Last week, the Supreme Court delivered its reasons in Kea Investments Ltd v Wikeley [2026] NZSC 97.
Those reasons explain why the Court, in its 10 November 2025 results judgment (see our earlier update here), allowed Kea’s appeal and reinstated permanent worldwide anti-suit and anti-enforcement injunctions against the respondents, which had been granted by the High Court but overturned by the Court of Appeal.
Worldwide anti-suit and anti-enforcement injunctions are rarely considered by the New Zealand courts. The reasons judgment, given by Kós J for a unanimous bench, is therefore an important statement of New Zealand law. It examines the role of comity – that is, the mutual respect and deference courts in different jurisdictions accord one another – in cases of proven fraud, and the foundations of injunctive relief against foreign proceedings.
Background
The case concerned an elaborate cross-border fraud perpetrated against Kea Investments Ltd, a British Virgin Islands (BVI) company associated with Sir Owen Glenn. The respondents, including Wikeley Family Trustee Limited (WFTL), a New Zealand company controlled by Mr Wikeley, were involved in forging a fictitious “Coal Agreement” and using it to obtain a default judgment for over US$123 million in the Fayette Circuit Court, Kentucky. The motive was to defeat enforcement of a separate English judgment against Eric Watson, a former business partner of Mr Glenn, arising from an unrelated fraud. A fundamental flaw in Mr Wikeley’s elaborate fraudulent enterprise, however, was that WFTL, the Kentucky judgment creditor, was a New Zealand-incorporated company and therefore remained subject to the jurisdiction of the New Zealand courts.
The High Court found the Coal Agreement was a forgery, declared the default judgment in Kentucky to be the product of fraud, and granted permanent anti-suit and anti-enforcement injunctions restraining the respondents from enforcing or relying on the Kentucky judgment anywhere in the world. The Court of Appeal upheld the fraud findings but discharged the injunctions, calling them “exorbitant”1 and holding that comity required New Zealand courts to “keep their powder dry”2 until Kea had exhausted its Kentucky appeals.
What are the requirements for anti-suit and anti-enforcement injunctions?
The Supreme Court confirmed that four elements must be established for an anti-suit injunction:
The domestic court must have personal jurisdiction over the defendant.
The court must have a sufficient connection to the dispute to be the natural forum for the proceeding and for the grant of the order.
The defendant’s conduct in threatening or bringing the foreign proceedings must be wrongful – that is, unconscionable, vexatious or oppressive.
The interests of justice must require the injunction - it must be necessary.
It held that anti-enforcement injunctions serve a similar function and their underlying requirements are essentially the same, rejecting any distinct exceptional circumstances jurisdictional threshold for anti-enforcement relief. Such injunctions are only rarely granted, it held, because it is only in rare cases that the requirements are met – not because of any additional exceptional circumstances gateway. The Court also rejected the Court of Appeal’s test, which focused on whether the foreign court acted in excess of its international law jurisdiction or violated natural justice, as wrongly directing attention to the quality of foreign justice rather than the defendant’s conduct.
What is the in personam rationale reaffirmed?
The Court of Appeal had described the distinction between an order directed at the party and one directed at the foreign court as a “pretence”. The Supreme Court disagreed, holding that the in personam character of the remedy “remains fundamental”3. In personam relief, an order that binds the person, not the foreign court - is a cornerstone of equity’s jurisdiction over parties within its reach. The court emphasised that, in granting relief, it is telling the defendant what they may or may not do, without purporting to direct the foreign tribunal. The Court drew an analogy with worldwide freezing orders, which constrain dealings with foreign assets yet ordinarily give rise to few comity concerns.
Fraud recalibrates comity
The heart of the judgment is its treatment of comity in proven fraud cases. The Court accepted that comity necessitates caution, but held it is “a concept of very elastic content” that “does not entail blind deference”4. Fraud reframes comity in two respects: first, it is “a paradigm, indeed extreme, example of vexatious and oppressive conduct”; secondly, it engages a “mutual interest in both courts to act quickly and effectively”5. The Court endorsed the observation that “the grosser the perceived misconduct of the party to be restrained, the less will a sense of judicial comity constrain the court”6. It concluded that the orders “enhance, rather than erode, comity”7, noting: “If not in this case, then when? If not by the New Zealand High Court, then by whom?”8.
No requirement to exhaust foreign remedies before bringing a claim
The Court firmly rejected any general requirement to exhaust appeal rights in the foreign jurisdiction before seeking domestic relief. The notion that New Zealand courts should wait to see whether the Kentucky courts do the “correct” thing was “not only invidious but the reverse of comity”. Practically, the US$100 million bond required for a stay of the Kentucky judgment made that appeal route illusory.
What is the significance of the judgment creditor’s liquidation?
The Court held that WFTL’s interim liquidation further reframed the comity analysis. Managed by independent liquidators who are officers of the Court, WFTL’s representatives acknowledged they could take no responsible or lawful action other than to have the default judgment discharged. The injunctions were “consistent with protecting the Court’s processes and officers, including from perpetuating fraud”.
What are the practical implications of Kea v Wikeley?
Kea v Wikeley is now the leading New Zealand authority on anti-enforcement injunctions. As we suggested in our earlier update, the Supreme Court’s intervention signals a more robust approach to the use of anti-suit and anti-enforcement injunctions in cases of established fraud, including where foreign proceedings are ongoing. Although there may be few cases where the fraud in question is as obvious as in Kea, the Supreme Court’s decision resets the threshold for relief, including that there is no separate “exceptional circumstances” gateway for anti-enforcement relief and the Court’s focus will be squarely on the defendant’s conduct. It positions comity not as a barrier to relief, but as an instrument of international judicial cooperation against cross-border fraud - a message likely to resonate across common law jurisdictions grappling with fraudulently procured judgments. The decision confirms that New Zealand courts will act decisively to police the misuse of their own corporate and trust structures in offshore fraud.
What lessons does the decision offer for cross-border dispute resolution practitioners?
Move quickly: The Court credited the “commendable despatch” of the interim orders. Without them, control of WFTL and the default judgment would have passed beyond the New Zealand jurisdiction.
Identify a jurisdictional hook: Because the remedy is in personam, the threshold question is whether the defendant is within the domestic court’s reach. WFTL was reachable as a New Zealand company; Mr Wikeley, resident in Australia, was reachable via the Trans-Tasman Proceedings Act.
Use insolvency process: Interim liquidation neutralised the enforcement threat, placed the judgment in the hands of officers of the Court, and strengthened the comity analysis. Recognition as a “foreign main proceeding” under the US Bankruptcy Code stayed the Kentucky proceedings and secured recognition of the New Zealand declarations.
Costs follow fraud: The Court awarded substantially increased costs (NZ$250,000 against standard costs of approximately $63,000) payable jointly and severally, including against parties who did not actively participate. Having “set the ball rolling, in a game they should not have played”, it was no answer to say they then played well.
If you have any questions about this article, please get in touch with the contacts listed or your usual Bell Gully adviser.
This update is intended as general information only. It is not intended as legal advice and should not be relied upon as such. You should seek specific legal advice in relation to any particular matter.
1 Wikeley v Kea Investments Ltd [2024] NZCA 609 at [187].
2 Wikeley v Kea Investments Ltd [2024] NZCA 609 at [194].
3 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [105].
4 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [115].
5 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [117].
6 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [119].
7 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [128].
8 Kea Investments Ltd v Wikeley [2026] NZSC 97 at [136].
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
