sought, I record that nothing in this judgmentaffects the appointment or powers of the interim liquidators who were appointed byorder of this Court in a separate proceeding on 6 April 2023.37Costs[93] Kea is entitled to costs on this application. If costs cannot be agreed, Kea is tofile a memorandum within 15 working days, with Mr Wikeley's response within afurther 15 working days, and I will determine costs on the papers. Memoranda are notto exceed five pages.________________________________Gault JSolicitors / Counsel:Mr JBM Smith KC and Mr JLW Wass, Barristers, WellingtonMr M C Harris and Mr S T Coupe (plaintiff's instructing solicitors), Gilbert Walker, AucklandMr M D Arthur, Chapman Tripp, AucklandMr A F Pilditch KC, Barrister, AucklandMr T Mullins and Ms E Armstrong (second defendant's instructing solicitors), LeeSalmonLong,Auckland37 Kea Investments Ltd v Wikeley Family Trustee Ltd HC Auckland CIV-2023-404-626.