Wikeley v Kea Investments Ltd [2024] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION: Wikeley v Kea Investments Ltd [2024] QCA 201

PARTIES: KENNETH DAVID WIKELEY / (appellant) / v / KEA INVESTMENTS LTD

FILE NO/S: Appeal No 13868 of 2023 / SC No 4338 of 2023

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 215 (Cooper J); Supreme Court at Brisbane – Unreported, 27 October 2024 (Cooper J)

DELIVERED ON: 29 October 2024

DELIVERED AT: Brisbane

HEARING DATE: 22 July 2024

JUDGES: Dalton JA and Wilson and Crowley JJ

ORDERS: 1. The appeal is dismissed with costs. / 2. The notice of contention is dismissed.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF FOREIGN PROCEEDINGS: ANTI SUIT INJUNCTIONS – TO PROTECT JURISDICTION OF COURT AND ITS PROCESS – where the respondent argued the appellant fraudulently obtained a default judgment against the respondent in the Fayette Circuit Court in Kentucky because the Coal Agreement which underlay the judgment was a fabrication – where the respondent obtained interim and interlocutory injunctive orders in the High Court of New Zealand restraining the appellant from enforcing the Kentucky judgment – where the appellant attempted to circumvent the New Zealand orders – where the primary judge issued anti-enforcement restraining orders pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) in support of the New Zealand proceeding – where the primary judge heard the appellant’s application to set aside the existing court orders and made adjustments to previous orders but otherwise dismissed the application – whether the primary judge misapplied the prima facie case test established in Australian Broadcasting Corporation v O'Neill – whether the primary judge erred in finding that fraud was an exception to the principles of comity justifying the making of an anti-enforcement injunction that operated in Kentucky – whether the primary judge erred in concluding there was a serious question to be tried – whether the primary judge erred in applying the law as to balance of convenience / PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM – GENERALLY – where the appellant was present in Queensland when he took steps to obtain and enforce the Kentucky judgment – whether the Queensland proceeding was oppressive or vexatious – where the appellant incorporated a foreign registered corporation in Kentucky, Wikeley Inc, which was not a party to the Queensland proceeding – where the respondent contended Wikeley Inc was incorporated for the purpose of furthering the fraudulent conspiracy against it – where the primary judge’s orders restrained the appellant from causing Wikeley Inc to pursue litigation in the Kentucky court designed to enforce the Coal Agreement – whether the effect of the primary judge’s orders on a foreign corporation which was not a party to the proceeding meant that the Supreme Court of Queensland was a clearly inappropriate forum / PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the appellant was prevented from leaving Australia until 28 days after the final determination of the New Zealand proceeding, or an earlier order, and required to deliver up his passport – whether the primary judge erred in continuing the no-departure and passport orders / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – where the appellant contended that the respondent made material non-disclosures at the ex parte hearing which led to the anti-enforcement restraining orders – whether the respondent did not comply with its obligation of disclosure at the ex parte hearing such that the orders should have been discharged / Trans-Tasman Proceedings Act 2010 (Cth), s 25, s 26 / Abouloff v Oppenheimer & Co (1882) 10 QBD 295, cited / Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, considered / Bank St Petersburg OJSC v Arkhangelsky [2014] 1 WLR 4360; [2014] EWCA Civ 593, cited / Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, considered / Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41, considered / Ellerman Lines Ltd v Read [1928] 2 KB 144, considered / Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; [1997] SASC 6370, considered / SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, considered / Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited

COUNSEL: A J Schriiffer for the appellant / G J Gibson KC and P K O'Higgins KC with B W Wacker for the respondent

SOLICITORS: Redchip Lawyers for the appellant / Colin Biggers and Paisley for the respondent

1. DALTON JA: This appeal is brought against orders made on 4 October 2023 and 27 October 2023. These were the penultimate, and ultimate orders in a series of orders made by the primary judge beginning on 12 April 2023 between the same parties, and in relation to the same subject matter. The orders could be described as anti-enforcement injunctions in relation to a judgment obtained in the State of Kentucky, United States of America. The appellant puts forward no fewer than nine grounds of appeal in a notice of appeal which is 13 pages long. In my view the appeal should be dismissed with costs. Some of the grounds of appeal were not arguable, in my view. A notice of contention was filed by the respondent; it should be dismissed with no order as to costs.

Litigation History

2. Judgments which precede mine set out the history of this matter and I am grateful to adopt what has been said by other judges on other occasions. The matter first came on before the Supreme Court on an ex parte application on 12 April 2023. The primary judge made orders that day and delivered very detailed reasons.¹ Those reasons set out the background to the present dispute as follows:

“[2]The applicant is Kea Investments Ltd (Kea), a company incorporated in the British Virgin Islands and owned solely by Sir Owen Glenn (Sir Owen). Kea asserts that it is the subject of a significant international fraud perpetrated against it by several parties, but relevantly for present purposes, the respondent in this proceeding, Kenneth David Wikeley. It is said that the conspiracy arises out of a long-running dispute between Sir Owen and Eric Watson who was found by the High Court of Justice of England and Wales to have fraudulently induced Kea and Sir Owen to part with the sum of £129 million.²

3. Kea asserts that as part of this conspiracy, a New Zealand company, the Wikeley Family Trustee Ltd (WFTL) and Mr Wikeley, who is the sole shareholder and director of the company, fraudulently procured the Fayette Circuit Court in Kentucky in the United States (Kentucky Court) to issue a default judgment in favour of WFTL against Kea for in excess of US$120 million.³

…

Proceeding in New Zealand

[5]Kea has commenced a proceeding in the High Court of New Zealand against WFTL, Mr Wikeley and Mr Watson. In that proceeding, Kea seeks relief with respect to the Kentucky judgment and damages for tortious conspiracy. In support of that proceeding, Kea obtained interim and interlocutory injunctive orders against WFTL and Mr Wikeley, restraining them from enforcing the Kentucky judgment in any way: a form of anti-suit injunction. Initially, WFTL and Mr Wikeley appeared to comply with the injunctions ordered in the New Zealand proceeding.”

[3]The primary judge’s reasons of 12 April 2023 set out relevant parts of the judgment of Gault J of the New Zealand High Court granting the injunctions just referred to:

“[6]In 2011–2012, Mr Watson sought to persuade Sir Owen Glenn to make investments with him. Investments followed but the relationship broke down around 2013, which led to disputes.

[7]On 31 July 2018, the English High Court ruled that Kea and Sir Own Glenn [sic] had been fraudulently induced to participate in an investment called Project Spartan at a cost of £129 million. The architect of the fraud was Mr Watson. Nugee J was ‘completely satisfied’ that Mr Watson had ‘resorted to deliberate deception’. The Judge also found that Mr Dickson, Kea’s director at the relevant time, had breached his fiduciary duties to Kea. Mr Watson was subsequently committed to prison for contempt for his failure to comply with disclosure orders following the English judgment. Kea is still trying to enforce the judgment against Mr Watson.

…

[8]On 29 June 2022, Kea and its English solicitor received a letter from a BVI-based law firm attaching a statutory demand seeking to enforce against Kea a judgment debt of USD136,290,994 (including interest and court/service costs). The statutory demand indicated that WFTL, as trustee of the Wikeley Family Trust (a New Zealand trust), had obtained a default judgment against Kea from a Court in Kentucky, USA dated 31 January 2022 for alleged breach of a purported ‘Coal Funding and JV Investment Agreement’ said to have been executed in 2012 (Coal Agreement). This June 2022 letter was the first Kea had heard of both the Coal Agreement and the Kentucky Court proceeding. The Coal Agreement was not provided to Kea with the statutory demand; it was provided on 7 July 2022. Kea considers the Coal Agreement, and the claims made under it, are fabrications constructed by Mr Wikeley and Mr Watson to defraud Kea.

[9]Following enquiries with Kea’s registered agent in BVI, Kea learned that the First Amended Complaint in the Kentucky proceeding had been delivered to the offices of Kea’s registered agent in BVI. However, Kea’s registered agent did not pass the complaint on to Kea.

[10]On 12 July 2022, Kea applied to set aside the statutory demand in the BVI. That application is listed for 5 December 2022.

[11]As Kea had not been aware of WFTL’s claim in Kentucky, Kea did not take the required steps to defend it. The Kentucky Court entered default judgment against Kea on 31 January 2022 for USD123,750,000 plus interest and costs. The judgment was entered without any hearing and therefore without any examination by the Court of the merits of WFTL’s claim.

[12]Kea instructed Kentucky lawyers to apply to set aside the default judgment. That motion to set aside the default judgment was filed on 21 July 2022. It was heard on 7 October 2022 and denied on 18 October 2022 on the ground that Kea had been properly served. The Court held that, because Kea had failed to take steps following service at its registered office, the Court did not have to, and would not, consider whether there was a meritorious defence or whether the plaintiff would suffer detriment if the judgment was set aside.

[13]On 21 October 2022, Kea issued a motion to amend, alter or vary (MAAV) the denial of its application. This was heard on 28 October 2022 and the Court indicated that it would deny the motion. As at the date this proceeding was commenced, that order had not been entered. Kea intends to issue and serve an appeal against the order of 7 October 2022 and the dismissal of the MAAV as soon as possible. However, any appeal will take time and Kea is concerned there is a substantial risk that the Kentucky Court of Appeal will take the same approach as the first instance Judge and not consider the merits.

[14]On 10 October 2022, WFTL served notice on Kea that it intended to serve (reissued) Kentucky subpoenas on some 11 banks in Kentucky and New York, and a New Jersey subpoena on a bank in New Jersey, effectively seeking details of all dollar transactions carried out by Kea since 1 January 2012. Kea is taking steps in relation to such subpoenas and a hearing is scheduled in Kentucky on Friday 4 November 2022 in which it will seek to pause subpoenas and interrogatories, but Kea is concerned that, as the Kentucky Court has refused to set aside the default judgment and consider the fraud issue, it will not entertain further argument along those lines.

Coal Agreement

[15]The Coal Agreement purports to be an agreement between Mr Wikeley as trustee for the Wikeley Family Trust New Zealand and Kea represented by Mr Dickson. It is dated 23 October 2012 and witnessed by Mr Watson. It purports to commit Kea to provide capital to fund coal investments presented by Mr Wikeley. Kea considers the document is a forgery or at least unenforceable, essentially on the grounds that:

(a)In the nine years between the purported agreement and the Kentucky proceeding, WFTL had made no demand on or complaint to Kea in relation to funds payable under the agreement; there was no pre-action correspondence.

(b)Kea has no records relating to the Coal Agreement. No such documents were provided in 2013 when Mr Dickson was ordered by the Nevis Court to provide all of Kea’s records. Nor is an interest under the Coal Agreement mentioned in the list of assets provided under the Nevis Court order.

(c)Neither Sir Owen Glenn, nor Mr Munro of the Nevis professional trustee, nor any of Kea’s current directors, had any knowledge of the Coal Agreement prior to receipt of the statutory demand.

(d)The Coal Agreement is irregular, oddly formatted and not professionally drafted.

(e)The Coal Agreement makes no commercial sense. It involves the payment of very significant sums of money to the Wikeley Trust in return for very little.

(f)Mr Wikeley incorporated WFTL in New Zealand on 23 July 2021, shortly before commencing the Kentucky proceeding.

(g)On the date that Mr Watson ostensibly witnessed the signatures of both Mr Wikeley and Mr Dickson, Mr Dickson was in Paris. Mr Wikeley’s subsequent evidence in Kentucky conflicts with WFTL’s own complaint and the document itself.

(h)There is no mention of the Coal Agreement in the detailed meeting pack for the meeting in Paris on 23 October 2012 (when Mr Wikeley now claims it was signed by Mr Dickson), or in any of the emails setting up that meeting with Mr Dickson.

(i)WFTL has not produced any document showing or evidencing any requests for drawdowns under the agreement, or any documents evidencing that it was entered into or performed, other than the purported agreement itself.

(j)WFTL’s Kentucky lawyer has refused to say whether he or his client has the original of the agreement.

(k)Mr Watson appears to be supporting WFTL in its Kentucky litigation. WFTL has produced documents from the Spartan litigation trial bundle in evidence in Kentucky despite the fact that neither it nor Mr Wikeley were involved in that litigation.

(l)Mr Wikeley, Mr Watson and Mr Dickson have all been subject to adverse findings by the English or New Zealand Courts.…”⁴

4. Having set out that history, the primary judge continued, in his reasons of 12 April 2023, noting that in the New Zealand proceeding Kea asserted that “the agreement which underlies the Kentucky judgment as the foundation for the claim against Kea for damages for breach of contract, is a fabrication and otherwise unenforceable” – [13]. The primary judge noted that in New Zealand, orders had been made on 10 March 2023 on an inter partes basis, which restrained Mr Wikeley and WFTL from pursuing any litigation or taking any steps to enforce, or otherwise act on the agreement said to underpin the Kentucky judgment, or the Kentucky judgment itself, or a statutory demand made by WFTL to Kea for the amount of the Kentucky judgment. The orders were very detailed and the primary judge notes that “It was plain on the face of the orders made by the New Zealand court that Mr Wikeley was restrained from causing or permitting WFTL to assign the Kentucky judgment” – [17].

5. As set out at paragraph [12] of the judgment of Gault J, above, the Kentucky court refused to consider the merits of Kea’s argument that the default judgment had been procured by fraud. Kea filed an appeal against the decision of the Kentucky court. Unfortunately that appeal is in abeyance. Orders made by Gault J in New Zealand on 6 April 2023 included an order that liquidators be appointed to WFTL. On 20 April 2023 those liquidators filed a petition in the United States Bankruptcy Court for recognition of the interim liquidation of WFTL. That relief was granted on 21 April 2023. On 25 May 2023 the US Bankruptcy Court recognised the interim liquidation of WFTL, and that has had the effect that both the debt proceeding in the Kentucky trial court and the Kentucky appeal are stayed.

6. The primary judge continued the narrative that led to the ex parte application before him:

“[20]On 5 April 2023, Kea became aware that Mr Wikeley had taken steps in Kentucky to incorporate Wikeley Inc.

[21]That company was incorporated on 28 March 2023, and on 30 March 2023, Mr Wikeley signed documents in Brisbane purporting to assign the Kentucky judgment debt, and the Coal Agreement said to underlie that judgment, from WFTL as trustee of the Wikeley Family Trust to Wikeley Inc.

[22]On 4 April 2023, Mr Wikeley caused WFTL to apply to the Kentucky Court for Wikeley Inc to be substituted as plaintiff in the Kentucky proceeding together with motions that Wikeley Inc would bring upon substitution to compel discovery from Kea of documents relevant to the location of assets, as well as an anti-suit injunction, restraining Kea from continuing the New Zealand proceeding.

[23]That substitution motion is scheduled to be heard by the Kentucky Court on 14 April 2023. It was as a result of those developments, including the contravention of the New Zealand orders by the purported assignment, that on 6 April 2023, Kea obtained further ex parte orders in the New Zealand proceeding, including orders restraining WFTL and Mr Wikeley from taking steps to enforce or otherwise act on the purported assignment of the Kentucky judgment and requiring them to withdraw, adjourn, or otherwise seek a [dis]continuance of the Kentucky hearing, scheduled for 14 April 2023.”

7. The Supreme Court of Queensland became involved because at the time of at least some of the above conduct, Mr Wikeley was living in Brisbane, or Ningi. The primary judge noted:

“[45]In that regard, I note that this court plainly has jurisdiction over Mr Wikeley, given his presence in the jurisdiction. Further, I consider that Mr Wikeley’s conduct in Queensland which includes swearing an affidavit used in the Kentucky proceedings and executing the purported assignment of the Kentucky judgment from WFTL to Wikeley Inc has a sufficient connection to make Queensland an appropriate forum if a similar proceeding had been brought in this court.”

8. On 12 April 2023 the primary judge made orders against Mr Wikeley on the ex parte application of Kea. Those orders were made pursuant to ss 25 and 26 of the Trans*-*Tasman Proceedings Act 2010 (Cth), in support of the New Zealand proceeding. The orders were in the form of anti-enforcement restraining orders already made by the New Zealand court. In addition, the primary judge made an order restraining Mr Wikeley from leaving Australia, and compelling him to deliver up his passport to the Registrar of the Supreme Court of Queensland.

9. The 12 April 2023 orders were revised on 13 April 2023; I will refer to the 13 April orders from this point onwards. The revisions are immaterial to this appeal. On 14 April 2023 Martin SJA made orders for substituted service, the effect was that the 13 April orders were deemed to have been served on Mr Wikeley on 14 April 2023.

10. On 20 April 2023 Kea filed an application seeking that Mr Wikeley be found to have committed a contempt of court by failing to comply with requirements of the 13 April orders (contempt application).

11. The return date for an inter partes hearing of the issues raised by the original application for an injunction was 21 April 2023. On that hearing Mr Wikeley was represented by a solicitor. The court made orders continuing the 13 April orders until 28 days after the final determination of the New Zealand proceeding or earlier order, and issued a warrant for Mr Wikeley’s arrest given his apparent non-compliance with parts of the 13 April orders, including the requirement that he surrender his passport.⁵

12. By 3 May 2023 Mr Wikeley had surrendered his passport; the arrest warrant was vacated and he was living at a specified address subject to a curfew as a condition of the adjournment of the contempt application.

13. On 15 June 2023 Mr Wikeley filed an amended application to set aside the existing court orders and have both the original civil proceeding and the contempt application permanently stayed. That application was heard by the primary judge in August 2023. On 4 October 2023 he made some adjustments to previous orders, but essentially dismissed Mr Wikeley’s application. The current appeal is from that dismissal. I will deal with each of the grounds of appeal in turn.

Ground 1: Serious Question to be Tried

14. The first ground of appeal is that the primary judge erred in law, “in concluding that there was a serious question to be tried that the court would issue a permanent anti-enforcement injunction on the terms of the interlocutory injunction”. The notice of appeal listed six separate grounds and 10 separate sub-grounds in relation to this appeal ground. Before coming to any of these points, I will examine the parts of the judgment below which dealt with the issue of whether the respondent had demonstrated a serious question to be tried.

15. The primary judge granted relief, both on an ex parte and inter partes basis, under ss 25 and 26 of the Trans-Tasman Proceedings Act. Those sections provide:

“25****Application to an Australian court for interim relief

A party or intended party to a civil proceeding commenced or to be commenced in a New Zealand court may apply to any of the following Australian courts for interim relief (other than a warrant for the arrest of property) in support of the New Zealand proceeding:

(a)the Federal Court;

(b)the Federal Circuit and Family Court of Australia (Division 1);

(c)the Supreme Court of a State or Territory;

(d)another Australian court prescribed by the regulations.

26****Giving of interim relief in support of a New Zealand proceeding

(1)On application under section 25, the Australian court may give interim relief (other than a warrant for the arrest of property) in the terms it considers appropriate if:

(a)the court considers it appropriate to give the interim relief in support of the New Zealand proceeding; and

(b)if a proceeding similar to the New Zealand proceeding had been commenced in the court, the court:

(i)would have had power to give the interim relief in that similar proceeding; and

(ii)would have given the interim relief in that similar proceeding.

(3)This section does not affect any other powers of the Australian court to give interim relief in support of the New Zealand proceeding.”

16. In determining whether or not to make an order in support of the New Zealand proceeding, the primary judge examined the claims made in that proceeding:

“[37]Kea commenced the New Zealand proceeding on 31 October 2022.

[38]In the statement of claim filed in the New Zealand proceeding, Kea has pleaded the following background facts in support of its claim of fraudulent conspiracy:

(a)the dispute between Sir Owen Glenn and Mr Watson and the litigation concerning Project Spartan;

(b)Mr Wikeley’s incorporation of WFTL and the course of the Kentucky proceeding;

(c)that Mr Watson provided assistance to WFTL in its conduct of the Kentucky proceeding, including by providing documents extracted from the trial bundle used in the Project Spartan litigation;

(d)conduct by Mr Rizwan Hussain, said to be a known fraudster acting in concert with Mr Watson, which included:

(i)an attempt to take control of Kea by purporting to replace its directors and to settle the Kentucky proceeding for the sum of US$100 million;

(ii)writing to the Kentucky Court and purporting to withdraw Kea’s motion to set aside the default judgment;

(iii)bringing proceedings in the High Court of England and Wales in Kea’s name against Sir Owen Glenn and Kea’s lawyers in England and the BVI;

(e)Kea’s efforts to strike out the proceedings instituted by Mr Hussain;

(f)that WFTL’s Kentucky lawyers filed a notice of settlement agreement in the Kentucky proceeding following the purported settlement effected by Mr Hussain.

[39]As to the default judgment, Kea has pleaded:

(a)that the Coal Agreement is a forgery and was not signed by Mr Dickson on behalf of Kea;

(b)alternatively, if Mr Dickson did sign the Coal Agreement, its terms were so uncommercial that Mr Dickson could not have believed in good faith that entering into that agreement was in the best interests of Kea and thereby breached his duties as a director, and that Mr Wikeley and Mr Watson were aware of this at the time the Coal Agreement was signed;

(c)the default judgment was procured by fraud because:

(i)WFTL, by Mr Wikeley, knew the Coal Agreement to be a forgery or knew that it had no legitimate claims against Kea;

(ii)there was a fraud on the Kentucky Court because the default judgment involved misleading the Kentucky Court.

[40]Based on the foregoing matters, Kea has pleaded a cause of action for tortious conspiracy on the basis that WFTL and Mr Wikeley have acted in combination with the intention of injuring Kea by unlawful means by:

(a)making claims against Kea under the Coal Agreement in circumstances where WFTL, by Mr Wikeley, knew it had no legitimate claims under that agreement;

(b)procuring the default judgment by fraud;

(c)attempting to enforce the default judgment;

(d)accepting the purported settlement sought to be effected by Mr Hussain.

[41]Kea has further pleaded that WFTL and Mr Wikeley are acting in combination with Mr Watson to further the interests of Mr Watson, as well as the interests of WFTL and Mr Wikeley. The purpose of the conspiracy is alleged to include:

(a)to cause loss to Kea by pursuing fraudulent claims under the Coal Agreement;

(b)to take control of Kea for the purpose of fraudulently obtaining its assets;

(c)assisting Mr Watson in continuing to avoid his obligations to Kea under the English judgment, including by disabling Kea from enforcing that judgment by having it placed into liquidation;

(d)illegitimately obtaining Kea’s confidential information and using that information to defraud or otherwise damage Kea;

(e)to divert Kea’s attention and resources to investigating and responding to their conduct.

[42]The relief Kea has sought on its claim for tortious conspiracy by unlawful means includes:

(a)damages in an unspecified amount for the costs which Kea has incurred by investigating and responding to the defendants’ unlawful conduct;

(b)a permanent injunction restraining the defendants from:

(i)seeking to enforce the default judgment anywhere in the world, including by issuing subpoenas, issuing interrogatories, seeking discovery or otherwise seeking disclosure of information concerning Kea;

(ii)taking any further steps to enforce or otherwise rely on the Coal Agreement.

[43]Kea has also pleaded a second cause of action against WFTL and Mr Wikeley for declarations that the default judgment was obtained by fraud and is not entitled to recognition or enforcement in New Zealand.”

17. Aspects of the Coal Agreement are described in the quotation from the judgment of Gault J in the New Zealand proceedings, above. In addition the primary judge said this about the Coal Agreement:

“[18] The Coal Agreement purports to be an agreement between Mr Wikeley, as trustee for the Wikeley Family Trust, and Kea. On its face, it was executed by Mr Wikeley and by Mr Dickson, Kea’s then director, on 23 October 2012 with both signatures having been witnessed by Mr Watson.

[19] The recitals record that Kea and Mr Wikeley had agreed to enter into a joint venture for the purpose of investing in coal and other energy projects identified by Mr Wikeley. They refer to various prospective investments, including a coal project in Kentucky.

[20] Under the terms of the Coal Agreement, Kea was obliged to provide a minimum capital amount of US$75 million over 8 years to the joint venture to fund the proposed investments. Those capital payments were to be made by way of 20-year loans at an interest rate of 3%. The loans were to be repaid once investments were sold or placed in listed corporate vehicles. Kea would receive 60% of the joint venture profits. No security was to be provided for the loans.

[21] Although the wording of the Coal Agreement is far from clear, it appears that Kea also agreed to pay a royalty of US$1.5 million per year for a period of 20 years to Mr Wikeley ‘irrespective as to whether production has commenced or not, or if for any reason investment has been delayed’.

[22] Under the terms of the Coal Agreement, Kea also:

indemnified Mr Wikeley for any losses and lost profits if it failed to provide a minimum capital amount of $US75 million;

guaranteed its performance of all its obligations under the agreement, including the capital funding commitment and the royalty payment, in all circumstances including negligence by Mr Wikeley;

in the event it failed to provide the minimum capital amount, indemnified Mr Wikeley for the greater of 25% of the estimated profits from the proposed investments—in one place said to be US$375 million and in another place said to be £375 million—or 25% of the actual profits earned by third parties from the projects identified by Mr Wikeley for investment (if capable of determination).

[23] The Coal Agreement also contained a jurisdiction clause which provided:

‘The parties have agreed that the jurisdiction shall be the USA. The contract will be governed by the laws in Lexington, Kentucky and any applicable Federal law.’”

18. The primary judge concluded that there was “an arguable case that the Coal Agreement [was] a fabrication” and further that there had been a fraudulent conspiracy. He said:

“[189] Based on the evidence read by Kea on this application (which included all the evidence read in the New Zealand proceeding) I am satisfied there is an arguable case that the Coal Agreement is a fabrication. I note that:

it seems inherently unlikely that a party in Kea’s position would agree to the terms of the Coal Agreement which impose all of the risk of the asserted joint venture arrangement on Kea;

there is no evidence of the ‘financial models and analysis’ which is referred to in the background section of the Coal Agreement as having been provided to Kea for the purpose of due diligence, nor any evidence of the ‘feasibility study’ which is referred to in the background section of the Coal Agreement as having been undertaken by Kea and its (unidentified) ‘advisors’;

there is evidence that:

on 23 October 2012, the date on which Mr Dickson and Mr Wikeley apparently signed the Coal Agreement, as witnessed by Mr Watson, Mr Dickson was in Paris;

a detailed package of documents was prepared for a meeting in Paris on 23 October 2012 between Mr Dickson and Mr Watson, but those documents make no mention of the Coal Agreement;

Mr Wikeley has given two different accounts to the Kentucky Court about how and when the Coal Agreement was signed:

the complaint which commenced the Kentucky proceeding alleged (in paragraph 2 of the general allegations) that ‘On October 23, 2012, Peter Dickson, as a director of Kea, was presented with a Coal Funding and JV Investment Agreement (the “Agreement”) by Kenneth Wikeley, as Trustee for the Wikeley Family Trust, related to a coal investment in Kentucky’ and (in paragraph 5) that ‘On October 23, 2012, Peter Dickson, acting on behalf of Kea, executed the Agreement committing Kea to provide capital to fund the coal operations, to provide a percentage of gross profits, and to provide guaranteed royalties, all as outlined in the signed agreement attached as Exhibit A’;

in his affidavit filed later in the Kentucky proceeding, Mr Wikeley asserted that he signed the Coal Agreement on 26 September 2012 in New York in the presence of Mr Watson; that Mr Watson told him he would have Mr Dickson sign the agreement the following month when he was due to meet Mr Dickson in Paris; and that he was informed by Mr Watson on 23 October 2012 that Mr Dickson had signed the agreement;

Mr Wikeley has not sought to explain that inconsistency;

Kea has no record of the Coal Agreement or any records relating to the Coal Agreement prior to the receipt of the statutory demand in the BVI;

there is no evidence of any demand having been made upon Kea to provide funding in accordance with the terms of the Coal Agreement from the time it was apparently executed on 23 October 2012 to the commencement of the Kentucky proceeding on 19 August 2021;

the evidence of Sir Owen Glenn is that:

he has no recollection of any discussion concerning the projects referred in the background section of the Coal Agreement;

he was not aware of Kea having entered into the Coal Agreement, or any similar agreement under which it was required to lend money to the Wikeley Family Trust or to Mr Wikeley;

he was not aware of Kea having entered into an agreement concerning the projects referred to in the background section of the Coal Agreement;

Mr Watson never mentioned the Coal Agreement, or any similar agreement, to him and did not mention any requirement for payments from Kea under such agreement;

he first became aware of the Coal Agreement, the alleged joint venture and the default judgment on 29 June 2022, after Kea’s BVI agent provided a copy of the statutory demand issued in the BVI by WFTL;

the evidence of Mr Andrew Munro, a representative of a professional trustee appointed in February 2013 to take control of the assets of the Corona Trust, including assets held by Kea, in proceedings in Nevis, is that:

an order was made in the Nevis proceeding that required Mr Dickson, among others, to provide to the professional trustee all documents relating to companies which included Kea;

if Kea had entered into the Coal Agreement before the appointment of the professional trustee in Nevis, Mr Dickson would have been obliged to disclose it under the order in the Nevis proceeding, but he did not provide it;

Mr Munro acted as the representative of a corporate director of Kea appointed in March 2013 and, in that capacity, dealt with Mr Watson on behalf of Kea;

Mr Watson never mentioned the Coal Agreement, or any similar arrangement to him and did not mention any requirement for payments from Kea under such agreement;

Mr Munro was not aware of Kea having entered into the Coal Agreement, or any similar agreement or joint venture involving the Wikeley Family Trust or Mr Wikeley or relating to the projects referred to in the Background section of the Coal Agreement;

Mr Munro first became aware of the Coal Agreement after WFTL had commenced the Kentucky proceeding.

[190] I am also satisfied that Kea has established an arguable case that Mr Wikeley has engaged in a tortious conspiracy against Kea. That action would require that the following elements be proved:

an agreement between, or combination of, two or more persons;

the commission of or threat of an unlawful act;

an intention to injure the plaintiff; and

damage resulting from the threats or unlawful acts.

[191] If the evidence adduced by Kea is ultimately accepted then it will have established:

Mr Wikeley acted in combination with at least Mr Watson in fabricating the Coal Agreement and in the prosecution of the Kentucky proceeding based upon that agreement;

those parties’ use of the fabricated document to procure a financial benefit under the default judgment to which they are not entitled amounted to the use of unlawful means;

those parties’ attempts to enforce the default judgment was directed to Kea, and it must be inferred intended to injure Kea;

Kea has suffered loss in seeking to respond to the fraudulent conspiracy, including the costs of seeking to have the default judgment set aside and to restrain the enforcement of that judgment.” (footnotes omitted).

Ground of appeal 1(f): Strength of Prima Facie Case

19. It is convenient to deal with this part of the appeal ground first. By this ground the appellant contended that the primary judge erred in applying the test established by the High Court in Australian Broadcasting Corporation v O'Neill.⁶ The judgment of Gummow and Hayne JJ in O'Neill’s case referred to the earlier High Court authority of Beecham Group Ltd v Bristol Laboratories Pty Ltd⁷ to the effect that there are two main enquiries when a court is asked to make an interlocutory injunction:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” – [65].

20. Gummow and Hayne JJ said of the first main enquiry:

“By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’” – [65].

21. Gleeson CJ and Crennan J delivered a separate judgment in O'Neill. They referred to a judgment of Doyle CJ in a South Australian case of Jakudo Pty Ltd v South Australian Telecasters Ltd.⁸ They said:

“As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed.” – [19].

22. In both parts of the judgments just quoted, it is apparent that whether or not the phrase “a serious question to be tried” is used, or the phrase “a prima facie case” is used does not matter. As Gummow and Hayne JJ said in O'Neill:

“When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase ‘serious question’ if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.” – [70].

23. The appellant criticised the language of the primary judge at [232] of the judgment below:

“[232] Having concluded that Kea has established an arguable case that the Coal Agreement is a fabrication (see [189] above) and that Mr Wikeley has engaged in a tortious conspiracy (see [190] to [191] above), I am also satisfied that there is a serious question to be tried that a permanent anti-enforcement injunction would be granted in the circumstances of the present proceeding. I do not consider that the potential defences referred to in [139] above preclude such a conclusion.” (my underlining).

24. In that paragraph the primary judge referred to [189] of his judgment. That began with the sentence, “Based on the evidence read by Kea on this application (which included all the evidence read in the New Zealand proceeding) I am satisfied there is an arguable case that the Coal Agreement is a fabrication.” He used similar language at [190], “I am also satisfied that Kea has established an arguable case that Mr Wikeley has engaged in a tortious conspiracy against Kea.” (my underlining in both quotes). Both these passages from the judgment below are set out above. Both introductory sentences are followed by a summary of the evidence led by the respondent below, analysed so as to give the primary judge’s view of it. While in paragraphs [189], [190], and [232] the primary judge uses the word “arguable” and in [232] uses the phrase “a serious question to be tried”, it is evident from the analysis at [189] and [190] that the primary judge found the evidence led by the respondent below to be compelling.

25. It is clear that the primary judge evaluated the evidence before him having regard to the seriousness of the injunction he was asked to make, in what he expressly recognised was an extraordinary application. It is quite clear that the primary judge directed his mind to “the requisite strength of the probability of ultimate success”, to use the words of Gummow and Hayne JJ in O'Neill – [71]. It is plain from the matters analysed at [189] and [190], that the judge regarded the case the respondent demonstrated as strong. In my view, he was right to do so when regard is had to the evidence which was before him and his analysis of it. There is nothing in this point.

26. Associated with it was the assertion that at [241] below there was another instance of the same error by the primary judge. This paragraph dealt with the primary judge’s conclusion on a separate point. The point is itself the subject of appeal, see [44] below. Below, it was argued on behalf of Mr Wikeley that so long as the Kentucky judgment remained in force, Kea was prevented from contending that it was procured by fraud. A number of cases were relied on by the appellant below in support of this proposition. The judge was not convinced, and [241] expresses his conclusions in relation to these authorities. He said:

“[241] I am not persuaded, however, that these authorities compel the conclusion that Kea’s claim of tortious conspiracy cannot support a permanent anti-enforcement judgment in circumstances where the default judgment has not been set aside in Kentucky. The grant of anti-enforcement injunctions in Ellerman Lines and Bank St Petersburg, discussed above, suggests otherwise. On this application I do not need to reach a concluded view about this. It is sufficient that I am satisfied that the question is arguable.” (my underlining).

27. The primary judge was expressing his view on the question of law raised by the appellant. In circumstances where it would be (presumably) central to the case the appellant sought to make on the hearing for a permanent injunction in New Zealand, fairly to the appellant, the judge below did not decide it, but expressed his view that he did not see sufficient strength in the argument to refrain from making the orders he did. There is nothing in this point.

28. Before leaving the question of the primary judge’s application of the serious question, or prima facie case, test, it is convenient to deal with an argument raised on behalf of the appellant in written submissions in reply. At paragraph 27 of this outline the appellant cited a passage at [65] of O'Neill saying that, in order to satisfy the first main enquiry on an application for an interlocutory injunction, the court was required to make an assessment of the strength of the case shown by the applicant, having regard to the nature of the rights the applicant asserted and the “practical consequences likely to flow from the order” which was sought on the application. At paragraphs 3 and 4 of this outline the appellant contended that, because the Kentucky judgment had not been registered in Australia or New Zealand, no property of the respondent was at risk in those jurisdictions. Furthermore, that the respondent had not deposed to where its property in the United States of America was located. It was said that all WFTL had done by issuing subpoenas out of the Kentucky court, was seek disclosure in “multiple US states to discover the whereabouts of Kea’s assets”. It was submitted that in these circumstances the primary judge could not have been satisfied that the respondent’s assets were at risk.

29. During the oral hearing of this appeal, senior counsel for the respondent described some submissions made on behalf of the appellant as having an air of unreality about them. I think the description applies very well to this submission. The “practical consequences likely to flow” from a refusal to make the injunction sought by the respondent would be enormous, and likely irretrievable if there is in fact a fraud, as Kea alleges. In circumstances where the respondent showed a strong prima facie case that it was a victim of a fraudulent conspiracy, this was a very strong matter weighing against the appellant below.

30. Lastly, there was an oral submission made by the appellant on this appeal that the judge had misunderstood or misapplied the first of the main enquiries referred to in O'Neill. It was said that the “status quo” in this case was that the appellant was entitled to enforce a judgment entered in Kentucky. I reject this submission. In circumstances where Kea asserts that judgment to have been obtained as part of a fraudulent conspiracy against it, the status quo, relevantly, is that the Kentucky judgment remains unexecuted. To allow execution would be to cause major and perhaps irreparable financial harm to the respondent.

“The material facts are as follows:–On 8th January 1933, the appellant's jaw was fractured. The injury was the result either of the appellant having jumped out of a window, or of Ferrando having assaulted her. She sued Ferrando for damages for assault in the Magistrates Court. On 10th May 1934, the magistrate found that her injury was due to the first of these two causes and gave judgment in favour of the defendant. She appealed to the Supreme Court of Queensland at Townsville, which, on 23rd July 1934, dismissed the appeal.

At the hearing before the magistrate oral evidence was given for the defendant by the defendant himself and by Aracil, Vila and one Clement. The depositions of these witnesses were used on the appeal to the Supreme Court.

In June 1938, the appellant commenced an action in the Supreme Court of Queensland in respect of which the present appeal has been brought, the defendants being Ferrando, Aracil and Vila. The defendant Vila demurred to the statement of claim on the ground that the facts alleged therein did not constitute any cause of action against him.” – pp 145-146.

34. The demurrer was successful and Cabassi appealed to the High Court. Starke and McTiernan JJ dismissed the appeal on the sole basis that there was no cause of action against a witness for what the witness said in evidence in the course of a judicial proceeding. These judges put that rule on the basis of public policy to protect judicial proceedings. Rich ACJ said that he concurred in the judgment of Williams J, but stated his own opinion. That opinion was also based on the rule that no action lay against a witness for giving false testimony. He put the rule on the basis of public policy concerning the administration of justice, but also on the basis that, “a proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way.” – p 139. In fact, as the High Court was only dealing with the demurrer between Cabassi and Vila, the parties were not the same.

35. Williams J also thought that the claim against Vila was demurrable on the basis of the rule that a witness cannot be sued. However, he seems to have put his judgment on the basis of another rule, namely that “When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando. Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. … the other two defendants could not be in a worse position than Ferrando.” – p 148. It was this particular part of Williams J’s judgment which the appellant relied upon. That is, the appellant relied upon reasoning which was not majority reasoning in the case and was an opinion on the very question which both Starke J (p 141) and McTiernan J (p 145) expressly refused to decide.

36. In any event, whatever the rules regarding collateral challenge in domestic law, and however extraordinary circumstances must be to grant an anti-enforcement injunction, none of the authority put forward by the appellant deals with cases concerning private international law or comes to terms with the proposition put forward by the respondent on this appeal that the distinction between a domestic judgment and a foreign judgment was that a foreign judgment will not be recognised as valid in Australia unless recognised according to Australian rules of private international law, and in particular will not be recognised where it has been procured by fraud. – Abouloff v Oppenheimer & Co.¹⁰ These grounds of appeal must fail.

Grounds 1(c) and (d)

37. These grounds of appeal are to the effect that the primary judge erred in making an anti-enforcement injunction which operated within the United States of America, and in particular Kentucky, where there was an extant judgment between the parties in the appellant’s favour. This was said to trespass impermissibly on the sovereignty of Kentucky, breach comity, and mistakenly do so on the basis that there was sufficient reason because of the fraud allegations made by Kea.

38. These grounds seem directed to order 3 made by the primary judge on 21 April 2023, which order he refused to vacate in his 4 October 2023 determination. Order 3 of the 21 April 2023 orders prohibited Mr Wikeley from: taking steps to appoint an additional or replacement trustee of the Wikeley Family Trust; progressing the Kentucky proceedings; taking any step to enforce or otherwise pursue rights under the Coal Agreement; assigning of the Coal Agreement to Wikeley Inc; assigning the Kentucky judgment to Wikeley Inc, or pursuing the motion to substitute Wikeley Inc for WFTL in the Kentucky proceedings. Mr Wikeley was ordered to cause Wikeley Inc to withdraw, adjourn or seek to discontinue current interlocutory steps in the Kentucky proceedings for substitution, discovery, and an anti-suit injunction against Kea.

39. Essentially by these grounds of appeal the appellant seeks to re-argue grounds advanced before the primary judge. The primary judge disposed of them in these terms:

“[233] Mr Wikeley submitted that the declaration sought by Kea in the New Zealand proceeding – that the default judgment was procured by fraud – does not support the claim for an anti-enforcement injunction. Having regard to the decisions in Ellerman Lines and Bank St Petersburg discussed above, it is arguable that Kea’s claim for this declaration can support an anti-enforcement injunction which operates outside the local forum. I do not accept that, in the circumstances of this case, injunctive relief could only ever be directed to attempts to enforce the default judgment in Australia (or in New Zealand in respect of the interim relief granted in the New Zealand proceeding).

…

[241] I am not persuaded, however, that these authorities compel the conclusion that Kea’s claim of tortious conspiracy cannot support a permanent anti-enforcement judgment in circumstances where the default judgment has not been set aside in Kentucky. The grant of anti-enforcement injunctions in Ellerman Lines and Bank St Petersburg, discussed above, suggests otherwise. On this application I do not need to reach a concluded view about this. It is sufficient that I am satisfied that the question is arguable.”

40. On this appeal the appellant cited the English Court of Appeal decision SAS Institute Inc v World Programming Ltd¹¹ for the proposition that “an anti-enforcement injunction operating in a foreign jurisdiction accordingly involves an exorbitant exercise of jurisdiction”. The case is not authority for the proposition that such an injunction can never be made. To the contrary, the case recognises that there is jurisdiction to grant an anti-enforcement injunction, although the circumstances for doing so will not often arise. It discusses Ellerman Lines Ltd v Read¹² and Bank St Petersburg OJSC v Arkhangelsky¹³ as cases where such an injunction was granted, in Ellerman Lines because the judgment abroad had been obtained by fraud, and in Bank St Petersburg where enforcement of the judgment was contrary to agreement of the judgment creditor – [94]. SAS cites Ecobank Transnational Inc v Tanoh¹⁴ as recognising these two exceptional cases.

41. Ground 1(d)(v) asserted that the Supreme Court of Queensland did not have sufficient interest to make an anti-enforcement injunction which operated in Kentucky. No authority is cited for that proposition, and the argument is not developed in any way. The judge below found as follows in relation to this:

“[193] It is true that Kea’s proceeding against Mr Wikeley does not have as strong a connection to the local jurisdiction as existed in Ellerman Lines (where the defendant was a British subject) or Bank St Petersburg (where the parties entered into an exclusive jurisdiction agreement to have their dispute resolved by the English courts). Nevertheless, I consider that there is sufficient connection to Queensland in circumstances where Mr Wikeley has taken steps to secure the benefits of the default judgment while he has resided in this jurisdiction.

[194] There is evidence that, while he resided in Queensland, Mr Wikeley swore an affidavit which was filed in the Kentucky proceeding in opposition to Kea’s motion to set aside the default judgment. He was also in Queensland when he executed the purported assignment of the default judgment from WFTL to Wikeley Inc, apparently in contravention of the orders made in the New Zealand proceeding.

[195] The evidence is not as clear as to whether Mr Wikeley was in Queensland at earlier times when he took relevant steps.

[196] For example, a company extract for WFTL, prepared on 26 October 2022 records:¹⁵

the incorporation date of WFTL as 23 July 2021;

the sole director and shareholder of WFTL as being Mr Wikeley;

Mr Wikeley’s address as being 22 Bora Place, Ningi, Queensland.

[197] It is not clear, however, whether Mr Wikeley was residing at that address when he caused WFTL to be incorporated and for it to replace him as the trustee of the Wikeley Family Trust.

[198] Mr Wikeley’s own evidence as to his residence at different times is expressed in vague terms.

[199] In the affidavit he filed in the New Zealand proceeding on 23 November 2022 (see [122] to [125] above), he stated that: at that time he was living at his sister’s house at Ningi; his permanent home is in Mykolaiv, Ukraine; he had been unable to return to Ukraine because of the COVID-19 pandemic and the war.

[200] In an affidavit filed in this proceeding on 26 April 2023, Mr Wikeley stated: until 2019, when COVID-19 prevented international travel, his address was Apartment 49, 8 Levineska Street, Nikolaev, Ukraine; he resided permanently in Ukraine between 2007 and 2013; he then resided between Ukraine, the United States and Australia until 2019 when COVID-19 caused borders in Australia and internationally to close; since 2019 he has been diagnosed with a number of medical conditions which have prevented him from travelling internationally.

[201] Although Mr Wikeley does not say so in terms, it is at least arguable based on this evidence that he has resided at the Ningi address from late 2019 or early 2020 when borders in Australia and internationally were closed due to COVID-19. If that is established then Mr Wikeley will have been present in Queensland when he took all relevant steps in seeking to obtain the benefit of the default judgment, namely:

the incorporation of WFTL and its substitution as trustee of the Wikeley Family Trust less than a month before the commencement of the Kentucky proceeding;

providing instructions to WFTL’s lawyers in Kentucky (as WFTL’s sole director) to commence the Kentucky proceeding;

providing instructions for the Kentucky proceeding to be served on Kea’s registered office in the BVI;

providing instructions to WFTL’s lawyers in Kentucky for entry of the default judgment;

providing instructions to WFTL’s lawyers in the BVI to serve the statutory demand on Kea in reliance upon the default judgment;

providing instructions to WFTL’s lawyers in Kentucky to resist Kea’s efforts to have the default judgment set aside;

providing instructions to WFTL’s lawyers in various jurisdictions to apply for the issue of subpoenas to financial institutions with the aim of identifying assets from which the default judgment might be satisfied;

executing the assignment of the default judgment from WFTL to Wikeley Inc.

[202] On this basis, if Kea were to ultimately succeed in its claim that the default judgment was obtained in reliance upon a fabricated agreement, then Mr Wikeley would properly be described as a person subject to the jurisdiction of this court who, in obtaining the default judgment, has acted in a way that violates the principles of equity and conscience.¹⁶ That is sufficient in my view to satisfy the requirement that the court not only have personal jurisdiction over Mr Wikeley, but that it have subject matter jurisdiction over the issues raised by Kea’s proceeding.

[203] For these reasons, I am not persuaded that this court is a clearly inappropriate forum by reasons of considerations of comity.”

42. The appellant has identified no error in the reasoning of the judge.

43. It was asserted at appeal ground 1(d)(iii) that the primary judge did not find that the respondent could not obtain justice in Kentucky. That is correct, although by the time of the October decision, there were clearly going to be significant delays in an appeal from the Kentucky judgment. The appellant cited no authority at all for the proposition that such a finding was necessary. The judge did note that both the appellant’s and respondent’s expert considered that the Kentucky judgment was likely to be overturned on appeal. In those circumstances, these factors weighed in favour of granting an injunction, rather than against it.

44. At appeal grounds 1(d)(vii) and (viii) the appellant argued that the judge below erred in finding that “there exists a ‘fraud exception’ to the principles of comity”. The primary judge relied upon the English decision of the House of Lords in Ellerman Lines Ltd v Read.¹⁷ In that case Scrutton LJ said this about granting an injunction with extra-territorial effect where there was fraud:

“Here we have an English contract, considerable portions of which were to be performed in England, entered into by a naturalized British subject; that naturalized British subject is proved to have broken that contract and by fraud obtained a foreign judgment which he proposes to enforce against the property of the other contracting party. He has been properly served with the writ in this action and is a party to the proceedings. In such a case, as I understand the decisions, the English Courts have always professed, and asserted, their power to act. They do not, of course, grant an injunction restraining the foreign Court from acting; they have no power to do that; but they can grant an injunction restraining a British subject who is fraudulently breaking his contract, and who is a party to proceedings before them, from making an application to a foreign Court for the purpose of reaping the fruits of his fraudulent breach of contract.” – p 151.

45. Of this the primary judge said:

“[181] After reviewing statements of principle in two authorities, Scrutton LJ concluded that the English courts have ‘jurisdiction to restrain a person who is subject to the English jurisdiction from taking proceedings in a foreign Court in breach of contract and in fraud’. His Lordship then rejected a submission that the English courts have no power, after a foreign court has given judgment, to grant an injunction restraining the person who has obtained that judgment from seeking to enforce it, stating:

‘If there is no authority for this it is time that we made one, for I cannot conceive that if an English Court finds a British subject taking proceedings in breach of his contract in a foreign Court, supporting those proceedings, and obtaining a judgment, by fraudulent lies, it is powerless to interfere to restrain him from seeking to enforce that judgment. I am quite clear that such an injunction can be and in this case ought to be granted in the terms asked for in the statement of claim.’” – (footnotes omitted).

46. The primary judge noted that in Ellerman, Atkin LJ and Eve J gave opinions to the same effect. Further, that Ellerman Lines was followed in Bank St Petersburg OJSC v Arkhangelsky.¹⁸ I would note that the authority of SAS, relied upon by the appellant on this appeal, approved both those cases. In truth, the appellant had no authority to support its contention and its submissions amounted to nothing more than saying that (unsurprisingly) the facts of the cases in England were different from the facts here. That is not enough to show that the statements of principle from the English cases do not apply to the facts of this case. These appeal grounds must fail.

Appeal ground 1(e): Assertion of inconsistent steps by Kea

47. This ground seeks to re-argue something else which was put before the primary judge, namely that Kea should be denied relief in Queensland because it had twice attempted to challenge the Kentucky judgment in Kentucky before seeking anti-enforcement relief in New Zealand. Contrary to the placement of this ground of appeal in that part of the appellant’s notice of appeal which dealt with errors of law going to establish a serious question to be tried, this was a matter which the court below correctly recognised was one which had to be taken into account in assessing the balance of convenience.

48. The primary judge correctly recognised that delay was a factor to be weighed against granting an injunction – [253] below. Further that “the tenor of modern authorities is that an applicant wishing to seek such relief should act promptly and not adopt an attitude of waiting to see what the foreign court decides.” He cited Ecobank (above) at [129] for that proposition. However, his Honour found that these considerations were outweighed by the fact that, on the evidence which Kea put before the court, and the appellant did not in any substantive way contradict, the Kentucky judgment was part of a conspiracy to defraud Kea – [255]. In my view no error has been demonstrated.

Ground 2: Clearly Inappropriate Forum

49. Some of the matters raised under this ground of appeal have already been determined. Ground 2(b) and 2(c)(ii) must be determined against the appellant; they raise the same points raised at ground 1(d).

50. At ground 2 of the notice of appeal were five points (and nine sub-points) in support of a contention that the primary judge ought to have found that Queensland was a clearly inappropriate forum and thus not entertained the applications made by the respondent for restraining orders; refused to continue the orders, and stayed the civil proceeding.

51. At point 2(a), it was submitted that Queensland was a clearly inappropriate forum in the sense that for Kea to bring this proceeding was oppressive or vexatious: Voth v Manildra Flour Mills Pty Ltd.¹⁹ The primary judge rejected this contention saying:

“[230] To the contrary, I am satisfied that Queensland is not a clearly inappropriate forum having regard to: (i) Mr Wikeley’s presence in Queensland when he took steps to obtain and subsequently enforce the default judgment as part of (on Kea’s case) the tortious conspiracy against it; (ii) the resulting conclusion (see [193] to [202] above) that this court has subject matter jurisdiction over the issues raised by Kea’s proceeding; and (iii) Mr Wikeley’s amenability to the jurisdiction of this court such that orders made against him are likely to be effective in preserving the status quo pending the determination of Kea’s claim of tortious conspiracy.”

52. The appellant asserted error at [230](iii) of the reasons below. It was said that this consideration was irrelevant to the principles in Voth. No written or oral submissions were addressed to this point, and I cannot see that the appellant has demonstrated any error in this regard. As already discussed, it was a relevant consideration that the appellant resides in Queensland and undertook the actions said to be in breach of the New Zealand court orders in Queensland, and that enjoining him, as the primary judge did, would likely be effective to prevent the continuation of what the respondent demonstrated was a likely fraud. The appellant’s submission greatly oversimplifies the judge’s reasoning. There is nothing in this ground.

53. Appeal ground 2(c) asserted that the primary judge was wrong to find that the appellant was someone “who, in obtaining the default judgment, has acted in a way that violates the principles of equity and good conscience”. This was said to be so because the Kentucky judgment was regularly entered and thus could not be a violation of equity and good conscience. It was said this was particularly so when the Kentucky court has refused to set aside the default judgment and in reasons for that refusal had refused to consider the merits of the respondent’s claim that the Kentucky judgment had been obtained by fraud. Furthermore, the primary judge had evidence that the respondent had commenced an appeal of the Kentucky judgment and had expert evidence before him that the appeal was likely to succeed and thus was unable to conclude that the respondent was “unable to obtain justice” in Kentucky.

54. These arguments overlook the fact that the appeal proceeding in Kentucky has been stayed, and the law discussed at [44] and following above, to the effect that where allegations are made that a foreign judgment has been obtained by fraud (even if regularly obtained in the foreign jurisdiction), the court will have power to intervene. The fact that expert evidence was to the effect that the primary judge in Kentucky was wrong in failing to consider the merits of the respondent’s fraud allegation was against the appellant. The primary judge was right to conclude that, although there had been delay on the part of the appellant, attempts to overturn the Kentucky judgment in Kentucky, before resorting to the New Zealand, and then Australian courts, could not be described as forum shopping. This ground must fail.

55. Ground 2(d) of the notice of appeal attacked the judge’s reasoning at paragraphs [219]–[224]:

“[219] This aspect of Mr Wikeley's submissions relies upon the statement of the majority in CSR that:

‘Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are “seriously and unfairly ... prejudicial [and] damaging”. They are, thus, oppressive in the Voth sense of that word.’

[220] CSR was not a case in which the foreign proceeding was alleged to be based upon a fabricated document, or part of tortious conspiracy to injure the party which has commenced the local proceeding.

[221] In the unusual circumstances of this case, Kea's purpose in commencing the New Zealand proceeding is to seek interim and final relief arising from its claim that Mr Wikeley has been involved in a tortious conspiracy to cause injury to it. Its purpose in commencing the proceeding in this court is to seek interim relief in support of the New Zealand proceeding.

[222] Part of the relief which Kea has sought and obtained on an interlocutory basis in both courts, and which it seeks on a final basis in the New Zealand proceeding, is injunctive relief which, if complied with, will have the effect of preventing Mr Wikeley, WFTL and Wikeley Inc from taking steps to enforce the default judgment. But Kea's purpose in seeking such relief is not to prevent the judgment creditor from pursuing remedies to which it is legitimately entitled in Kentucky. Kea's purpose is to prevent the judgment creditor from pursuing remedies in Kentucky, or any other jurisdiction, to which (on Kea's case) it has no entitlement because the default judgment is based on a fabricated document.

[223] I cannot accept that a proceeding brought to restrain the continued perpetration of a fraud, in a foreign jurisdiction where the courts have not yet considered the merits of the fraud argument, is oppressive or vexatious in the sense those words are used in Voth, CSR or Henry.

[224] I am not persuaded that Kea's purpose in bringing the New Zealand proceeding, or the proceeding in this court, means that this court is a clearly inappropriate forum.” (my underlining).

56. The appeal point was really a repetition of the “no fraud exception” point dealt with at [44] above. The appellant focused on the underlined words in the passage above and said that the judge was mistaken in his reasoning because he failed to recognise that, as the Kentucky judgment was regularly entered, the appellant was legitimately entitled to enforce it in Kentucky. This is a semantic argument. It is clear that when the judge used the words underlined at [222] above, he was referring to an entitlement not said (on apparently strong evidence) to derive from fraud. This ground fails.

57. At appeal ground 2(e) the appellant contended that the primary judge had mis-applied the test in Voth. Paragraphs [208], [216] and [230] were identified as having shown that the primary judge considered whether there was another forum available, rather than whether Queensland was an inappropriate forum. In [208] the judge referred to the fact that the appellant was amenable to the jurisdiction of the Queensland courts but, on the expert evidence as to the law in Kentucky, not amenable to the jurisdiction of the Kentucky court. At [216] the primary judge referred to expert evidence before him that the Kentucky court did not have jurisdiction over Kea in respect of its claims about the Coal Agreement. Paragraph [230] of the judgment below was conclusory, and is set out above at [51].

58. The argument advanced was that “an Australian court does not become an appropriate forum to determine any civil claim whenever the proposed defendant happens to be present in the jurisdiction …”.²⁰ This submission mis-states the relevant test. For the judge’s determination was whether or not the Brisbane Supreme Court was a clearly inappropriate forum. This is the test he applied – [230] below. There is nothing in this ground.

Ground 9: Failure to Grant a Permanent Stay

59. It was accepted by the appellant that ground 9 of the notice of appeal was to be decided the same way as ground 2. Ground 9 contended that the primary judge erred in not permanently staying the civil proceeding. Unless ground 2 succeeded, ground 9 could not. Ground 9 must therefore be dismissed.

Grounds 3 and 4: Wikeley Inc

60. Ground 3 was that the primary judge erred in continuing the orders of 21 April against Wikeley Inc when it had not been served and was not a party to the proceeding in Queensland. This point was not taken below. A different related point was: “it is a serious breach of comity for this court to make orders which indirectly control Wikeley Inc, a foreign corporation, in proceedings before a foreign court” – [225] of the judgment below.

61. Paragraph 3(d) of the orders made on 21 April 2023 restrained Mr Wikeley from taking any steps to have Wikeley Inc pursue any litigation or enforce any action based on the Coal Agreement; the assignment of the Kentucky judgment; the motion for substitution in the Kentucky court; the interlocutory motions in the Kentucky court and notices of assignment of the Coal Agreement. Paragraph 3(d) also restrained Mr Wikeley from causing Wikeley Inc to enforce subpoenas issued out of the Kentucky court; obtain documents from any persons under subpoenas issued out of the Kentucky court; read any such document; provide any such document to any other person, or obtain orders for interrogatories from the Kentucky court. By paragraph 3(c) of the orders, Mr Wikeley was ordered to cause Wikeley Inc to withdraw, adjourn or seek a [dis]continuance of the motion for substitution in the Kentucky court, along with other interlocutory motions in that court. Lastly, Mr Wikeley was restrained from causing Wikeley Inc to transfer or encumber any interest he or Wikeley Inc might have in connection with the Coal Agreement or the Kentucky judgment – paragraph 3(e).

62. Wikeley Inc was incorporated by the appellant shortly before the Brisbane proceeding commenced. The appellant is the sole director of Wikeley Inc. His sons are the only shareholders. The company is a foreign registered corporation in Kentucky. The respondent’s case is that Wikeley Inc was incorporated for the purposes of furthering the fraudulent conspiracy against it. It produces quite strong evidence of that, which was uncontradicted by the appellant below.

63. Authorities were cited to the effect that unless all persons whose rights might be affected are joined as parties to litigation, the litigation is not properly constituted. That general proposition may be accepted.

64. The orders made on 21 April, and continued by the judgment below, were not made against Wikeley Inc; the orders were made in personam against the appellant. Wikeley Inc was not heard before the 21 April orders were made, nor was it heard before the 4 October orders were made. The orders do not operate directly upon it. Should it have a compelling reason why the orders against Mr Wikeley ought not to have been made, it would have a right to be heard. As the respondent pointed out, it made no attempt to be heard either after the 21 April orders were made, or at any other time. As the appellant was its sole director, it knew everything there was to know about the Brisbane litigation. The orders made by the primary judge do not bind Wikeley Inc, and he acknowledged as much – [226] below. There is nothing in this point; it was not fairly arguable.

Ground 5: Balance of Convenience

66. At paragraphs 5(a)–(e) of the notice of appeal it was asserted that the primary judge erred in five respects in applying the law as to balance of convenience.

67. At paragraph 5(a) it was said, “The conclusion that there was a serious question to be tried was in error, in the respects set out at Grounds 1–4 above”. It might be thought that ground was merely repetition, but in fact it has been recognised that the strength of the factual case presented as to whether or not there is a serious question to be tried can be weighed in assessing the balance of convenience.²¹ Here, as discussed above, I think that the respondent presented a strong prima facie case that Mr Wikeley was involved in a fraudulent conspiracy against the respondent. It seems to me that properly weighed in the balance of convenience in favour of the respondent. No written or oral arguments were advanced in favour of this ground. I cannot see that it assists the appellant.

68. Paragraph 5(b) asserts that the learned primary judge failed to apply the correct legal test when considering the balance of convenience. The appellant said that in assessing the balance of convenience, the court was required to assess “whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted”.²² That principle may be accepted as correct. The appellant asserted that the primary judge did not apply this legal principle and therefore did not take into account, or adequately take into account, considerations identified at grounds 5(c), (d), (e) and (f) of the notice of appeal. It is convenient to look at the subject matter of grounds 5(c), (d), (e), and (f), individually.

69. Ground 5(c) is that the primary judge afforded “no weight to the curtailment of the appellant’s liberty, or to the respects in which the rights asserted by the respondent required the exercise of an exorbitant jurisdiction, and a suspension of ordinary principles of comity, and thereby failed to take into account considerations that were relevant to the balance of convenience”. No separate written or oral submissions were advanced in relation to this point. It is difficult to see how they could be when the judgment below very carefully considered each of the things identified in this ground of appeal. Paragraphs [257]–[262] of the judgment below specifically consider principles of comity and the extraordinary jurisdiction to prevent a fraud, in the context of the judge’s consideration of balance of convenience. Furthermore, paragraphs [272]–[278] of the judgment below specifically consider “that restraint and caution must be exercised in relation to curtailing or interfering with a person’s travel and freedom of movement” – [274] below.

“[265] The first two of these matters supports the submission that Mr Wikeley’s ability to pursue the substitution motion, and thereby continue to pursue enforcement of the default judgment by Wikeley Inc, is now constrained by orders of the US Bankruptcy Court.

[266] However, the injunctions in paragraph 3 of the 21 April orders extend beyond a restraint on Mr Wikeley causing WFTL or Wikeley Inc from taking steps in existing proceedings. They act to restrain him from taking any steps himself, or causing any other person (not only WFTL or Wikeley Inc) from taking any steps, based on: the Coal Agreement; the default judgment; the statutory demand; the purported assignment of the Coal Agreement; the purported assignment of the default judgment; any notices of the purported assignments; and any subpoenas issued based upon the Coal Agreement or the default judgment. Given the evidence that Mr Wikeley breached the orders made in the New Zealand proceeding by causing the purported assignment of the Coal Agreement and the default judgment from WFTL to Wikeley Inc, I am satisfied that there is continued utility in maintaining the injunctions in paragraph 3 of the 21 April orders notwithstanding the constraints now imposed by the orders of the US Bankruptcy Court.”

73. In fact, contrary to the terms of the notice of appeal, the above passage shows that the primary judge did find that Mr Wikeley might attempt to circumvent the orders made in the New Zealand proceedings in some other way, as he had in the past. I think that was the correct inference to be drawn from all of the evidence before the primary judge. Thus, notwithstanding that the companies WFTL and Wikeley Inc did not seem, at present, able to enforce the Kentucky judgment, I think the judge’s conclusion that there was continuing utility in the orders was the correct conclusion on all the evidence. This ground fails.

74. Ground 5(e) asserted that the primary judge erred because he did not consider “the harm to the appellant from the injunctions continuing”. The difficulty is that the appellant’s case below did not identify, except relatively incidentally, harm to the appellant from the injunctions continuing. I have the written outline put forward on behalf of the appellant below. It is over 75 pages long. So far as harm to the appellant is concerned, the closest the submissions came was something just under three pages (pp 51–54) explaining why the financial undertaking offered by the respondent was inadequate. Another similar point was made in five paragraphs commencing at p 44, where it was contended that at the ex parte hearing Kea failed to bring to the court’s attention evidence that Mr Wikeley had incurred approximately $100,000 in enforcing the Kentucky judgment. This ground fails.

75. At [244] the judge identified the four matters which Mr Wikeley submitted bore on the balance of convenience. Apart from considerations as to the adequacy of the respondent’s undertaking, the other matters were not concerned with harm to Mr Wikeley, but with disentitling conduct on the part of the respondent. In his 4 October 2023 judgment the primary judge carefully considered matters going to the adequacy of damages – [245]–[252] below. Separate complaint is made about that (ground 5(f) below). I cannot see that it has been demonstrated that the primary judge erred by failing to take into account anything put forward by Mr Wikeley below. There is nothing in ground 5(e).

76. Ground 5(f) is concerned with the adequacy of Kea’s undertaking as to damages. In dealing with this topic, the primary judge first noted that at the 12 April 2023 hearing the respondent offered the usual undertaking as to damages, which undertaking continued to apply at the time the 21 April orders were made. The respondent put no evidence as to its financial position or assets before the primary judge, but on the second day’s hearing below, offered security for its undertaking in the sum of $100,000. The judge said:

“[249] During the course of the hearing, Kea offered to provide security for its undertaking in the sum of $100,000. Mr Wikeley submitted that this offer of security was both ‘too little and too late’. I accept that, if Kea does not succeed on its claim for a permanent injunction restraining enforcement of the default judgment, the security now offered by Kea would do little to ensure that Mr Wikeley and his associated entities affected by the injunctions are protected against the financial harm of being held out from enforcing the default judgment.

[250] However, having regard to evidence given by Mr Wikeley as to his ability and his intention to travel overseas, I consider that the sum of $100,000 would provide adequate security for compensation to which Mr Wikeley might become entitled in respect of paragraph 4 of the 21 April orders which prevents him from leaving Australia.

[251] There is no doubt that the provision of security can be required as a condition of the court acting on an undertaking as to damages given by a party who does not appear to have sufficiently disclosed a substantive basis on which to meet any liability on the undertaking in the event that it is called upon. However, the exercise of the discretion must always depend on the circumstances of the case, and exceptional circumstances may warrant departure from the general position that, where the worth of an undertaking is seriously in issue and the question of appropriate security is raised, the price of the granting of the injunction should include the provision of security sufficient to ensure that the party restrained will not be out of pocket if the applicant's underlying claim fails.

[252] It is also important to bear in mind that, although the sufficiency of an undertaking as to damages is an important matter to be considered in assessing where the balance of convenience lies and, on the facts of a particular case, may as a matter of importance and weight be determinative of the question, it is a matter which must be considered as part of the totality of determining the balance of convenience and not as a step anterior thereto.” (footnotes omitted).

77. In considering the undertaking as to damages in the context of all matters in relation to the balance of convenience, the primary judge said:

“[267] As to the question of the sufficiency of Kea’s undertaking as to damages, the conclusion at [249] above weighs against the further continuation of the injunctions. However, the importance of this in the overall balance must be considered in the unusual circumstances of this case: (i) Kea has established an arguable case that the default judgment is based upon a fabricated agreement; (ii) the anti-enforcement injunctions granted by this court have been made on an application for relief under s 26 of the TTPA in support of the New Zealand proceeding; (iii) Mr Wikeley was already subject to anti-enforcement injunctions in similar terms made in the New Zealand proceeding; (iv) consequently, a refusal by this court to grant the interlocutory injunctions sought by Kea would not leave Mr Wikeley free to seek to enforce the default judgment (he could only take steps to enforce the default judgment by acting in contravention of the New Zealand orders); (v) there is evidence that Mr Wikeley was prepared to act in contravention of the orders of the New Zealand court; (vi) Mr Wikeley did not challenge the sufficiency of Kea’s undertaking as to damages in seeking to have the orders made in the New Zealand proceeding set aside.

[268] In that context, I consider that the importance of the worth of the undertaking as the price of the injunction—and the sufficiency of the security offered in support of the undertaking—is greatly diminished. That is because, save in respect of the restriction upon his ability to travel outside Australia, the orders made by this court did not impose any restraint upon Mr Wikeley’s conduct to which he was not already subject by reason of the New Zealand orders (but which he was prepared to contravene).”

78. By this ground of appeal the appellant seeks to challenge both the legal and factual basis for the primary judge’s conclusion. It is said there were no exceptional circumstances to warrant departing from what was said to be a “general rule” that security should have been provided in this case. The judge below did not find that there was such a general rule, although he did find that there was no doubt he had the power to require security as a condition of the court acting on an undertaking as to damages.²³ His Honour noted that whether or not security is required by the court as the price of making an injunction in any particular case will “always depend on the circumstances of the case”. In my view these were both correct statements of the law.²⁴ The further proposition which the judge below states at [252] (extracted above) is also correct in my view.²⁵ I can see no error made by the primary judge in considering the adequacy of the respondent’s undertaking as to damages.

79. It was submitted that the judge’s consideration of the extant orders in New Zealand was irrelevant. It was said that whether or not the respondent should provide security in this Court was a separate question. This must be rejected. First, this Court was acting under the Trans-Tasman Proceedings Act in support of orders made in New Zealand. It could not be irrelevant to consider the terms of the very orders which attracted the statutory jurisdiction of this Court. Furthermore, the orders this Court was asked to make were to enjoin conduct which Mr Wikeley carried out in Brisbane, in apparent defiance of the New Zealand orders. Thirdly, at a factual level it was compelling that the conduct the respondent sought to restrain in Queensland was already enjoined by orders of the New Zealand court. This had a direct impact on whether or not the restraints sought to be imposed by the primary judge could ever cause the appellant damage. The primary judge’s analysis was correct.

80. Matters going to the exorbitant nature of an anti-enforcement injunction, and comity were again urged as reasons why the respondent ought to have given security. Here the primary judge fully considered those matters in deciding whether or not to grant relief, and he did so, as the structure of the appellant’s argument below asked him to do, as a separate and independent matter from considering the adequacy of the undertaking as to damages. In my view that was the correct approach. The strength of the respondent’s case as to the conspiracy to defraud the respondent, and the actions to circumvent the orders of the New Zealand court, were the matters which bore upon questions of private international law going to the issue of an extraordinary injunction which would, by its nature, interfere to some degree with the comity between this Court and the Kentucky court. The primary judge considered that making such orders was justified because of the strong prima facie case before him of an audacious fraud, and contempt of the New Zealand court. In considering the adequacy of the respondent’s undertaking as to damages, matters of harm to the appellant, and others such as WFTL and Wikeley Inc, were relevant, but issues of international comity were not relevant to the adequacy of the undertaking as to damages.

Ground 6: Appellant Restrained from Leaving Australia

82. The orders of 21 April 2023, continued by the orders of 4 October 2023, prevent the appellant leaving Australia until 28 days after the final determination of the New Zealand proceeding, or earlier order. They required delivery up of the appellant’s passport and they restrain him from applying for a new passport. They put him on the Australian Federal Police watch list, so that there is an alert if he attempts to leave Australia. Three challenges were made to these orders.

83. The first, ground 6(a) was that the court “did not exercise great caution, and the case was not a most clear one”. Nothing new is advanced in support of this ground of appeal. It is repeated that the court made no finding that, unless restrained, the appellant would take steps, essentially, to further prosecute what is said to be the fraudulent conspiracy. This assertion is simply wrong, for the reasons given at [73] above.

84. It may be accepted that the restraining orders could not be made except in a most clear case, and except with great caution. It is evident that the primary judge was well aware of that. He cited the case relied upon by the appellant: Australian Securities and Investments Commission v Wiggins²⁷ as authority for this rule. In fact, at [273], the judge said that his understanding of the rule was that the power “should be exercised with great caution and only in a most clear case”. In the next paragraph he said, “It may be readily acknowledged that restraint and caution must be exercised in relation to curtailing or interfering with a person’s travel and freedom of movement.”

85. The submissions made by the appellant were “It is not sufficient for ‘restraint and caution’ to be exercised (Reasons, [274] p 116). The correct principle is that the Court should ‘exercise great caution’ and make an order in only ‘the most clear case’”. This was in the context where the notice of appeal alleged that the primary judge made an error of law. Although it is nowhere stated what that error of law is, it appears from the notice of appeal and the submissions that the appellant asserted the wrong test was applied by the primary judge. It was not, and it was apparent on the face of the judgment that it was not. This submission should not have been made.

86. It was further said that the “appellant’s attendance was properly secured by less invasive orders, such as a money bond”. None was offered.

87. The primary judge found two justifications for continuing the no departure orders. The first was that the order was necessary to ensure that Mr Wikeley complied with the restraining orders. In that regard the primary judge said that Mr Wikeley’s earlier contravention of the orders made by the New Zealand court satisfied him that Mr Wikeley was “a person who is prepared to ignore the authority of court orders when he is not amenable to the court’s powers of enforcement. On the basis of that history, I am satisfied that there is an unacceptable risk that if Mr Wikeley is permitted to leave Australia he would, upon leaving, act in contravention of the injunctions made in paragraph 3 of the 21 April orders” – [276] below.

“[276] As to the first justification, based on the evidence referred to at [264] above, Mr Wikeley submitted that there was no longer any need for the no-departure orders to remain in place. I do not accept that submission in circumstances where the injunctions in paragraph 3 of the 21 April orders extend beyond a restraint on Mr Wikeley causing WFTL or Wikeley Inc from taking steps in existing proceedings. The evidence of Mr Wikeley’s earlier contravention of orders made in the New Zealand proceeding satisfies me that he is a person who is prepared to ignore the authority of court orders when he is not amenable to the court's powers of enforcement. On the basis of that history, I am satisfied that there is an unacceptable risk that if Mr Wikeley is permitted to leave Australia he would, upon leaving, act in contravention of the injunctions made in paragraph 3 of the 21 April orders.”

91. As can be seen, paragraph [276] of the judgment below does not make any assumption about a permanent surrender of Mr Wikeley’s passport or permanent orders that he never leave Australia. It is not surprising that no written or oral submissions were advanced in support of this ground. The assertion in the notice of appeal ought not to have been made.

92. Ground 6(c) challenged the reasoning of the primary judge at [278] below (see the quotation at [88] above). It was said to be illogical because the orders were not expressed to continue until the contempt proceeding, but until the final judgment in New Zealand. This overlooks the fact that the judge put forward two reasons as justifying his orders and that the duration of the orders was expressed to be until 28 days after the New Zealand judgment, or earlier order.

93. There is nothing in this ground.

Ground 7: Material Non-Disclosure at the ex parte Hearing

94. The hearing which led to the 13 April 2023 orders was ex parte. In August 2023 the appellant contended that the respondent made material non-disclosures at the ex parte hearing and that as a result the 13 April 2023 orders should have been discharged. The primary judge was against the appellant on these matters and gave extensive reasons as to why.

95. The appellant reagitates the matters, 11 in total, on this appeal. I will deal with the matters briefly. The point of raising them on appeal is marginal. Even if it were to be shown that some of the matters ought to have been raised at the ex parte hearing, and were not, and that they were material, that would not be a reason to set aside the substantive orders of 4 October 2023, in circumstances where the appellant has exhausted every arguable substantive point against the making of those orders (and some unarguable points).

96. At best, a material non-disclosure at the ex parte hearing might, if deliberate, be a reason that the court would withhold its equitable relief from the respondent. Not even the appellant says that there was any deliberate withholding of information at the ex parte hearing. Further, even if this Court were convinced that the judge was wrong in finding that matters which were material were not drawn to his attention at the ex parte hearing, and exercised his discretion to discharge some of the orders made on 13 April, the appellant would still be guilty of contempt if he breached those orders before they were satisfied. Orders of a superior court are valid until they are set aside.²⁸

97. The first three matters (7(a), (b) and (c)) of alleged non-disclosure relate to the adequacy of the respondent’s undertaking, or security for it, at the ex parte hearing. The appellant submitted that Kea ought to have told the primary judge at the ex parte hearing that it was a company registered in the British Virgin Isles. It did so, and its having done so is recorded in the ex parte judgment delivered on 12 April 2023 – [2]. Further, that the appellant ought to have told the primary judge at the ex parte hearing that it had not provided evidence of its assets and that the court should decline to make the orders sought because no security for the undertaking was offered. As discussed above, there is no rule that security had to be provided for the undertaking which was given to the primary judge at the ex parte hearing. These points then amount to an assertion that the respondent ought to have told the primary judge at the ex parte hearing that it did not provide any evidence as to its assets. No doubt the primary judge was well aware of that; the submission is unrealistic.

98. The next three points (7(d), (e), (f)) relate to the Coal Agreement. The appellant asserted that at the ex parte hearing the respondent did not tell the primary judge that Mr Wikeley had affirmed an affidavit in the New Zealand proceedings deposing to the genuineness of the Coal Agreement and that two other people had provided affidavits which provided “some corroboration for the evidence of Mr Wikeley that the Coal Agreement was created in 2012, and not a recent fabrication, as Kea alleged” – [119](e) of the judgment below. As to this the judge below found:

“[122] As to the evidence of Mr Wikeley and others filed in the New Zealand proceeding, Kea points to the fact that these affidavits were exhibited to an affidavit read at the 12 April hearing, and were addressed in the 2023 NZ Judgment which was provided to the court. However, during the 12 April hearing, the court's attention was not drawn specifically to the relevant affidavits or to the parts of the 2023 NZ Judgment which referred to those affidavits. In this respect, Kea’s reliance upon oral submissions at the 12 April hearing which referred to Mr Wikeley’s evidence, and Gault J’s treatment of that evidence, is misplaced. Those submissions were directed to paragraph 15 of the 2022 NZ Judgment, which was delivered before the relevant affidavits were filed in the New Zealand proceeding, and addressed evidence filed by Mr Wikeley in the Kentucky proceeding. On that basis, I do not accept that the court’s attention was drawn to the affidavits filed in the New Zealand proceeding.” (footnotes omitted).

99. In the notice of contention the respondent challenged this finding and pointed to a part of the transcript²⁹ of the hearing on 12 April 2023 where counsel did specifically draw his Honour’s attention to Mr Wikeley’s affidavit in the New Zealand proceedings. While I accept that the affidavit was drawn to the primary judge’s attention on 12 April, that was in relation to another subject matter. The subject matter of evidence supporting the genuineness of the Coal Agreement was not drawn to the judge’s attention. Thus I reject the submission that the judge below erred in fact, and the third ground in the notice of contention must fail.

100. Having found the affidavits were not drawn to his attention, the judge below considered whether or not there had been a material non-disclosure. He found that there had not been. So far as Mr Wikeley’s affidavit was concerned, he found that it consisted of brief and general statements which were unlikely to have influenced him in deciding the application. He said “Importantly, Mr Wikeley’s affidavit provided no evidence of the execution of the Coal Agreement by Kea or the circumstances in which such execution is said to have occurred. Those matters are critical to the assessment of the genuineness or otherwise of the Coal Agreement and, more broadly, the strength or otherwise of Kea’s claim of tortious conspiracy.” As to the other two witnesses, his Honour described their evidence as hearsay, brief and in general terms. He said it would not have had a material bearing on his consideration as to whether or not there was a serious question to be tried in relation to the tortious conspiracy – [129] below.

101. Having regard to the statements in the affidavits relied upon, I cannot see that the judge was in error in deciding that there had been no material non-disclosure in relation to these affidavits. His Honour’s description of the material was accurate. No reason was advanced in the notice of appeal, the written outline of argument, or the oral submissions for the appellant as to how his Honour’s conclusion was erroneous; the appellant simply gainsaid the conclusions in the judgment without any elaboration.

102. The remaining five points made by the appellant (7(g), (h), (i), (j), (k)) concern matters which the appellant says were weaknesses in the respondent’s case at the ex parte hearing. It is said the respondent ought to have told the primary judge about them because they were weaknesses. Written argument was advanced only in relation to the penultimate point (j).

103. The point at (g) was that the respondent failed to tell the judge at the ex parte hearing that its delay might be a reason for not granting it relief. The judge below was not convinced there had been any non-disclosure. He records that at the ex parte hearing he was aware of the four month delay between Kea being made aware of the Kentucky judgment and its commencing the New Zealand proceedings, and notes that in the written outline given to him that day, Kea identified delay as a relevant consideration against it – [104] and [106] below. I can see no error in the judge’s reasoning; there is nothing in this point.

“[139] Mr Wikeley submitted that Kea failed to draw the court's attention to two defences available to him:

that the causes of action relied on by Kea do not support the claim for an anti-enforccment injunction; and

that it would be a serious breach of comity to indirectly restrain Wikeley Inc – a foreign corporation – in respect of the proceeding in the Kentucky Court.

[140] I accept that Kea did not draw these potential defences to the court's attention at the 12 April hearing. It will be necessary to address the merits of the suggested defences later in these reasons. However, for the reasons already addressed at [115] to [118] above, I am not persuaded that, in the circumstances of urgency in which Kea brought its ex parte application, its conduct in failing to draw these potential defences to the court’s attention amounted to a material non-disclosure.” (footnotes omitted).

105. No submissions were advanced in support of this ground of appeal. I cannot see that the judge was in error. The supposed defences available to Mr Wikeley did not succeed before the judge at the inter partes hearing, and, so far as they have been raised on appeal, they have once again failed. In those circumstances it is hard to see, in addition to the matters raised by the primary judge, that there was a material non-disclosure.

106. As to the point at (i), the appellant relied upon the primary judge’s having found that the proper law of the tortious conspiracy was Kentucky, to argue that the respondent failed to make proper disclosure at the ex parte hearing because, at that hearing it argued that the proper law of the tort was Queensland.

107. In my view this ground of appeal is not arguable. It was not argued below. At best for the appellant, counsel before the primary judge at the ex parte hearing made an incorrect submission as to the proper law of the tort. The aridity of the point is demonstrated by the fact that the appellant’s submission before the primary judge was that, as there was no evidence as to the law of Kentucky, it should be presumed to be the same as Queensland law, and that he should proceed on that basis. This was also the basis upon which the appellant accepted this appeal should be heard.³⁰

108. The point at (j) was that the respondent did not sufficiently instruct the primary judge at the ex parte hearing as to the principles relating to anti-suit injunctions and anti-enforcement injunctions. To begin with, the primary judge accepted that a sufficient examination of the law was made by the respondent and given to him at the ex parte hearing. In any event he said, “I consider that, given the urgency attending the 12 April hearing, Kea provided adequate disclosure of the principles which apply to an application for an anti-suit injunction or an anti-enforcement injunction.”

109. On this appeal the appellant argued again that the respondent gave the primary judge a wrong statement of law at the ex parte hearing because it referred him to the judgment of Gault J in New Zealand. The difficulty for the appellant is the same one identified by the primary judge at [101] of the judgment below: “Gault J’s discussion included reference to CSR and numerous English decisions which have also been applied in Australia”. That is, the very points which the appellant complains were not given to the primary judge were given to him, and are stated in the judgment below to have been given to him. This point is not arguable.

110. Finally, at (k) the appellant submits that the respondent failed to bring the primary judge’s attention to evidence that Mr Wikeley had incurred about $100,000 in pursuing enforcement of the Kentucky judgment. Although the affidavit sworn by Mr Wikeley to that effect was put before the primary judge, it was not specifically drawn to his attention – [134] below. As to this the primary judge said:

“[136] Mr Wikeley did not provide any further information about what the expenses related to, when they were paid, or to whom they were paid. He did not provide any documentation evidencing the expenses or the fact that he had paid such expenses. That somewhat surprising lack of detailed information is relevant because WFTL also asserted, in submissions filed in the Kentucky proceeding in response to Kea’s motion to set aside the default judgment, that it engaged the forensic accountants who undertook the task of identifying the assets of Kea and Sir Owen Glenn.

[137] In circumstances where Kea’s application for interim relief was premised upon Mr Wikeley's alleged involvement in a major and ongoing fraudulent conspiracy, I am not persuaded that Mr Wikeley’s bare statement as to having incurred expenses in the stated amount was material in the sense of being likely to influence the court in acceding to the application, or being a matter of substance in the decision-making process. That is because, even if all relevant statements concerning the expenses incurred after entry of the default judgment were brought to the court's attention, there would have been significant uncertainty as to what expenses were incurred and which entity incurred those expenses. That is, even if the evidence in Mr Wikeley’s affidavit had been brought to the court’s attention, that evidence would not have provided the court with any real confidence that expenses of more than $100,000 had in fact been incurred or that Mr Wikeley had met those expenses.

[138] Accordingly, although Kea did not draw the court’s attention to this evidence at the 12 April hearing, I am not satisfied that this amounted to a material non-disclosure on the application for ex parte relief.” (footnotes omitted).

111. The only written or oral material which the appellant puts before the Court as to this ground of appeal is that contained in the notice of appeal itself:

“(k) the learned primary Judge erred in finding (Reasons [137]–[138]) that the non-disclosure identified at Reasons [134] was not material, when it was.”

That is not an argument; it is merely gainsaying the judge’s conclusion. It totally fails to come to terms with the judge’s reasoning, much less identify an error in it.

112. There is nothing in ground 7 of this appeal.

Ground 8: Failure to Stay Application for Punishment of Contempt

113. This ground is associated with ground 7. The appellant’s submission is:

“On 20 April 2023, the respondent filed an application charging the appellant with contempt of Court, alleging failures to comply with the orders made ex parte on 13 April 2023. If the orders made on 12 and 13 April 2023 are set aside due to the respondent’s breach of its obligation of utmost good faith to make full disclosure, the application for contempt should be stayed.” (footnotes omitted).

114. As I do not believe that there was any material non-disclosure prior to the orders of 12 and 13 April 2023, I need not consider this ground. However, I note that it is legally untenable having regard to the authority collected at footnote 29 above.

Notice of Contention

115. By its notice of contention the respondent raises four issues. The first two relate to the question of the judge’s having decided that the Supreme Court in Brisbane was not a clearly inappropriate forum.

116. Ground 1 involved the contention that on a correct understanding of ss 25 and 26 of the Trans-Tasman Proceedings Act, the primary judge need not have determined this as a preliminary question in accordance with Voth. It was submitted that the question did not arise in circumstances where the Australian court would not finally determine the proceeding; the New Zealand court would. It was contended that the Act left the question as to a clearly inappropriate forum to the New Zealand court; the Queensland court needed to concern itself only with whether or not the statutory test, in ss 25 and 26 of the Trans-Tasman Proceedings Act was satisfied. There is no authority on this point. Argument rested solely on a statutory interpretation.

117. It might be said immediately that the point is not of great moment having regard to the provisions at ss 26(1)(a) and 26(1)(b) of the Act. I will reproduce the sections again for convenience:

“25 Application to an Australian court for interim relief

A party or intended party to a civil proceeding commenced or to be commenced in a New Zealand court may apply to any of the following Australian courts for interim relief (other than a warrant for the arrest of property) in support of the New Zealand proceeding:

the Federal Court;

the Federal Circuit Family Court of Australia (Division 1);

the Supreme Court of a State or Territory;

another Australian court prescribed by the regulations.

26 Giving of interim relief in support of a New Zealand proceeding

On an application under section 25, the Australian court may give interim relief (other than a warrant for the arrest of property) in the terms it considers appropriate if:

the court considers it appropriate to give the interim relief in support of the New Zealand proceeding;

if a proceeding similar to the New Zealand proceeding had been commenced in the court, the court:

would have had the power to give the interim relief in that similar proceeding; and

would have given the interim relief in that similar proceeding.

…

This section does not affect any powers of the Australian court to give interim relief in support of the New Zealand proceeding.”

118. The judge below dealt with this issue as follows:

“[83] There was an issue whether the question of clearly inappropriate forum, as understood in Voth, arises for determination on an application for interim relief under ss 25 and 26 of the TTPA.

[84] Kea submitted that the question does not arise for consideration in the context of such an application. That submission was based on the legislative history of s 26. Kea relied upon the repeal of s 26(2) from the TTPA and the explanation for that repeal. The repealed subsection had provided that an Australian court may refuse to give the interim relief if it considered that it had no jurisdiction, apart from s 26, in relation to the subject matter of the New Zealand proceeding and for that reason it would be inexpedient to give the interim relief. That was said to be unnecessary because the Australian court would already have considered issues of jurisdiction and expediency when assessing whether it is appropriate to grant relief under s 26(1)(a).

[85] I do not accept Kea’s submission. The question whether an Australian court is a clearly appropriate forum is different to issues of jurisdiction and expediency. Where the interim relief sought under ss 25 and 26 of the TTPA is an anti-suit injunction or an anti-enforcement injunction, the condition imposed by s 26(1)(b)(ii) – that, if a proceeding similar to the New Zealand proceeding had been commenced, the Australian court would have given the interim relief – must involve a consideration of the question whether the Australian court is a clearly inappropriate forum.” (footnotes omitted).

119. In my view the reasons and conclusion of the primary judge were correct. I would add that the question for the primary judge here was whether or not the Supreme Court of Queensland was a clearly inappropriate forum to grant the interlocutory injunction sought by the respondent to this appeal. The question was not whether or not New Zealand was a clearly inappropriate forum for the principal action.

120. Ground 2 was peculiar to evidentiary matters before the primary judge and would not arise in another case. In circumstances where I would dismiss the appeal, there is no need to separately consider it.

121. Ground 3 has already been determined – [99] above.

122. Ground 4 was that the primary judge took an unduly restrictive view of the cases concerning when, as a matter of private international law, a court will grant relief including an anti-enforcement injunction in respect of a foreign default judgment which has been obtained by fraud. The cases dealing with these topics are few, and necessarily each focused on their own facts. Where I am content that the primary judge was correct to grant the relief he did, it is unnecessary, and undesirable, to consider this point on what must necessarily be a hypothetical basis.

Disposition

123. Although the notice of appeal was expressed to be in relation to costs orders made by the primary judge on 27 October 2023, no particular ground of appeal related to this, and no separate arguments were made.

124. The appeal must be dismissed with costs. The notice of contention should be dismissed. I would not make any separate order for costs in relation to the notice of contention. The matters raised in it were very closely connected to matters raised on the appeal itself and I cannot see that any substantial time or cost was involved in making or responding to the contentions advanced by the respondent.

125. WILSON J: I agree with the reasons and orders of Dalton JA.

126. CROWLEY J: I agree with Dalton JA.

Footnotes

1. Kea Investments Ltd v Wikeley [2023] QSC 79. ↩

2. Glenn v Watson [2018] EWHC 2016 (Ch); Kea Investments Ltd v Watson [2020] EWHC 2599 (Ch); Kea Investments Ltd v Watson [2020] EWHC 2796 (Ch). ↩

3. Wikeley Family Trustee Ltd v Kea Investments Ltd (Commonwealth of Kentucky, Fayette Circuit Court, 9th Division, Civil Action No. 21-CI-02508 (referred to in these reasons as the Kentucky judgment or Kentucky proceeding). ↩

4. Kea Investments Ltd v Wikeley Family Trustee Ltd [2022] NZHC 2881, [6]–[15] (citations omitted). ↩

5. These matters are drawn from paragraphs [5]–[9] of the primary judge’s Reasons for Judgment delivered 4 October 2023; Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215. ↩

6. (2006) 227 CLR 57. ↩

7. (1968) 118 CLR 618, 622–623. ↩

8. (1997) 69 SASR 440, 442–443. ↩

9. (1940) 64 CLR 130. ↩

10. (1882) 10 QBD 295. ↩

11. [2020] EWCA Civ 599. ↩

12. [1928] 2 KB 144. ↩