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Enforcement of foreign child maintenance orders: Ku v Pittman

Enforcement of foreign child maintenance orders: Ku v Pittman

There are several different regimes in New Zealand that apply to the enforcement of overseas child maintenance. This means it is important to work out in each case which regime may be applicable.

There are:

(The United Nations Convention for the Recovery of Maintenance Abroad 268 UNTS 3 (signed 20 June 1956, entered into force 25 May 1957) (UNCRAM), on the other hand, does not itself provide for the enforcement of maintenance decisions; rather, it provides for the transmission of applications for maintenance orders.)

In Ku v Pittman [2025] NZHC 3050, the High Court declined summary judgment to enforce payment for child maintenance pursuant to an order made by the District Court of Hong Kong. The order required the defendant to pay maintenance “until each [child] attains the age of 18 years or completes full time tertiary education (first undergraduate degree), whichever is later…”. There was an issue at what point one of the children had completed their tertiary education for the purposes of the order. The defendant maintained that he had already satisfied his obligations because, under the order, he was only required to pay child support for three years of tertiary study. The plaintiff’s position was that, properly interpreted, the order required the defendant to pay support for an additional two years, until the child had completed their double degree.

The plaintiff sought enforcement at common law. Under common law rules, a foreign judgment must be for a definite sum of money or one which can be calculated arithmetically; and it must be final and conclusive. Associate Judge Paulsen denied the application because, based on the available evidence, the order was not (a) sufficiently clear to satisfy the common law requirement that it be for a “definite sum of money” ([37]-[46]) and (b) final and conclusive, because the order appeared to be subject to review (at [47]-[53]).

There was no discussion in the judgment whether the order could be registered or enforced under another one of the regimes. The Hague Convention was not applicable because Hong Kong is not a signatory (see my earlier post, here, on the potentially transformative effect of the Convention). The 1934 Act extends to Hong Kong (see Reciprocal Enforcement of Judgments (Hong Kong) Order 1957 (SR 1957/263)) but was inapplicable because the order was an order from an inferior court. Neither was s 172 of the Senior Courts Act available because Hong Kong is not a Commonwealth country. However, Hong Kong is a designated country for the purposes of s 136 of the FPA so, in principle, registration under s 136 may have been available.

In this note, I consider:

 

Section 136, FPA

The common law is ill-suited to the enforcement of maintenance orders. The main reason for this is that the common law requires orders to be final and conclusive and for a fixed amount; yet maintenance orders tend to involve periodic payments and are often subject to review to take account of changing circumstances. This means that, under common law, plaintiffs can only recover lump sum payments for maintenance arrears, and only if the foreign court does not have the power to vary the payments retrospectively (see Hook & Wass at [9.168]). Simply put, the common law rules do not accommodate the forward-looking and dynamic nature of maintenance orders.

New Zealand long ago recognised the importance of an effective cross-border regime for maintenance. In the early 20th Century, there was a problem with men financially abandoning their families to work elsewhere in the British empire. The Destitute Persons Act 1910 provided for the enforcement of orders “made in any part of the Commonwealth of Australia, or elsewhere out of New Zealand”, following negotiation of reciprocal arrangements with the Australian states (see JD McClean Recognition of Family Judgments in the Commonwealth (Butterworths, London, 1983) at 117). At the Imperial Conference of 1911, New Zealand Prime Minister Ward proposed a resolution that “in order to relieve both wives and children and the poor relief burdens of the United Kingdom and her dependencies, reciprocal provisions should be made throughout the constituent parts of the Empire with respect to destitute and deserted persons” (“Minutes of Proceedings of the Imperial Conference, 1911” (Appendix to the Journals of the House of Representatives, 1911 Session I, A-04) at 206). The initiative eventually led to legislation for the reciprocal recognition and enforcement of maintenance orders made in other Commonwealth and designated countries.

This regime, with some changes, is still given effect in ss 135-143 of the FPA. It applies to maintenance orders from Hong Kong, which is a designated country by virtue of Family Proceedings (Designated Country) Notice 2002 (SR 2002/94).

The regime draws a distinction between final orders and provisional orders. This note is concerned only with final orders. Provisional orders are orders that are made on a provisional basis in the original court and that can then be confirmed in New Zealand, and vice versa.

Under s 136, a maintenance order that “has been made against any person by any court in a … designated country” may be registered in New Zealand by filing a certified copy of the order in the District Court in the prescribed manner. The term maintenance order is defined as “a subsisting order… for the payment by any person of a periodical sum of money towards the maintenance of a person whom the first-mentioned person is, according to the law in force in the place where the order is made, liable to maintain” (s 2, emphasis added). The fact that the order could not have been made in New Zealand is not a basis for refusing registration of the order (Steele v Steele [1993] NZFLR 282 (DC) at 284). The definition excludes orders for lump sum payments that are not orders “for the payment … of a periodical sum”.

Registration is not discretionary. It is an “administrative act” (see McClean at [5.07]). Thus, s 137 provides for the registration of an order to be set aside, but the specified circumstances are limited. An order must be set aside if the order is not one to which s 136 applies (s 137(a)). There are no jurisdictional requirements or defences (contrast s 6 of the Reciprocal Enforcement of Foreign Judgments Act 1934).

Section 141 clarifies that a registered order “shall remain an order of the court of the country in which the country was made”. However, the New Zealand court has the power to discharge, vary or suspend the registered order, and to remit or suspend arrears due under the order (s 142B). For the purposes of an application for variation, the order is treated “as if [it] had been made in New Zealand on the date when it was made outside New Zealand”. In the absence of statutory guidance as to the substantive principles to be applied to such an application, courts have relied on s 145C by analogy, which deals with applications for child maintenance from countries that are party to the United Nations Convention for the Recovery of Maintenance Abroad 268 UNTS 3 (signed 20 June 1956, entered into force 25 May 1957) (UNCRAM), following Judge Inglis’ approach in H v H FC New Plymouth FP 043/258/01, 28 May 2003. This Convention does not itself provide for the enforcement of maintenance decisions; rather, it provides for the transmission of applications for maintenance orders, and s 145C sets out the substantive principles for the determination of such applications.

 

Does 136 of the FPA exclude the common law?

The fact that the order was potentially registrable under s 136 raises the question of the relationship between s 136 and the common law. Does s 136 exclude the court’s common law jurisdiction of enforcement of arrears? Was the application for summary judgment in Ku bound to fail because the Court lacked jurisdiction to enforce the order under the common law?

In Eilenberg v Gutierrez [2017] NZCA 270, [2017] NZFLR 471, the Court of Appeal held that the common law was not excluded in cases falling within UNCRAM. As noted above, the purpose of UNCRAM is to assist applicants with obtaining orders from Convention countries by providing a mechanism for transmitting applications. It does not itself provide for the enforcement of foreign maintenance orders. In these circumstances, the Court of Appeal concluded that Parliament could not have intended to exclude the common law rules (see Jack Wass “The enforcement of foreign maintenance orders: what role for the common law?” [2017] NZLJ 410).

The case is less clear-cut for s 136 because, unlike UNCRAM, it is concerned with enforcement. There is also an argument that the court’s power in s 142B to discharge, vary or suspend the registered order acts as a safety net that does not exist at common law, and that Parliament would have intended the debtor to be able to rely on this safety net (and not be at the whim of the creditor’s decision to select the common law route instead). Thus, Jack Wass notes that “it would be open to construe pt 8 [of the FPA] as reflecting a Parliamentary intention that New Zealand courts should not lend their compulsive powers to the enforcement of foreign maintenance awards that have not been assessed [or cannot be assessed] according to New Zealand policy considerations by a New Zealand court” ([2017] NZLJ 410).

Jack Wass also points out, however, that the FPA does not include express words to exclude the court’s inherent jurisdiction to enforce foreign judgments (unlike the Reciprocal Enforcement of Judgments Act 1934, in s 8; cf also Moylan Assurance Consultants Pty Ltd v Hughes HC Auckland CP 951/89, 4 March 1991, where the Court held that a judgment creditor may elect to invoke s 172 or the common law).

Overall, the better view seems to be that s 136 (and its predecessor) was not intended to exclude the common law.

 

Whether the order could have been registered under s 136

In Ku v Pittman, the order was an order from Hong Kong, which is a designated country for the purposes of s 136. The plaintiff sought to recover arrears due under the order. Such arrears would have fallen within the ambit of s 136 even though they were due before the date of registration (see Wedge v Wedge [1960] NZLR 373). The fact that the order could not have been made in the same terms under New Zealand law – for example, because the children might have been too told to qualify for child support towards the end of their degree – would not be a basis for refusing registration. The relevant definition of “maintenance order” does not include an age limit. It refers to maintenance that the defendant is liable to pay “according to the law in force in the place where the order is made” (see above).

The Hong Kong order was not enforceable on summary judgment because (a) it was unclear and (b) it appeared to be subject to review. The latter reason – that it was subject to review – would not stand in the way of registration under s 136, a key purpose of which is to provide for the registration of reviewable orders. This leaves the question whether the order would be registrable under s 136 despite being unclear. Here, the defendant argued that he had already satisfied his obligations because, for the purposes of the order, “full time tertiary education (first undergraduate degree)” meant the child’s first three years of study; while the plaintiff argued that the defendant had to support the child for the entire five years of the child’s double degree.

If the defendant had already met his obligations under the order, a New Zealand court would refuse registration because there would be no “subsisting” order within the meaning of s 136. There is no provision in the FPA to seek clarification of the order from the original court (cf Jansen v Jansen [2001] NZFLR 1014, in relation to a provisional order). Presumably, it is up to the person seeking to register the order to show that there is a subsisting order for the payment of maintenance. Rule 60 of the Family Proceedings Rules 1981 simply refers to registration of “a certified copy” of the order, but in practice, the registering party probably needs to obtain a certificate from the original court specifying the sum owing pursuant to the order (see r 61, Form FP 34). Unlike in other Commonwealth countries, the FPA does not refer to the use of official channels for the transmission of final orders (see McClean at [6.03]-[6.04]).

If, on the other hand, the New Zealand court accepts that there is a subsisting order, it would be required to register it. The respondent could then apply for a variation of the order, or for remission of arrears, under s 142B. The court would apply New Zealand law (in the form of the principles contained in s 145C), and the order is treated “as if [it] had been made in New Zealand on the date when it was made outside New Zealand” (see above).

This procedure gives rise to some tension, resulting from the combination of, on the one hand, enforcement of the final order as made under the original law with, on the other hand, variation (etc) under s 142B in accordance with New Zealand law as the lex fori. For example, under s 145C(1)(c), the maximum age for child maintenance is 20 years, but it is not clear whether this should be a relevant consideration in an application for variation or remission if, under the law of Hong Kong, there was an obligation to pay maintenance past the age of 20, considering that the order must be treated “as if [it] had been made in New Zealand”.

There is an argument that, when applying s 142B, the court should have regard to the law of the original court (cf Aqbal Singh and others “Report of the Law Reform Committee on Reciprocal Enforcement of Maintenance Orders” (Singapore Academy of Law, 2012) at [65]). It should proceed on the basis that the order was properly made, even if it does not accord with New Zealand law, and confine the application of New Zealand law to matters arising in the ongoing operation and enforcement of the order (for example, whether there was a change of circumstances that requires the order to be varied).

 

Christchurch Conference on International and Transnational Legal Frameworks 2026

On 12-13 March 2026, the Faculty of Law at the University of Canterbury is hosting the “Christchurch Conference on International and Transnational Legal Frameworks 2026”, which brings together the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law (HCCH).

Further details, including a draft programme, are available here.

Fraud in foreign judgments

Fraud in foreign judgments

(By Jack Wass, Stout Street Chambers)

The New Zealand Court of Appeal recently released an important judgment concerning the circumstances in which the New Zealand court may refuse to recognise a foreign judgment on the ground that it was procured by fraud.

Shi v Hebei Huaneng Industrial Development Company Ltd [2025] NZCA 672 was an appeal against a decision of the High Court to recognise a 2019 default judgment given by a Chinese court arising out of a guarantee given by Mr Shi. The proceeding has been the subject of a number of interlocutory judgments, including arguments (not apparently pursued at trial) about the extent to which judgments of Chinese courts should be denied recognition because of alleged potential for political influence: see an earlier blog post here and Jaiden Tucker’s thesis, cited by the Court of Appeal.

On appeal, Mr Shi relied on two defences to recognition. The first was a breach of natural justice, which the Court of Appeal promptly rejected. The second was an argument that the Chinese judgment had been procured by fraud. The Court of Appeal allowed Mr Shi to run this argument for the first time on appeal and remitted the matter to the High Court for trial on that point.

Three points of interest may be noted.

First, the Court of Appeal affirmed the continued application of the rule in Abouloff v Oppenheimer & Co (1882) 10 QBD 295 that the defence of fraud may be advanced by a judgment debtor whether or not they could have run the defence at trial in the foreign court (or did so unsuccessfully).

Second, the Court adopted the principle—found in cases under the Reciprocal Enforcement of Judgments Act 1934—that a trial on the question of fraud is necessary where the court is left with a sense of “uneasiness”: Svirskis v Gibson [1977] 2 NZLR 4 (CA). Although Mr Shi had not raised the fraud allegation in the enforcement proceedings in the High Court, the Court of Appeal was prepared to admit further evidence going to that issue, and ultimately allow the appeal, because the evidence was sufficient to give rise to that sense of uneasiness. Although Mr Shi may count himself lucky to have been given in effect a third chance to make his case, the logic of the Court of Appeal’s decision was that if Abouloff required the enforcing court to form its own view on the allegation of fraud, and the evidence produced on appeal gave rise to an arguable case on the point, it needed to be properly determined.

Third, the case illustrates the complexities involved in the enforcement of default judgments. Although they are enforceable in principle, the fact that they only involve participation by one party gives rise to risks. The alleged fraud in this case was not of wholesale fabrication or bribery, but that the plaintiff failed to disclose documents (including apparently a rollover of the principal agreements without a corresponding rollover of Mr Shi’s guarantee) that could have entirely exonerated Mr Shi. The line between challenging the merits of a foreign judgment (which is not permitted in recognition proceedings) and raising an allegation of fraud can be a blurred one.

Trans-Tasman jurisdiction disputes – a wrong turn

(By Jack Wass, Stout Street Chambers)

Trans-Tasman jurisdiction disputes – a wrong turn

 The fundamental reform of the TTPA

The Trans-Tasman Proceedings Act 2010 fundamentally reformed the approach to civil proceedings involving New Zealand and Australia. It recognised that approaching trans-Tasman disputes in the same way as disputes involving other foreign countries did not reflect the special relationship between the two countries (Whyte v a2 Milk Co Ltd [2023] 2 NZLR 486 at [31]). The solution was to cast aside most of the usual rules that govern jurisdiction and enforcement of judgments and replace them with a new set of rules that, in many respects, treated New Zealand and Australia as more like a loose confederation than foreign countries (Davis (2010) 16 Cant LR 47).

The result is that the usual rules that apply where a New Zealand plaintiff wishes to serve proceedings on a foreign defendant do not apply where the defendant is in Australia. An Australian defendant is subject to the jurisdiction of the New Zealand court as of right; they may apply to stay the proceedings on the basis that Australia (or some other country) is the more appropriate forum, but they are not entitled to object to the jurisdiction in reliance on the fact they were served outside New Zealand.

This was not the conclusion reached in the recent decision of Commerce Commission v Go Car Finance Ltd [2025] NZHC 4072, where the High Court found that a defendant served in Australia could protest the jurisdiction under the High Court Rules. This post explains why, in the author’s view, that decision was wrong.

 

The concept of jurisdiction

The starting point is that territorial personal jurisdiction is based on service of the originating document. New Zealand law draws a fundamental distinction based on where the proceedings are served. If the proceedings are served on the defendant within New Zealand, then the defendant is subject to the jurisdiction of the Court as of right; they cannot protest the jurisdiction under rule 5.49, but they can apply to stay or strike out the proceedings under rule 15.1 on the basis that New Zealand is not the appropriate forum (rule 6.29(3)) (https://blogs.otago.ac.nz/conflicts/protests-to-jurisdiction-by-new-zealand-defendants/).

Where a defendant has been served outside New Zealand, the High Court does not have jurisdiction as of right but only where the plaintiff can establish the criteria in rule 6.27-6.29: essentially that there is a sufficient connection to New Zealand (either because there is a good arguable case that one of the gateways in rule 6.27 applies or there is a real and substantial connection in terms of rule 6.28(5)(a)), that there is a serious issue to be tried, that New Zealand is the appropriate forum, and any other relevant circumstances support the assumption of jurisdiction. A defendant in such circumstances is entitled to file a protest to jurisdiction under rule 5.49 instead of filing a statement of defence.

The TTPA was intended to cast aside the rules that govern cases of extraterritorial service and treat service in Australia as if it were service in New Zealand. Section 13 specifies that an initiating document may be served in Australia in the same way as a document served in New Zealand and it is not necessary for the New Zealand court to (a) give leave or (b) be satisfied that there is a connection with New Zealand. Section 14 then provides that service in Australia “has the same effect…as if the initiating document had been served in New Zealand”.

The consequence is that where proceedings have been served in Australia, the defendant cannot object to the jurisdiction on territorial grounds, just as a defendant served in New Zealand cannot do so (see generally Hook & Wass at [2.96]-[2.99] and [2.382]).

Rule 5.49 and the framework for service out of the jurisdiction under rules 6.27-6.29 do not apply, because those rules are concerned with service out of the jurisdiction, and s 14 of the TTPA provides that service in Australia is to be treated as service in the jurisdiction. The fact that service in Australia is not treated as service outside New Zealand is made explicit by rule 5.49(7A) of the High Court Rules, which makes rule 5.49 subject to the TTPA, and rule 6.36, which was added when the TTPA was enacted and provides that “This subpart (which contains rules on service out of New Zealand) does not apply to service in Australia of an initiating document…which may be served in Australia” under the TTPA.

 

A defendant served in Australia cannot protest the jurisdiction

In Go Car, the defendant was served in Australia and argued that the attribution rules in the Commerce Act 1986 (incorporated by reference into the Contract and Commercial Law Act 2017) did not apply to bring it within the extraterritorial reach of the latter legislation. It filed an appearance under protest to jurisdiction under rule 5.49 and argued that there was no serious issue to be tried as required by rule 6.28(5)(b).

The Associate Judge found that the defendant was entitled to protest the jurisdiction because the TTPA rules only applied to arguments about whether New Zealand or Australia was the appropriate forum, leaving a defendant served in Australia free to raise other jurisdictional arguments, including whether the requirements of rule 6.28(5) were met.

For the reasons given above, this conclusion reflects a misunderstanding of the jurisdictional framework. The whole set of provisions under rule 5.49 and 6.27-6.29 apply to cases where a defendant has been served in a country other than New Zealand or Australia, and rule 6.36 (which is not discussed in the judgment) disapplies them where the defendant has been served in Australia.

The error in the Court’s approach is apparent when the Court turned to consider whether the requirements of rule 6.27 and 6.28 were satisfied, and was required to ask which of the gateways in rule 6.27 applied. But rule 6.36 explicitly disapplies all of those rules. This is because, as s 13(3)(b) makes explicit, a plaintiff may serve proceedings in Australia without establishing any connection between the proceeding and New Zealand. Indeed, the defendant in Go Car submitted that recourse to rule 6.27 was not required because of the TTPA.

The High Court Rules and the TTPA provide for a defendant served in Australia to apply for the proceedings to be stayed on the grounds that Australia is the more appropriate forum (and s 21 contemplates that this involves an application by the defendant, not a protest to jurisdiction). A defendant may also apply to stay proceedings on the basis that a third country is more appropriate or on other recognised grounds unconnected with territorial jurisdiction, such as abuse of process. These situations are saved by s 27(2) (which provides that the TTPA “does not affect any power of the New Zealand court to stay the proceeding on any other grounds”) as was noted by (respectively) Associate Judge Bell in Haines v Herd [2015] NZHC 3265 and the High Court of Australia in Zurich Insurance Co Ltd v Koper [2023] HCA 25, (2023) 277 CLR 164 at [50]. What s 27(2) does not do is treat a defendant served in Australia in the same way as a defendant served outside the jurisdiction, or give them a right to protest jurisdiction on territorial grounds.

The High Court accepted that where the defendant was arguing New Zealand was not the appropriate forum, the argument needed to be considered under the TTPA. But this is the only ground on which an Australian defendant can contest the New Zealand court’s jurisdiction. The Judge was influenced by the phrasing of rules 5.49(7A) which provides that an application to stay proceedings “on forum grounds connected with Australia” must be dealt with in accordance with the TTPA and inferred from this that jurisdictional arguments other than on forum (non conveniens) grounds could still be pursued. But “forum grounds” in this context is synonymous with “on the grounds of territorial jurisdiction”. The verbal formulation in rule 5.49(7A) reflects that arguments about appropriate forum are the only basis on which a defendant served in Australia can ask the New Zealand court to decline jurisdiction.

 

Conclusion

It has become common for Australian defendants seeking a stay of proceedings on the basis that an Australian court is the more appropriate forum to file a protest to jurisdiction under rule 5.49. For the reasons given above, a defendant in such circumstances should instead file an interlocutory application for a stay, for which a form is prescribed in the Trans-Tasman Proceedings Regulations and Rules 2013. But the practice of filing a protest does little harm when it is just a means of getting the question of appropriate forum resolved.

What an Australian defendant cannot do is file a protest to jurisdiction as a means of raising other jurisdictional objections. In Go Car, the argument was that there was no serious issue to be tried because the legislation did not have extraterritorial effect. The purpose of the serious issue to be tried requirement is to ensure that foreign defendants are not hauled before the courts to defend speculative claims. In true cases of service outside the jurisdiction, a defendant can object to jurisdiction solely on the ground there is no seriously arguable case on the merits (Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 (PC)). But an Australian defendant does not have that right (see, for example, Drink Tank Ltd v Morrows Pty Ltd [2020] NZHC 1391, [2020] 3 NZLR 443); if they consider that the case discloses no arguable cause of action, then they can apply to strike out the proceedings under rule 15.1. In most service-out cases, a defendant is well-advised to protest the jurisdiction (on the basis of the absence of a serious issue to be tried) instead of applying to strike out, because the former does not involve a submission to the jurisdiction and can preserve the defendant’s right to withdraw from the proceedings and resist enforcement of the judgment overseas. But even if a protest were available to an Australian defendant, that strategic benefit would not be available because New Zealand judgments are enforceable in Australia regardless of whether the defendant submitted to the jurisdiction of the New Zealand court.

Overseas (non-)parties and contempt

(By Maria Hook)

 Please click here for a pdf version of this post. 

I              Introduction

[1] Can a party who is located overseas be in contempt of the New Zealand court? The purpose of this piece is to sketch out an answer to this question. I use the term “overseas” to refer to parties who do not have a presence in New Zealand (in other words, they are exclusively located overseas).

[2] In the recent case of Sunnya Pty Ltd v Mega Aqua Ltd [2025] NZHC 3482, discussed here by Jack Wass, the application to enforce an Australian subpoena arose in the context of New South Wales contempt proceedings against a New Zealand-resident, Mr Wu. The contempt proceedings had been served out of the jurisdiction (In the matter of Sunnya Pty Ltd [2024] NSWSC 415), in circumstances where Mr Wu was not a party to the substantive proceeding but had allegedly provided false information for use in the proceeding. The contempt proceedings could not be served out of Australia under the Trans-Tasman Proceedings Act 2010 (Cth), which excluded “criminal proceedings”. However, they could be served outside of Australia as an originating process under r 11.5 of the UCPR.

[3] These or similar circumstances could well arise in New Zealand, which may require the court to consider questions of personal jurisdiction, subject-matter jurisdiction and enforcement jurisdiction.

[4] Much of the focus of my analysis is on non-parties. I use the term “non-party” to refer to persons against whom a plaintiff could not assert a cause of action before the New Zealand court.

 

II            Enforcement jurisdiction

[5] Enforcement of New Zealand court orders is strictly territorial, in the sense that imprisonment is only available for persons physically located in New Zealand, and sequestration is only available in relation to property located in New Zealand. This means that, even if the court has personal jurisdiction and subject-matter jurisdiction to hold a person in contempt, the order may not be practically enforceable in New Zealand where the person is an overseas party without property in New Zealand. The order also probably would not be enforceable by the courts where the person is located (see Part IVA, [26]); and insofar as criminal contempt is concerned, it is unlikely to constitute an extraditable offence (see s 4, Extradition Act, 1999).

 

III           Personal jurisdiction

[6] The court can only make an order for contempt in a civil proceeding if the contemnor is subject to its personal jurisdiction (see [24]) for criminal proceedings). While the court has jurisdiction as of right over persons who are present in New Zealand, its personal jurisdiction over overseas persons depends on the existence of a rule permitting service outside of the jurisdiction. An application for contempt that is brought against an overseas person must be served outside of New Zealand in accordance with such a rule. However, service out is not necessary where the court already enjoys personal jurisdiction over the person and the order for contempt would be incidental to that jurisdiction: Vik v Deutsche Bank AG [2018] EWCA Civ 2011, [2019] 1 WLR 1737 at [55], in relation to the director of company who had breached an order to attend court that had been served on him while he was present in the jurisdiction).

[7] In In the matter of Sunnya Pty Ltd [2024] NSWSC 415, the Court granted leave for service out of Australia under r 11.5 of the UCPR, which applies where the claim has a “real and substantial connection with Australia”. Although the proceedings involved criminal contempt, the Court was satisfied that the contempt motion amounted to an “originating process” for the purposes of r 11.5, as defined in s 3 of the Civil Procedure Act 2005 (NSW). However, the contempt proceedings could not be served outside of Australia under the Trans-Tasman Proceedings Act 2010 (Cth) because, in substance, they fell within the definition of criminal proceedings as excluded by the Act, that is, “a procedure other than a prosecution that, under an Australian law, may be used to determine liability for an offence” (at [6]). A different conclusion may be available for proceedings involving civil, rather than criminal, contempt (but see Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556). If so, New Zealand proceedings for civil contempt could be served on an Australian (non-)party under the Trans-Tasman Proceedings Act (at least if, under Australian law too, the contempt would be civil in nature).

[8] More generally, rr 6.27 and 6.28 of the High Court Rules apply to the service outside of New Zealand of “originating documents”. An “originating document” is a document “that initiates a civil proceeding”. Applications under s 16(2) of the Contempt of Court Act 2019, which provides for the enforcement of courts orders, must be made by way of originating application under Part 19 (r 19.2), as does “an originating proceeding for contempt of court” more generally (r 19.3).

[9] Section 16 would not be available where a non-party interfered with an order made against another party (by, for example, assisting with the defendant’s breach, or subverting an order by destroying its subject-matter, or obstructing another’s compliance with the order) (but cf r 25.40). This means that such applications for contempt would have to proceed under r 19.3. It is not clear whether s 16(2) was intended to apply to orders contra mundum. The fact that the Act is intended to abolish the common law contempts of disobeying courts orders (s 3(3)(a)(v)) suggests that that it does apply.

[10] The application must satisfy one of the gateways of rr 6.27 or 6.28, which is not an onerous requirement in this context. If the proceeding relates to contempt under s 16 of the Contempt of Court Act, it might fall within r 6.27(2)(j), which provides for service of claims arising “under an enactment” if “any [relevant] act or omission” took place in New Zealand (para (i)) or “any [relevant] loss or damage” was sustained in New Zealand (para (ii)). Alternatively, and regardless of whether the application is made under the Act or not (ie under r 19.2 or r 19.3), r 6.27(2)(h) might be available where the non-party is “a necessary or proper party to proceedings properly brought against another defendant [who is subject to the court’s personal jurisdiction]” – for example, where a director has participated in the breach of an order made against the defendant company (Integral Petroleum SA v Petrogat FZE [2018] EWHC 2686, [2019] 1 WLR 574 at [89], [95]; although this decision may be controversial to the extent that the defendant company was not a party to the contempt application: D Foxton “The Jurisdictional Gateways — Some (Very) Modest Proposals” [2022] LMCLQ 71 at 90).

[11] If r 6.27 does not apply, the court may still grant leave for service outside of New Zealand under r 6.28 if the claim has “a real and substantial connection with New Zealand” (the equivalent of r 11.5(5) of the UCPR). In Sunnya, the NSW Court considered that the claim “plainly has a real and substantial connection with Australia, where it alleges a contempt committed which would have had a real effect upon the conduct of Australian proceedings” (at [11]). By way of comparison, both Singapore and the United Kingdom have now introduced standalone gateways for contempt proceedings (CPR PD 6B, para 3.1(24) (UK); Rules of Court 2021 (Sing), PD 63(3)(t)).

[12] The court’s assumption of jurisdiction under rr 6.27 and 6.28 is discretionary and subject to New Zealand being the appropriate forum for the claim. However, in the context of contempt proceedings, there would not usually be another available forum to determine the action. A foreign court would not have jurisdiction to determine a proceeding for contempt of the New Zealand court. In Sunnya, the NSW Court considered that “Australia is an appropriate forum for the trial, where the contempt is a contempt of this Court, and this Court is plainly the appropriate forum to determine whether that contempt was committed” (at [11]).

[13] In these circumstances, the case for service outside of the jurisdiction may appear to be clear-cut. Thus, the NSW Court concluded that it “should assume jurisdiction, since only this Court could properly determine whether such a contempt was committed against it” (at [11]). However, there are at least two reasons why New Zealand courts ought to tread cautiously.

[14] First, contempt applications that are formally classified as a civil proceeding for the purposes of the High Court Rules may, in substance, be concerned with criminal or quasi-criminal conduct that is sanctioned as such (see Young v Zhang [2017] NZCA 622, [2018] NZAR 207 at [42]). New Zealand law does not usually allow for service of criminal process to be effected overseas (M-I New Zealand Ltd v Auckland District Court [2007] NZAR 222 at [24]), unless it is based on an international agreement to that effect (see s 51, Mutual Assistance in Criminal Matters Act 1992). In a case involving service by the Solicitor-General (s 16(2)(c)), service may be considered contrary to principles of public international law (Marcus Teo Wei Ren “Service out for scandalising contempt: an international constitutional jurisdiction?” [2019] Singapore Journal of Legal Studies 477 at 482).

[15] Second, depending on the facts of the case and the nature of the alleged contempt, the court may lack subject-matter jurisdiction to make the order.

 

IV          Subject-matter jurisdiction

[16] I use the term subject-matter jurisdiction to describe – in addition to any personal jurisdiction that is needed – the court’s adjudicative authority over a matter that is not entirely domestic (see CLNZ at ch 2E). Where the court’s adjudicative authority goes hand in hand with the application of the lex fori, because the issue is one that is exclusively governed by the lex fori, the terms subject-matter jurisdiction and prescriptive jurisdiction overlap.

[17] Basically, the question is whether, assuming there is a basis for service out of New Zealand, the court has jurisdiction to hold the overseas (non-)party in contempt. This question is surprisingly complex, for three reasons.

[18] The first is the quasi-criminal, or public, nature of contempt proceedings, which involve the court asserting a higher degree of sovereign authority than an ordinary civil dispute. The goal of contempt is not to determine the private rights and obligations of the parties (or non-parties); it is to protect the proper administration of justice (see David Rolph Contempt (Federation Press, 2023) at 7). This matters because there may be principles of international law that constrain the assertion of this quasi-criminal, public jurisdiction (see generally Campbell McLachlan “On the interface between public and private international law” (2025) 446 Recueil des Cours 9 at ch X, who makes the point (at 204) that “in determining the extent of jurisdiction, regard must also always be had to the legitimate claims to jurisdiction of the other State”). The question is whether there is a “sufficient connection” (Masri v Consolidated Contractors International Company SAL [2008] EWCA Civ 303, [2009] QB 450 at [31]), taking account of competing claims to jurisdiction over the relevant person or conduct. In the criminal context, New Zealand law has traditionally relied on the territoriality principle to guide its prescriptive jurisdiction (Crimes Act 1961, s 7), but the contours of this principle depend on the nature of the issue and are best evaluated by reference to relevant state practice (see Alberto Costi (ed) Public International Law: A New Zealand Perspective (LexisNexis, 2020) at 386, noting that “[a] challenging issue to the traditional application of the territoriality principle relates to what has been termed ‘de-territorialized’ crime, such as in cyberspace”).

[19] The second, and related, reason arises in the context of applications against non-parties, due to the complex nature of non-party jurisdiction (for a US perspective, see Aaron D Simowitz and Linda J Silberman “Nonparty Jurisdiction” (2022) 55 Vanderbilt Journal of Transnational Law 433; Hannah Buxbaum “Civil Contempt Orders Against Non-Parties in Parallel Proceedings” (20 November 2025) TLB <https://tlblog.org/civil-contempt-orders-against-non-parties-in-parallel-proceedings/>.

[20] Where allegations of contempt are made against a party, the court’s subject-matter jurisdiction over the contempt can be justified by reference to the subject-matter jurisdiction over the dispute itself, at least where the contempt relates to the breach of an order (“[i]f you join the game you must play according to the local rules”: MacKinnon v Donaldson Lufkin & Jenrette Securities Corp [1986] Ch 482 at 494; Mansour v Mansour[1989] 1 FLR 418). In Attorney-General for England and Wales v Tomlinson [1999] 3 NZLR 722, the Court concluded that the defendant could be in contempt for breaching a non-publication injunction in relation to actions taken after he had left New Zealand, even if his actions did not result in publication within New Zealand.

[21] However, where the contempt is that of a non-party, the court’s authority is not ancillary to an existing subject-matter jurisdiction grounded in civil rights and obligations vis-à-vis the non-party. Again, the nature of non-party jurisdiction tends to be more public or regulatory, which may change the way that public international law views the assertion of this kind of jurisdiction (cf the original hesitation regarding service on overseas non-parties, ie “[a]bsent a claim based on a legal right which the defendant can be called upon to answer: Mercedes-Benz AG v Leiduck [1996] AC 284 (PC) at 301-302). For example, Campbell McLachlan, in a 1998 article, once described this kind of subject-matter jurisdiction as “a pure enforcement jurisdiction (as distinguished from the original jurisdiction which [the court] may exercise in relation to the parties to the dispute)”, in the context of an analysis of third-party disclosure orders (“The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation” (1998) 47 ICLQ 3 at 26).

[22] The third reason why this question is so complex is that there are three distinct issues of subject-matter jurisdiction that may arise, which I will analyse in turn below:

[23] The special position of directors, officers or agents of a body corporate is discussed in Part V.

 

A            Contempt jurisdiction even though (non-)party is overseas at the time of the proceeding

[24] Is it possible for the court to have jurisdiction in contempt proceedings even though the (non-)party is overseas at the time of the proceeding? If the proceeding is criminal nature (see, eg, s 22 of the Contempt of Court Act 2019, which makes it an offence to publish a false statement about a court or a judge), the court might be unable to proceed in the absence of the defendant (s 118, Criminal Procedure Act 2011). In criminal proceedings, extradition is the main mechanism to deal with defendants who are overseas. If the proceeding is not criminal, and there is a basis for serving the (non-)party outside of New Zealand (that is, the court may assume personal jurisdiction), the person’s absence from New Zealand is not, in itself, a jurisdictional barrier. It is not unheard of for common law courts to hear contempt proceedings against non-parties located outside of the jurisdiction (see, eg, Dar Al Arkan Real Estate Development Co v Refai [2014] EWCA Civ 715, [2015] WLR 135; Vik v Deutsche Bank AG [2018] EWCA Civ 2011, [2019] 1 WLR 1737).

[25] If the contempt order would be practically unenforceable in New Zealand because the (non-)party is overseas (and has no property in the jurisdiction), this may be a factor weighing against the exercise of jurisdiction, but it need not be determinative: see Dar Al Arkan Real Estate Development Co v Refai [2014] EWCA Civ 715, [2015] WLR 135 at [50], [15(v)]). The risk of being found in contempt may have a deterrent effect even if the order would be practically unenforceable. By the same token, an order may induce compliance even if it is not practically enforceable – for example, because the contemnor faces the possibility of imprisonment if they decide to travel to New Zealand.

[26] If the order is practically unenforceable in New Zealand, it is unlikely to be enforceable at all. That is because courts do not usually assist with the enforcement of foreign public claims (see, from a New Zealand perspective, CLNZ at [5.172]; see, more generally, Campbell McLachlan Foreign Relations Law (CUP, 2014) at ch 11). By enforcing a New Zealand contempt order, the foreign state would make an exception to its otherwise exclusive jurisdiction to enforce its own prescriptive jurisdiction over sovereign matters within its territory, which is why such acts of cooperation tend to be the result of international agreement (but cf penalty payments against parties: De Fontbrune v Wofsy 838 F 3d 992 (9th Cir 2016); HccH “Treatment of penalty orders that are imposed on the non-compliance with non-monetary judgments under the 2018 draft Convention” (Prel Doc No 3 of February 2019 for the attention of the Twenty-Second Session on the Recognition and Enforcement of Foreign Judgments (18 June – 2 July 2019)). However, the fact that the order would not be enforceable overseas due to its sovereign character does not mean that the court hearing the contempt proceedings exceeded its jurisdiction under international law (but see Marcus Teo Wei Ren “Service Out for Scandalising Contempt: An International Constitutional Jurisdiction? [2019] Singapore Journal of Legal Studies 477 at 481-482).

[27] The Trans-Tasman Proceedings regime includes provisions for the mutual enforcement of certain civil penalties and criminal fines (see Part 2, Subparts 7 and 8; see art 5(7) of the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement (signed 24 July 2008, entered into force 11 October 2013, which provides that recognition and enforcement of registrable judgments shall not be refused on the basis that this would involve “the direct or indirect enforcement of a foreign public or revenue law”). However, fines for contempt do not clearly fall within either Subpart. It would not be a “civil pecuniary penalty”, that is, “a pecuniary penalty imposed in a civil proceeding in relation to a contravention of legislation” (s 4(1)); and it would not meet the definition of a “regulatory regime criminal fine” (s 4(1)). In the context of remote appearances from New Zealand in Australian proceedings, the Australian court may not exercise its power to punish for contempt (s 45), but the New Zealand court may enforce certain orders made by the Australian court under s 46, including by way of contempt (s 47; see also s 87). Section 50 provides for contempt offences committed by a person in New Zealand appearing remotely before an Australian court.

 

B            Breach of an order  

[28] A (non-)party can only be held in contempt for breaching an order if the court had jurisdiction to bind the party in the first place. If the (non-)party breaches an order that has been made against them, and there was jurisdiction to make the order, there is no reason in principle why the court should lack jurisdiction in contempt.

[29] What are the circumstances in which the court may make an order against an overseas non-party (the breach of which may then amount to contempt)? The court must have had personal jurisdiction and subject-matter jurisdiction to make the order against the non-party. Importantly, the overseas presence of the non-party is not only relevant to personal jurisdiction, and the discussion below will focus on the question of subject-matter jurisdiction.

[30] The existence of subject-matter jurisdiction over non-parties depends on the meaning, nature and purpose of the rule forming the basis for the order (see [20] above for the different justification that applies to jurisdiction vis-à-vis parties).

(a)          Disclosure

[31] In MacKinnon v Donaldson Lufkin & Jenrette Securities Corp [1986] Ch 482, Hoffmann J held that a bank with a presence in England could not be ordered to produce documents held at its New York head office, because the court would only exercise its “subject-matter jurisdiction” to make such an order in exceptional cases (at 493): “It does not follow from the fact that a person is within the jurisdiction and liable to be served with process that there is no territorial limit to the matters upon which the court may properly apply its own rules or the things which it can order such a person to do.” The case was not concerned with an overseas non-party because the bank had a presence in England. However, where the extraterritorial acts are those of an overseas non-party, Hoffmann J’s concerns about subject-matter jurisdiction have even greater weight. In such cases, there is no “enforcement jurisdiction” based on the party’s territorial connection to the forum (in the sense used by McLachlan “The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation” at 26, describing the court’s power to make orders that are concerned with enforcement, rather than actual enforcement of the order itself, which, if it took place on the foreign territory where the non-party is located, would necessarily be contrary to international law).

[32] Thus, Hoffmann J referred to the issue of a subpoena as “an exercise of sovereign authority to require citizens and foreigners within the jurisdiction to assist in the administration of justice” (at 494, emphasis added); and suggested that there were “only two ways in which” evidence could be obtained from a non-party without a presence in the jurisdiction: by sending a letter of request to the foreign court (pursuant to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231 (opened for signature 18 March 1970, entered into force 7 October 1972 (Hague Evidence Convention)) or by applying to the foreign court directly (at 490-491).

[33] The court will also usually refrain from making a Norwich Pharmacal order against an overseas party, even though formally the party is joined as a defendant to the proceeding: AB Bank Limited, Off-shore Banking Unit v Abu Dhabi Commercial Bank PJSC [2016] EWHC 2082, [2017] 1 WLR 810; Lawrence Collins and Jonathan Harris (eds) Dicey, Morris and Collins on the Conflict of Laws (16th ed, Sweet & Maxwell, London, 2022) at [10-085].

[34] There are several cases in which the English High Court granted Bankers Trust Orders against parties without a presence in the jurisdiction in cases involving cryptocurrency fraud: Ion Science Ltd v Persons Unknown [2020] EWHC 3688 at [21];ai Limited v Persons Unknown Category A [2021] EWHC 2254 at [29]-[30]; D’Aloia v Person Unknown [2022] EWHC 1723 at [35]; LMN v Bitflyer Holdings Inc [2022] EWHC 2954 at [36]-[37]; see also Tonstate Group Ltd v Wojakovski [2024] EWHC 975  (involving fraud, but not cryptocurrency fraud). The judgments place reliance on Hoffmann J’s dictum that a subpoena requiring the production of documents outside of the jurisdiction by a foreigner is available “in exceptional circumstances” (such as the “hot pursuit” of missing funds) (MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation at 493, 498-499).

[35] However, Hoffmann J was here talking about foreigners with a presence in the jurisdiction (such as a bank with a branch in London). The High Court’s reasoning seems to “[confuse] personal jurisdiction, ie, who can be brought before the court” under its long-arm jurisdiction, “with subject matter jurisdiction, ie, to what extent the court can claim to regulate the conduct of those persons” who have no presence within the jurisdiction (adapting Hoffmann’s language at 493).

[36] It is notable in this context that the UK gateways for service out of the jurisdiction have been amended to include third party information orders (see PD 6B, para 3.1(25)). While the gateways themselves cannot confer subject-matter jurisdiction to make such orders, this expansion may reflect a greater willingness to infer and exercise the jurisdiction. The Rules Committee was concerned with “the Court’s territorial jurisdiction to grant orders against non-parties for the provision of information where assets have been removed from the jurisdiction” and noted that this issue was “particularly acute in cases where a party has needed to identify the destination of money or cryptoassets and so has required information from a bank or exchange” (Civil Procedure Service Sub-Committee “Proposed amendments to PD6B”).

[37] The Law Commission of England Wales has proposed a new power to issue information orders to assist victims of crypto fraud, which could be served on intermediaries located in another country (Digital assets and (electronic) trade documents in private international law: Consultation Paper (5 June 2025) at [8.1]-[8.3]). The Law Commission has framed this proposed power “as an exception to [the] requirement for an ‘adequate link’ as is generally understood in the context of international civil and commercial litigation” (at [4.50]). In a helpful blog post, Koji Takahashi highlights the “radical nature” of the proposal and explains that “the primary goal of the proposal is to prevent technology from creating a space where justice cannot reach and criminals can operate with impunity” (Koji Takahashi “The Law Commission’s Proposed Free-Standing Information Order” (5 November 2025) EAPIL.

[38] Finally, there is authority for the proposition that the non-party’s presence may not be necessary where the order is concerned with documents located within the jurisdiction. In Gorbachev v Guriev [2022] EWCA Civ 1270, [2023] 2 WLR 1, the Court decided that it had jurisdiction to make a non-party disclosure order against a non-resident third party under s 34 of the Senior Courts Act 1981 in relation to documents that were held electronically by the non-party’s solicitors in the United Kingdom (and there was an argument that the order should not be made directly against the solicitors). The Court acknowledged that “wide-ranging disclosure of documents held by third parties abroad” would “infringe international comity in ways that would be objectionable to foreign states”; and that such orders “could not readily be enforced unless the persons against whom they were made chose to come within the jurisdiction” (at [82]). However, the Court considered that where the documents are located within the jurisdiction, “the principle of territoriality has little or no application” (at [84]). In such cases, there is no “illegitimate interference with the sovereignty of the state where the owners of the documents … are located” (at [84]), and there will be “no difficulty in enforcing any order for their production” (at [86]).

[39] The Court left open the question whether the court would have jurisdiction, in exceptional circumstances, to make such an order where the documents are located elsewhere (at [89]-[90]; but cf Hoffmann J in MacKinnon v Donaldson Lufkin & Jenrette Securities Corp at 490-491).

 

(b)          Evidence

[40] I have already referred to Hoffmann J’s dictum in MacKinnon v Donaldson Lufkin & Jenrette Securities Corp that there are only two ways in which evidence could be obtained from a non-party without a presence in the jurisdiction: by sending a letter of request or by applying to the foreign court directly. Hoffman J noted that the UK Government itself had objected to foreign subpoenas being issued against non-parties in England (at 493-494; but cf the Australian Federal Court’s conclusion that it was appropriate to serve a subpoena on a company in the United Kingdom because “the receipt of subpoenas in the United Kingdom from foreign jurisdictions is not, prima facie, regarded as an interference in that country’s sovereign affairs”: Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda (No 5) [2025] FCA 1261 at [53]).

[41] In Masri v Consolidated Contractors International Company SAL [2009] UKHL 43, [2010] AC 90, the House of Lords concluded that the rule-making power under the Civil Procedure Act 1997 extended to “extra-territorial” rules of court, rejecting the submission “that the rule-making power in respect of persons outside the jurisdiction must exclude ‘purely procedural powers against non-parties’” (at [14]). However, the House of Lords also concluded that, properly interpreted, the rule in question did not confer powers of examination over a foreign director who was not otherwise before the English court.

[42] Unpacking “the presumption against extra-territoriality” (at [16]), the Court referred to considerations such as “the existence of a close connection between a subject matter over which this country and its courts have jurisdiction” and the third party (at [19]), “impracticality of enforcement” (at [22]) and principles of comity and international law or practice (at [19], [24], referring to In re Tucker (RC) (A Bankrupt), Ex p Tucker[1990] Ch 148, where the Court stated at 158 that “the general practice in international law is that the courts of a country only have power to summon before them persons who accept service or are present within the territory of that country when served with the appropriate process”). Section 36 of the Supreme Court Act excluded the possibility of “requiring an ordinary witness outside the jurisdiction to attend for examination within the jurisdiction” (at [14]). In “[p]rivate civil litigation”, parties had “no right to ask the court to summon witnesses from abroad” to ensure access to full information (at [23]). The power to order examination of a foreign director in CPR 71.2 did not raise sufficiently different considerations to displace the presumption of territoriality (at [26]).

[43] The Court distinguished In re Seagull Manufacturing Co Ltd [1993] Ch 345, where the Court of Appeal had concluded that s 133 of the Insolvency Act 1986 conferred powers of examination over a former director located outside of the jurisdiction, by reference to two factors (at [23]): the ability to subject former directors of insolvent companies to examination was in the public interest, and a winding up order was universal in nature, “in the sense that it relates at least in theory to all assets wherever situate”.

 

(c)          Freezing orders

[44] In certain circumstances, courts may grant freezing orders against non-parties who are in control of the defendant’s assets or who may have an obligation to use their assets to satisfy the defendant’s judgment debt: r 32.4, HCR. According to the High Court of Australia, the purpose of such orders is to protect the administration of justice: Cardile v Led Builders Pty Ltd (1999) 198 CLR 380 at [25].

[45] It seems to be well-accepted that such an order can be made in relation to property within the jurisdiction even if the non-party is located outside of the jurisdiction (assuming there is a basis for personal jurisdiction): Parbulk II AS v PT Humpuss Intermoda Transportasi TBK [2011] EWHC 3143. In other words, the fact that the non-party is overseas does not present an obstacle for subject-matter jurisdiction in such cases.

[46] There are cases that suggest that such an order could also be made in relation to property outside of the jurisdiction, but these cases do not squarely address the question of subject-matter jurisdiction (as distinct from personal jurisdiction): see, eg, Commercial Bank of Dubai PSC v Al Sari [2024] EWHC 3304 at [269], [243]-[244] (obiter); C Inc v L [2001] 2 Lloyd’s Rep 459 (where the Court made an order against a non-party in Guernsey over his assets within and outside of the jurisdiction); see also Yukos Capital Sarl v OJSC Rosnef Oil Co[2010] EWHC 784. However, in Parbulk II AS v PT Humpuss Intermoda Transportasi TBK [2011] EWHC 3143, where the non-party had submitted to the Court’s jurisdiction, the Court confined the order to assets within the jurisdiction because of “subject matter jurisdictional” considerations: at [87]-[88].

[47] Similarly, where a freezing order is granted in aid of foreign proceedings (in other words, the respondent is not a defendant to a cause of action in the forum), but the respondent is not located in the forum, relief will usually be limited to property within the forum: CLNZ at [3.183]; see Mex Group Worldwide Ltd v Ford [2024] EWCA Civ 959, [2025] 1 WLR 975 for a summary of the relevant English principles. In this context, there may be no competing “legitimate claims to jurisdiction” of other states because the respondent is a substantive defendant (albeit in another jurisdiction) and the freezing order is an act of cross-border cooperation.

[48] The special position of directors, officers or agents of a body corporate is discussed below in Part V.

 

(d)          Order setting aside transactions

[49] There are provisions for setting aside transactions under the Property Law Act 2007 (pt 6, sub-pt 6), Insolvency Act 2006 (pt 3, sub-pt 7) and Companies Act 1993 (ss 287-300). Provisions of this kind have generally been interpreted broadly: Springfield Acres Ltd (in liq) v Abacus (Hong Kong) Ltd [1994] 3 NZLR 502 (HC) at 508, following Re Paramount Airways Ltd (in admin) [1993] Ch 223 (CA). They are not limited to defendants within the jurisdiction, “so will apply to payments made by a New Zealand debtor to an overseas defendant, although the international aspects of the case will be relevant to the court’s exercise of its discretion” (CLNZ at 10.110); and there has to be a sufficient connection between the jurisdiction and the defendant (see AWH Fund Ltd (In Compulsory Liquidation) v ZCM Asset Holding Company (Bermuda) Ltd [2019] UKPC 37 at [40]-[41] and [55]). This broad jurisdiction can at least in part be explained by the principle of universality that is of particular relevance in the insolvency jurisdiction: see Masri v Consolidated Contractors International Company SAL [2009] UKHL 43, [2010] AC 90 at [23]; cf R (KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2, [2021] 2 WLR 335 at [60]-[63].

 

(e)          Non-disclosure/take-down orders

[50] Can the court make an order to stop an overseas non-party from publishing information, or to require it to take down information online? This is a question that has become especially important in the digital era. The answer depends on the source of the power to make the injunction, but generally speaking, the non-party’s absence from the jurisdiction makes subject-matter jurisdiction more difficult (but cf Michael Douglas “Extraterritorial injunctions affecting the internet” (2018) 12 Journal of Equity 34, who is critical of the term “subject-matter jurisdiction” in relation to such injunctions).

[51] In the context of a private law claim like defamation, publication (and harm) in New Zealand would usually lead to the claim being governed by New Zealand law. In the different context of an order being made against a non-party, publication in New Zealand might be insufficient to establish subject-matter jurisdiction, especially if the order also affects publication overseas (but see A&B v C [2007] HCFI 815, where the Hong Kong Court made an order against an overseas non-party who had published information online that it had obtained as a result of improper disclosure made under a Norwich Pharmacal order).

[52] It may be appropriate to draw parallels with private law claims like defamation if the order is designed to protect another party’s rights and obligations, and failure by the non-party to act consistently with the order would be akin to private law wrongdoing, even though no cause of action is made out against them.

[53] Thus, in Google Inc v Equustek Solutions Inc 2017 SCC 34, [2017] 1 SCR 824, the Canadian Supreme Court decided that Google could be ordered to de-index a defendant’s websites that were in breach of the plaintiff’s intellectual property, and to do so globally (because otherwise the injunction would not be effective). Google had been found to be subject to the personal jurisdiction of the British Columbia courts because it carried on business in the province (at [38]). If Google had not been present within the jurisdiction, an injunction may not have been available; although the relatively lax approach to the meaning of “presence” suggests a willingness to take a generous approach to jurisdiction. The substantive basis for the injunction was that, as a non-party, Google was “so involved in the wrongful acts of [the defendant]” that it facilitated the harm (at [31]), although it was not guilty of contempt for interfering with the court order by aiding and abetting its breach (at [68]-[71]). The Court did not consider that there were comity and freedom of expression issues that militated against the grant of the injunction (at [45]-[46]).

[54] In X v Twitter, Inc [2017] NSWSC 1300, 95 NSWLR 301, the New South Wales Supreme Court granted a worldwide injunction against Twitter to remove certain tweets. The Court assumed that Twitter had no presence in the jurisdiction. However, the application for an injunction was accompanied by a substantive claim, which was that Twitter was subject to an equitable obligation of confidence (at [17]). It was not, therefore, a non-party as conceptualised here.

[55] The more “public” the nature of the order, the more it may be thought to interfere with another country’s jurisdiction to regulate speech, unless there is (developing) international practice to support the existence of prescriptive jurisdiction. In Google Inc v Commission nationale de l’informatique et des libertés (CNIL) Case C-507/17 (2019), the European Court of Justice concluded that the right to be forgotten under European law applied only in Europe, enabling Google to use geo-blocking so that delisted links could still feature in searches outside of Europe. Google had argued that CNIL’s interpretation “disregarded the principles of courtesy and non-interference recognised by public international law” (at [38]). But another view is that the right to be forgotten has foundations in international law, which would mean that CNIL’s interpretation could be consistent with international principles of prescriptive jurisdiction (see Oskar J Gstrein “The judgment that will be forgotten” (25 September 2019) Verfassungsblog <https://verfassungsblog.de/the-judgment-that-will-be-forgotten/>.

 

(f)           Non-disclosure/take-down orders contra mundum

[56] In Re Olsen [2022] NZHC 1781, the High Court issued a take-down order for a website impersonating a New Zealand barrister. The website was hosted overseas but there was no discussion of the court’s jurisdiction over overseas non-parties, and the order was not made against the company directly. If the court makes a non-publication or suppression order against the world, can this include persons overseas for the purposes of contempt?

[57] One problem in cases such as this is that the court will not have established personal jurisdiction over the (non-)party prior to any proceeding in contempt, because they will not have been a named party to the order. As a matter of principle, it seems that it should not be possible to treat an overseas person as being bound by an order where the court did not have personal jurisdiction over them in relation to the order (although cf Part V below). The court has no power to make an order against overseas persons (Waterhouse v Reid [1938] 1 KB 743 at 747 per Greer LJ). There has to be a statutory mechanism that gives it this power, such as rr 6.27 and 6.28.

[58] In terms of subject-matter jurisdiction, it may not be sufficient that publication occurred in New Zealand (as discussed in part (e) above), especially if publication in New Zealand was part and parcel of worldwide publication. Competing claims to jurisdiction, by countries with an interest in freedom of expression, loom large here.

[59] In Re Olsen, the rationale for the order was the “obvious risk to the public arising from the impersonation of an officer of this Court” (at [19]). Perhaps jurisdiction can be explained on the basis that the non-party was implicated in another’s wrongdoing (cf Equustek), and that there was no competing claim to regulate a scam focused on New Zealand (although there may have been a more general competing claim to regulate the duties of the webhosting company).

[60] To the extent that the breach of the order would be a criminal offence (see, eg, s 211 of the Criminal Procedure Act 2011), a criminal proceeding could not be served on the defendant outside of the jurisdiction under the High Court Rules, which does not mean, however, that the defendant did not commit the offence. There may be an argument that suppression orders that are enforceable as offences could still be enforceable under s 16 (see s 16(3)(a)) – in other words, that the offence provisions do not operate to the exclusion of s 16 – in which case there would be the possibility of service out of the jurisdiction (assuming s 16 applies to orders contra mundum); but this interpretation would introduce divergence between automatic suppression rules and suppression orders.

[61] Earlier this year, the High Court made an order to stop the media from reporting certain information in the Tom Phillips case. The order attracted widespread media commentary. One of the questions that was raised was the effect of the orders on overseas persons. Could the orders apply to, and be enforceable against, overseas media outlets or social media users who disseminate information online? Still fresh in everyone’s mind was the Telegraph’s decision to publish the name of Grace Millane’s murderer, despite an order for interim name suppression, on the basis that “New Zealand law does not apply to our reporting”.

[62] In this context, too, it is difficult to see how an order can bind an overseas person in the first place, unless the statute explicitly provides for this (see [57]).

[63] Assuming the person can be treated as being bound by the order despite their absence from the jurisdiction, there is the question of subject-matter jurisdiction – whether an overseas person’s conduct can amount to a breach of the order. Burrows and Cheer suggest that an overseas organisation that publishes a suppressed name on its website may be committing an offence against New Zealand law “because an act necessary to the completion of the offence (that is, publication) occurs in New Zealand” (John Burrows and Ursula Cheer Media Law in New Zealand (8th ed, LexisNexis, 2021) at 514; cf R v Standard 304 Ltd [2008] NZCA 564, [2010] NZAR 194, where an advertisement available to be viewed or downloaded in New Zealand was sufficient to satisfy charges under s 57 of the Medicines Act (but the defendant was in New Zealand); Nottingham v R [2019] NZCA 344, where a blog available to New Zealanders was “published” in New Zealand for the purposes of a suppression order (but, again, the defendant was in New Zealand); cf Victorian Law Reform Commission Contempt of Court (February 2020) at [13-123]-[13-136]).

[64] The purpose of territoriality as applied in the criminal context aligns with the need to keep the court’s contempt jurisdiction within appropriate bounds: in other words, to ensure New Zealand does not unduly interfere with competing claims to jurisdiction. Unless there is evidence of international practice supporting the extension of prescriptive (criminal) jurisdiction over the publication of suppressed information by overseas non-parties, international cooperation would be preferable to unilateral action. In fact, Commonwealth countries have been negotiating the possibility of mutual enforcement of suppression orders. At the Commonwealth Law Ministers Meeting in November 2022, Law Ministers accepted Expert Working Group’s recommendation that the Secretariat develop a model law on the enforcement of suppression orders (see here, [44]-[46]).

[65] There is an argument that New Zealand’s strong interest in the effectiveness of such orders gives it a claim to jurisdiction that cannot be trumped by another country’s interest in regulating speech. After all, from the perspective of New Zealand law, freedom of expression is no bar to the making of such orders domestically. But this argument is not straightforward, because different countries take different views on the appropriate boundaries of free speech.

[66] More generally, if New Zealand asserts a broad jurisdiction to regulate speech based on New Zealand being a place of publication, it would have to accept the assertion of jurisdiction by other countries on the same basis (see Michael Douglas “Extraterritorial injunctions affecting the internet” (2018) 12 Journal of Equity 34 at 56-57 for the proposition that “Western courts’ willingness to issue extraterritorial injunctions is a moral hazard”). For example, in Li Shengwu v Attorney-General [2019] 1 SLR 1081, the Singapore Court of Appeal concluded that it had jurisdiction over an overseas contemnor for scandalising the court, in relation to statements he had made on Facebook that were critical of Singapore’s judiciary (cf, in New Zealand, the Contempt of Court Act, Part 2, Subpart 5). If the contemnor had been a New Zealand resident at the time of making the statement, the proceeding might have been considered an interference with New Zealand’s jurisdictional interests in regulating the speech of its residents.

[67] The cross-border criminalisation of speech has proven contentious as a matter of international law. In Kerajaan Malaysia v Lawyers for Liberty [2025] 1 MLRA 327, Singaporean authorities had ordered a Malaysian NGO, under the Protection from Online Falsehoods and Manipulation Act 2019, to correct allegedly false statements on their website operating in Malaysia, in circumstances where the website was available to end-users in Singapore. The Malaysian court questioned whether, under international law, Singapore has prescriptive criminal jurisdiction to regulate the conduct of foreign nationals in this manner: see Dominic Bielby “Kerajaan Malaysia v Lawyers for Liberty: At the Confluence of Fake News and Extraterritoriality” (14 January 2025) EJIL Talk https://www.ejiltalk.org/kerajaan-malaysia-v-lawyers-for-liberty-at-the-confluence-of-fake-news-and-extraterritoriality/.

 

C            Interference with administration of justice

[68] Where the basis of contempt is not the breach of an order, the question is whether the court has subject-matter jurisdiction under the rule that proscribes the conduct that is said to amount to contempt. For example, a non-party may be guilty of criminal contempt if they aid and abet the breach of an order, but does this rule apply to an overseas non-party?

[69] In this context, too, courts have traditionally proceeded with caution, emphasising the importance of the non-party’s presence within the jurisdiction (which is not to say that presence is needed if there is otherwise a sufficient connection to New Zealand). In National Justice Compania Naviera SA v Prudential Assurance Co Ltd [2000] 1 All ER 37 at 45, Waller LJ suggested in obiter that “if a non-party committed a contempt of the English court the fact that that non-party was outside the jurisdiction physically would not prevent the English court having jurisdiction to proceed to commit for contempt”; but there had been no citation of relevant authority and he did not clearly distinguish between parties and non-parties (Tchenguiz v Akers Guernsey Court of Appeal 33/2015, 23 July 2015).

[70] To the extent that this type of contempt is classified as criminal in nature, it has been said that “the Court would have no jurisdiction in respect of acts done abroad, in the absence of specific statutory provision” (R+Versicherung AG v Risk Insurance and Reinsurance Solutions SA [2006] EWHC 1705 at [69] citing Arlidge, Eady and Smith on Contempt (3rd ed) at [3-40]). As discussed earlier (at [18]), the purpose of the principle of territoriality is to ensure that New Zealand does not unduly interfere with competing claims to jurisdiction.

[71] Where the contempt falls within the High Court’s jurisdiction under r 19.3, service out of the jurisdiction would in principle be available under rr 6.27 and 6.28 (see Part III).

 

(a)          Interference with court order

[72] A person who interferes with, or “aids and abets the breach of”, a court order may be liable for criminal contempt: Young v Zhang [2017] NZCA 622, [2018] NZAR 207. Such an application for contempt would be made as an originating application under r 19.3 (Taylor Bros Ltd v Taylors Textile Services (Auckland) Ltd(1988) 1 PRNZ 495 (HC)).

[73] There are parallels between the court’s subject-matter jurisdiction to hold an overseas non-party in contempt for interfering with a court order, and the court’s subject-matter jurisdiction to make such an order against the non-party directly (see Part IVB(c)). It would be odd if the court was able to insist on compliance with an order through the indirect means of contempt but lacked jurisdiction to make the order directly (in circumstances where a direct order would otherwise be appropriate: see Acrow (Automation) v Rex Chainbelt Inc [1971] 1 WLR 1676 at 1682 for the proposition that it is appropriate to make a direct order instead of proceeding in contempt, although this case was not concerned with an overseas non-party). In fact, there is an argument that subject-matter jurisdiction in (criminal) contempt should, in principle, be more limited than the court’s jurisdiction to make a direct order, which can usually be tailored to the facts of the case through an element of discretion and is not primarily designed to punish.

[74] In Derby & Co Ltd v Weldon(Nos 3 and 4) [1990] Ch 65, the Court of Appeal stated generally that an overseas non-party is “not to be regarded as being in contempt” (at 82). The Court was concerned with the effect of freezing orders on non-parties. More specifically, the Court was concerned with cases involving overseas assets, and it is not clear whether the Court intended to rule out the existence of jurisdiction over overseas non-parties in all cases (for example, where the third party overseas takes acts in relation to assets in New Zealand). The Court’s revised Babanaft proviso, which was designed to accompany freezing orders and clarify their effect on non-parties, stated that overseas non-parties would not be affected “in so far as this order purports to have any effect outside England and Wales” (at [87]).

[75] A version of the Babanaft proviso has been adopted in Form G 38 of the High Court Rules relating to freezing orders (see Renaissance Securities (Cyprus) Ltd v Chlodwig Enterprises Ltd [2023] EWHC 3160 for a discussion whether the proviso should also be included in anti-suit injunctions). Paragraph 11 states broadly that the contempt jurisdiction does not apply to non-parties without a presence in New Zealand. A non-party is treated as being present in New Zealand if they have a residence or place of business here (paragraph 11(b)(i)). In relation to non-parties with a presence in New Zealand, Form G 38 then contains further safeguards in relation to their “acts or omissions outside the jurisdiction” (paragraph 11(b)(ii)). By comparison, UK practice seems to be to include the proviso in worldwide freezing orders only (see Appendix 11 of The Commercial Court Guide (11th ed, 2022)).

[76] The special position of directors, officers or agents of a body corporate is discussed in Part V.

[77] If there is no subject-matter jurisdiction in contempt, the plaintiff may still be able to obtain relief by suing the non-party as a defendant to an action, in accordance with the ordinary rules of private international law (including choice of law). For example, a non-party could itself be committing a civil wrong by publishing injuncted information or, more generally, assisting in the breach of an order (see JSC BTA Bank v Ablyazov (No 14) [2018] UKSC 19; Lakatamia Shipping Co Ltd v Su[2025] EWCA Civ 1389).

 

(b)          False statements

[78] In KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280, [2009] 1 WLR 2406, the Court accepted in principle that the rules of contempt applied to a foreign witness who had lied in his written evidence, noting that “[t]he integrity of the system as a whole would be undermined if it were thought that foreign witnesses were not subject to the same discipline as witnesses from this country” (at [26]). The New South Wales Court in Sunnya seemed to take the same position.

[79] In New Zealand, false statements are now dealt with under s 111 of the Crimes Act 1961, which means that the proceeding could not be served out of the jurisdiction. This means that, if the facts of Sunnya were to happen in New Zealand, the only option may be to seek extradition of the defendant to New Zealand. However, subject-matter jurisdiction under s 111 would be made out. A parallel can be drawn with s 108 of the Crimes Act on perjury, which applies where an overseas witness lies in their evidence to the New Zealand court. In Omni Marketing Group, Asia Pte Ltd v Transactor Technologies LtdHC Auckland CIV-2007-404-430, 29 May 2008, the Court considered that overseas witnesses who give false evidence by video-link would commit perjury in New Zealand (at [29]; see now the Courts (Remote Participation) Act 2010). That was because the actus reus of perjury takes place in the New Zealand court: “It does not matter that the person giving evidence is situated outside New Zealand. By participating in a video conference they cause the visual and voice content of their evidence to be projected onto a screen in a New Zealand Court”.

 

(c)          Other interference with administration of justice

[82] More generally, courts will not usually have, or exercise, jurisdiction over criminal contempt by “foreign nationals” in respect of acts “done abroad”: R+Versicherung AG v Risk Insurance and Reinsurance Solutions SA [2006] EWHC 1705 (at [69]-[71]), which was a case involving intimidation of a witness.

 

V            The position of directors, officers or agents of a body corporate

[80] Finally, it is important to highlight the special position of officers or agents of a body corporate, to whom a breach of an order may be attributed (with the result that they may be held in contempt for the breach: Part IVB); or who, alternatively, may be liable in contempt for interfering with the order (for example, by aiding or abetting its breach) even though they were not bound to comply with it under any principle of attribution (Part C(a)).

[83] Section 16 applies to persons who are “bound” by an order, which presumably includes persons bound by an order under relevant principles of attribution, even though s 16 does not include a specific rule of attribution (for an analysis of the relevant principles in English law, see ADM International SARL v Grain House International SA [2024] EWCA Civ 33, [2024] 1 WLR 3262; see Law Commission Reforming the Law of Contempt of Court (NZLC R140, 2017) at [5.72]); cf s 16(4)(a), which provides for enforcement against “the person or a director or an officer of the body corporate”).

[84] In Keemati Ltd v Civil Ltd (in liq)[2022] NZHC 195 at [68]-[70], the High Court considered that a director was not “bound by the order” if they are not a party to the proceeding within the meaning of the High Court Rules, and that it would have been necessary for the order to have been formally made against them. The effect of the reasoning is that a breach of a company can only be attributed to its officers or agents if they are named in the order, even by way of a generic reference to “its officers and agents” (at [71]).

[85] Where an officer or agent is named in a generic way, and the application for the order was not served on them outside of the jurisdiction, they can still be treated as being bound by the order (see [57] for further context). In other words, jurisdiction in relation to the breach of the order (ie the contempt) is not conditional on the original order having been served on the officer outside of the jurisdiction (Horizon Maritime Services Ltd v CNS Marine Nigeria Limited [2023] EWHC 1419). In the context of attribution, this position appears to be justifiable based on the court’s personal jurisdiction over the company (if the officer and the company are treated as one and the same for the purposes of the breach, perhaps they can be treated as one and the same for the purposes of personal jurisdiction).

[86] This principle of attribution explains the “officers” exception to the Babanaft The proviso states that overseas non-parties will not be considered to have acted in contempt of the order (see [75] above), but it does not apply to overseas officers of parties bound by the order, or agents appointed by power of attorney of such parties (although the wording of the exception – “a person to whom this order is addressed, or an officer of that person, or an agent appointed by power of attorney of that person” – may not satisfy the requirement as formulated in Keemati). Officers/directors who are treated as being bound by an order are in a different position to ordinary non-parties (see Masri v Consolidated Contractors International Co SAL [2011] EWHC 409 at [85]-[89]). They can be required to comply with orders made against their company because a company “is only capable of acting by its agents” (Dar Al Arkan Real Estate Development Co v Refai [2014] EWCA Civ 715, [2015] WLR 135 at [32], [44], [46]).

[87] In these latter two cases (and see Integral Petroleum SA v Petrogat FZE [2020] EWHC 558 for another example), the contempt jurisdiction was available in relation to the overseas acts of overseas officers: for example, in Dar Al Arkan, a failure to preserve two hard drives and the data on them, and to deliver the hard drives to their solicitors in London. The Court of Appeal distinguished the House of Lords’ decision in Masri v Consolidated Contractors International Company SAL [2009] UKHL 43, [2010] AC 90 (see [41]-[43] above) on the basis that the rule of contempt protected the “public interest” that orders should be obeyed. This was said to be “very different from the nature of the power … to obtain information from judgments debtors”, which had the court acting in aid of private rights (at [41]-[43]). Another way of framing this point may be that the position of officers in that case was “closer to that of ordinary witnesses” (at [26]) than officers who can be expected to comply with orders made against the company based on principles of attribution (see Dar Al Arkan Real Estate Development Co v Refai [2014] EWCA Civ 715, [2015] WLR 135 at [32], [46]; Masri and Manning v Consolidated Contractors International Co SAL [2011] EWHC 409 at [88]-[89]).

[88] Where the overseas officer’s conduct does not, in substance, amount to a breach of the order, or where the officer was not bound by the order under the relevant principles of attribution, they may still be liable for criminal contempt if they interfered with the court order: Young v Zhang [2017] NZCA 622, [2018] NZAR 207 (see Part C(a)). Here, the court may not have jurisdiction in relation to overseas conduct. Thus, the Guernsey Court of Appeal distinguished Dar Al Arkan on the basis that the alleged contempt was a form of civil contempt, and concluded that there was no jurisdiction over the alleged contempt by an overseas non-party that took place exclusively overseas (Tchenguiz v Akers Guernsey Court of Appeal 33/2015, 23 July 2015 at [125]-[127], [133]; cf Dar Al Arkan at [32]).

 

VI          Conclusion

[89] Where the court is asked to hold an overseas (non-)party in contempt for breaching an order under s 16 of the Contempt of Court Act, the person must have been bound by the order, which ordinarily means there must have been a statutory basis for subjecting the person to the court’s jurisdiction (such as the rules of personal jurisdiction based on service outside of New Zealand), although this does not appear to be a requirement for directors, officers or agents of a body corporate who breach an order made against the body corporate. The court must have also had subject-matter jurisdiction to make the order. In the case of non-parties, the court’s subject-matter jurisdiction to make the order needs to be carefully evaluated, because unlike with parties, it cannot be justified based on the court’s jurisdiction to determine private rights and obligations.

[90] Where the court is asked to hold an overseas (non-)party liable for breaching an order, and the proceeding is a criminal proceeding, the court cannot do so unless the person is treated as being bound by the order despite their absence, and the conduct amounts to a breach of the order for the purposes of subject-matter jurisdiction; but the court may not have power to proceed against the defendant in their absence.

[91] Where the court is asked to hold an overseas (non-)party in (criminal) contempt for interfering with the administration of justice, the court may assume personal jurisdiction over the person for the purposes of a civil proceeding, but subject-matter jurisdiction would not ordinarily extend to overseas conduct. In light of the draconian nature of the law of contempt, courts ought to tread carefully.

 

 

 

The Trans-Tasman Proceedings Regime and Extraterritorial Subpoenas

By Jack Wass (Stout Street Chambers)

In the recent decision of Sunnya Pty Ltd v Mega Aqua Limited [2025] NZHC 3482, the High Court was asked to grant an order directing a New Zealand company and its New Zealand-resident director to comply with an Australian subpoena that had been issued in contempt proceedings pending in the New South Wales Supreme Court. The case is one of a developing line of decisions demonstrating the courts’ willingness to give full effect to the regime for cooperation in civil proceedings between Australia and New Zealand, and also casts light on wider issues concerning cross-border contempt.

Sections 163-167 of the Evidence Act 2006 provide for the service and enforcement, in New Zealand, of subpoenas issued by Australian courts. These provisions were originally introduced in 1994 to implement the Closer Economic Relations policy, and were a precursor to the broader reform of the Trans-Tasman Proceedings Act 2010 which fundamentally restructured the way the courts of the two countries approach cross-border proceedings (and extended the power to grant cross-border subpoenas to criminal and some family proceedings).

The narrow point taken by the respondent in opposition in Sunnya was that the New Zealand High Court had no jurisdiction to order compliance, because s 165 specifically referred to enforcement of a subpoena by an order for arrest or a fine, and this implicitly excluded any other form of enforcement. The High Court had no difficulty rejecting this argument: Parliament had not intended to exclude an order for production, which is after all the point of the regime in the first place. The subpoena regime, consistent with the broader reforms of the TTPA, reflect a policy of mutual trust and confidence, so the rules contemplate that the safeguards against over-reaching subpoenas are supplied by the requirement to obtain leave of the trial court and for the respondent to apply to set it aside (which rights the respondents in this case had exhausted).

A fundamental policy of the TTPA is to leave consideration of the substance and merits of the underlying matters to one court, with the other court lending assistance subject only to ensuring basic safeguards are present. This may be seen in the rules for staying proceedings where the courts of the other country are more appropriate (eg Whyte v a2 Milk Company Ltd [2023] 2 NZLR 486 in the context of class actions), enforcement of judgments (eg Lange v Lange [2021] NZFLR 719), anti-suit injunctions (A-Ward Ltd v Raw Metal Corp Pty Ltd [2024] 2 NZLR 475) or interim relief in support of proceedings in the other court (Wikeley v Kea Investments Ltd [2024] QCA 201).

Thus, the Court in Sunnya rejected the respondents’ reliance on the principle that “a state should refrain from demanding obedience to its sovereign authorities by foreigners in respect of their conduct outside the jurisdiction” (MacKinnon v Donaldson Lufkin & Jenrette Securities Corp [1986] Ch 482); implicit in the High Court’s reasoning is that there could be no objection to the Australian court issuing an extraterritorial subpoena because it was the very purpose of the regime to authorise them being issued and enforced. At common law, it is doubtful whether an extraterritorial subpoena could be enforced (and therefore should be granted in the first place): Hurtigbat Vestfold Sverige Line AS v The Ship “Om” (2000) 16 PRNZ 469. In the absence of the statutory regime, the New Zealand court would inevitably not grant orders to enforce a subpoena issued by a foreign court, not least because from the perspective of New Zealand courts the foreign court would not have had subject-matter jurisdiction to grant it.

It is also noteworthy that the Court was prepared to enforce the subpoena notwithstanding the (quasi)-criminal context. The subpoena had been issued by the New South Wales Supreme Court in proceedings for contempt taken against the second respondent (and that Court rejected the proposition that the potential incrimination of the second respondent was a valid excuse for the first respondent to refuse to comply). And, of course, quasi-criminal consequences flow directly in New Zealand from a failure to comply with the Australian subpoena. Again, these considerations would have loomed large at common law, since it is a general principle that the New Zealand courts will not lend their assistance to the enforcement of foreign penal laws. It was a matter for the Australian court to consider whether the potential incrimination of the second respondent offered a basis to have the subpoena set aside; those arguments being exhausted in the Australian court, it was the duty of the New Zealand court to ensure the subpoena could be given effect.

Finally, the decision touches on interesting issues concerning contempt by third parties who are not parties to a court order but aid or abet its breach (including in their role as directors). That will be the subject of further commentary from Maria Hook in a subsequent post.

Fraud in a foreign court as a basis for anti-enforcement relief

By Maria Hook

(Please note that I am the sole author of this post. It is not the work of Jack Wass, co-editor of this blog, who acts as counsel in Kea.)

On 5-6 November, the Supreme Court will hear an appeal against the Court of Appeal’s decision in Wikeley v Kea Investments Ltd [2024] NZCA 609, [2024] 3 NZLR 901 to set aside a permanent injunction restraining enforcement of a default judgment obtained in the Kentucky Circuit Court (a so-called “anti-enforcement injunction”). The Court of Appeal upheld the High Court’s finding that the claim in the Kentucky court formed part of a global conspiracy to defraud Kea, but it concluded that an anti-enforcement injunction would be premature because Kea had not exhausted its right of appeal in Kentucky (“absent exhaustion by Kea of its remedies in Kentucky … comity requires the New Zealand courts to keep their powder dry”: at [194]).

I have written about this case before, including about the Court of Appeal’s decision (see here). The purpose of this post is to comment on the upcoming appeal, and to alert readers to a recent Honours dissertation that provides a more detailed analysis of the Court of Appeal’s reasoning, and that, with the author’s kind permission, is attached to this post here: Campbell Kidd “Cheeky Like the Kea: A New (Zealand) Approach to Anti-Suit Injunctions” (Honours Dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Ōtākou Whakaihu Waka, 2025).

I               Requirement to exhaust rights of appeal in Kentucky after New Zealand court has made findings of fraud

The question before the Supreme Court is “whether the Court of Appeal was correct to discharge the permanent anti-suit and anti-enforcement injunctions” ([2025] NZSC 75 at [2]). The scope of the appeal explicitly excludes the findings of the High Court and Court of Appeal that the Kentucky default judgment was the result of fraud and conspiracy (see [2025] NZSC 76). The issue before the Supreme Court, therefore, is whether, in circumstances where the New Zealand court had jurisdiction to determine the question of fraud and found that the defendants had committed the fraud, the application for anti-enforcement relief, too, should have been granted.

The Court of Appeal considered that it would be inconsistent with comity to grant permanent anti-enforcement relief prior to Kea exhausting its right of appeal in Kentucky. However, Kidd convincingly argues that a requirement to “exhaust remedies” in the foreign court would actually be inconsistent with the principle of comity (at 13-17). The Court of Appeal’s decision that Kea must first pursue the appeal was not motivated by a desire to defer to the Kentucky court’s view of the legitimacy of the judgment (but cf the Court of Appeal’s judgment at [177]). In Kidd’s words, if “[a]ny subsequent decision made by the [Kentucky court] will only be respected if it arrives at the same conclusion”, the New Zealand court is essentially “acting as if it were an appellate court [for Kentucky]” (at 5). Deference to the Kentucky court would be entirely “performative” and, in the words of Leggatt LJ, “patronising” (The “Angelic Grace” [1995] 1 Lloyd’s Rep 87 at 95). The US cases cited by the Court of Appeal bear out this point, to the extent that they were cases concerned with the internationally wrongful acts of states (at 10-11).

In these circumstances, the findings of fraud should have gone hand in hand with the grant of anti-enforcement relief (cf Kidd at 33). The Court of Appeal emphasised that an anti-enforcement injunction must be a measure of last resort (at [185]). Yet the whole point of the conspiracy claim was to prevent the wrongful enforcement of the judgment (and to obtain compensation for the loss suffered along the way). The Court of Appeal upheld the declaration that the judgment was obtained by fraud (the practical purpose of which was to make it easier to resist enforcement in BVI); the award of damages for costs incurred in defending the fraudulent proceeding; and the order placing WFTL in interim liquidation to prevent further unlawful conduct (including attempts to enforce the judgment). In fact, because the Court of Appeal upheld the order to place WFTL in interim liquidation, it is difficult to see how WFTL would have been in a position to oppose an argument in the Kentucky court that the judgment should be set aside (see Kidd at 32-33). In that sense, the court’s findings of fraud were intended to be definitive (and it is possible that they might even have definitive effect in the Kentucky court based on an issue estoppel).

This was not a scenario, for example, where the court decided the question of fraud purely for the purposes of determining the domestic effects of a foreign judgment, in the context of a defence to a claim for enforcement in New Zealand (see the Court of Appeal’s judgment at [154]). In such a scenario the court might have said that its own determination of the fraud should determine the enforceability of the judgment in New Zealand, but that the validity of the judgment more generally should be decided by the Kentucky courts in the first instance (because the Kentucky courts may legitimately disagree with the findings of fraud or its relevance). But that is not the scenario that played out in Kea. If an anti-enforcement injunction was an appropriate remedy at all, there seemed to be no principled reason in this case to delay relief, once the court had exercised jurisdiction over the claim and made the findings of fraud. Indeed, Kidd argues that delay makes the New Zealand court’s involvement more concerning (at 17-8).

II             The New Zealand court’s jurisdiction to make findings of fraud

Does this mean that the New Zealand court should have been more circumspect when deciding to exercise jurisdiction over the fraud in the first place? Neither the High Court nor the Court of Appeal thought so, and this question is not before the Supreme Court. However, it is useful to ask why it was appropriate for the New Zealand court to determine the question instead of deferring to the Kentucky court, because the answer also helps to explain why the grant of an anti-enforcement injunction in this case will not turn the New Zealand court into an “international police officer” (see Kidd at 21-22).

Nature of the jurisdictional question  

The High Court concluded that it was the appropriate forum to determine the conspiracy claim. The Court of Appeal rejected the appeal against jurisdiction, although it clarified that the question of appropriate forum should not determine whether there was jurisdiction to grant an injunction and shifted its focus to comity instead (see the Court of Appeal’s judgment at [174], Kidd at 24-5). New Zealand was necessarily the appropriate forum for the conspiracy claim, which could not exist in the Kentucky courts because it was premised on the fraudulently obtained Kentucky judgment. It was also the appropriate forum to grant the injunction, if there was a basis for it.

The jurisdictional question that was largely left implicit was whether the New Zealand court had, and should exercise, jurisdiction over a conspiracy claim that was based on fraud committed in the Kentucky court. This question is concerned with the parameters of the New Zealand court’s jurisdiction vis-à-vis the validity of a foreign judgment. It is possible to frame this question in the language of appropriate forum (was New Zealand or Kentucky the appropriate forum to decide whether the judgment was valid/obtained by fraud?). However, a more fitting characterisation is that the question is concerned with subject-matter jurisdiction (see Conflict of Laws in New Zealand, ch 2 at E, H1, H4). Why did the New Zealand court have subject-matter jurisdiction over a fraud perpetrated in a foreign court, and why was it right to exercise it?

There are a number of reasons why this focus on subject-matter jurisdiction is helpful. First, it helps to tease out considerations that can easily get lost in a standard inquiry into the appropriate forum. The core concern is not with the identification of the appropriate forum to hear an action. It is with subject-matter limitations on the court’s jurisdiction to determine an issue. If the issue falls within the exclusive subject-matter jurisdiction of the foreign court, the question of appropriate forum does not arise. If both courts have subject-matter jurisdiction, a binary choice of appropriate forum may miss the point – rather, the relevant question may be at what point the New Zealand court ought to become involved.

Second, it avoids the strict bifurcation into “jurisdiction to make findings of fraud” and “jurisdiction to grant an anti-enforcement injunction”. The analysis in Part I shows that, once the court had made its findings of fraud, it was too late to refuse an injunction (because at that point the sole purpose of the injunction seemed to be to give the Kentucky court another opportunity to arrive at the same conclusion). There had to be a vehicle at the jurisdictional stage to air the relevant comity concerns. Subject-matter jurisdiction provides this vehicle. Once the New Zealand court grapples explicitly with its subject-matter jurisdiction over a fraudulent foreign judgment, the relevant comity concerns rise to the fore (cf Kidd at 27-31).

Third, the question of jurisdiction need not be narrowly focused on the jurisdiction to grant anti-enforcement relief. In circumstances where steps to enforce the foreign judgment have already been successful, anti-enforcement relief would serve no purpose, but it is conceivable that a claimant would seek damages instead, claiming the loss of the enforced judgment sum. To the extent that such damages would effectively reverse the effect of the foreign judgment, they raise similar concerns to anti-enforcement injunctions, and the jurisdiction to grant either relief ought to be developed coherently. In other words, the lens of subject-matter jurisdiction brings into view cases that would benefit from coherent, non-siloed analysis.

Taking an even broader perspective, there is value in comparing fraud claims with fraud-adjacent claims like the tort of abuse of process (see Kidd at 30). There is authority for the proposition that the court does not have subject-matter jurisdiction over torts alleging an abuse of process in foreign proceedings” (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714 at [96]; Mao v Findlay [2022] NZHC 521). In the latter case of Mao, the plaintiff sought damages caused by a freezing order in China that was allegedly wrongfully obtained, and the High Court considered that it did not have “subject matter jurisdiction for matters of Chinese procedure” (at [51]). If it is true that the court lacks subject-matter jurisdiction over a foreign abuse of process (but see Kidd at 31, citing Patel v Minerva Services Delaware, Inc and others [2024] EWHC 172 at [35]-[41]), what is so special about fraud that a New Zealand court may be prepared to intervene?

Connection to fraud in foreign court

On the face of it, a claim that a foreign judgment was the result of fraud is most closely connected to the foreign court itself. It is the foreign court that was used as the means for the fraud, and it is the foreign court that can immediately bring the fraud to an end by setting aside the judgment. The same reasoning applies to other types of cases that may ultimately warrant the grant of anti-suit relief (because a foreign court has an undeniable connection to questions about the validity or appropriateness of its own jurisdiction). From a systemic perspective, it makes sense that the validity of a judgment is determined by the court that has issued it. Private international law would be at risk of unravelling if courts routinely entertained claims for relief to reverse the effects of foreign judgments that claimants say should not have been granted in the first place.

In Kea, there is an argument that the connection to Kentucky lacks meaning because the connection is itself the outcome of the fraud. Kea was dragged into the Kentucky court, based on a fabricated set of facts to justify the court’s jurisdiction over the fraudulent claim. However, the fact that the claim was a fiction does not mean that the Kentucky court’s connection to the fraud is somehow illegitimate (although it probably weakens the relative strength of the connection, see Kidd at 34-35). The Court of Appeal was right to question, therefore, “why it should be considered vexatious or oppressive for these issues to be addressed in a United States court” (at [194]). The fraudulent and oppressive nature of the fraudulent claim need not infect the foreign court’s jurisdiction over the question of fraud (in the same way, for example, that a claim brought in breach of a New Zealand jurisdiction clause does not infect the foreign court’s jurisdiction to determine the validity or effectiveness of the clause).

So why does the foreign court not enjoy exclusive subject-matter jurisdiction to determine the question of fraud? Why might there be a basis for the New Zealand court to become involved? The answer lies in the nature of fraud, as well as its connection to New Zealand based on the New Zealand court’s jurisdiction over the defendant.

Interestingly, the Court of Appeal doubted that fraud on its own could justify the grant of an injunction. Instead, the Court focused on “natural justice” as a potential ground for relief (at [183]), distinguishing Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA) on the basis that “there [was] no contractual jurisdiction clause that the New Zealand Court was seeking to enforce” (at [187]). But for the reasons explored in Part I, it is not clear why a breach of natural justice should be a condition for the court’s jurisdiction to grant the injunction, once the court has found that the pursuit of a foreign proceeding amounts to a tortious conspiracy by fraudulent means. In principle, the considerations that justify jurisdiction over the fraud also justify the grant of relief. Taken to its logical conclusion, the Court of Appeal’s reasoning suggests that it would be worse to suffer a breach of a jurisdiction clause than to be dragged into a foreign court on the basis of a fraudulent claim (including a forged jurisdiction clause in favour of the foreign court).

It is here, in the context of the court’s evaluation of its own jurisdiction in the face of competing connections to the fraud, that the plaintiff’s steps in the foreign court may need to be considered. Broadly speaking, there are two possible views.

On the first view, it is the connection to New Zealand that is stronger, so that the plaintiff should not be expected to take any steps in the foreign court to set the judgment aside. What matters is the New Zealand court’s view of the fraud. Justifications for prioritising the New Zealand connection may include that the connection to the foreign court is the outcome of the fraud and that New Zealand has a relatively strong connection to the fraud. In these circumstances, the plaintiff should not be made to run the risk of submitting to the foreign court’s jurisdiction. If the plaintiff submits to the foreign court, and the foreign court concludes that there was no fraud, this finding may have preclusive effect elsewhere, including in the New Zealand court (unless the controversial rule in Abouloff v Oppenheimer & Co (1882) 10 QBD 295 (CA) applies, which allows the New Zealand court to prioritise its own findings of fraud in the context of recognition and enforcement of the foreign judgment in New Zealand).

The strength of the evidence in support of the fraud may be a relevant consideration here. If the evidence in support of the fraud is especially strong so that, in the New Zealand court’s view, there is unlikely to be room for disagreement, the New Zealand court has no reason not to act. If the foreign court is on the same page as the New Zealand court, it will understand the New Zealand court’s exercise of jurisdiction as an act of cooperation (see Kea Investments Ltd v Wikeley Family Trustee Limited  [2022] NZHC 2881 at [68] per Gault J); and if the foreign court is not on the same page as the New Zealand court, the New Zealand court’s exercise of jurisdiction will turn out to have been both justified and necessary (see Kidd at 34). Of course, there is an argument that the New Zealand court should not get to decide that a different view of the fraud would be unreasonable, unless the New Zealand court is also the court that is otherwise more closely connected (see Kidd’s emphasis on the principle that courts are equally placed to determine justice between the parties in Section II(C); cf Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1 SCR 897, where the core question of subject-matter jurisdiction was the continuation of a Texan proceeding, and the Supreme Court said that it was “preferable that the decision of the foreign court [on its exercise of jurisdiction] not be pre-empted” (at 931), and that the Canadian courts should not usually “arrogate to themselves the decision for both jurisdictions” where there is “a genuine disagreement” about the appropriate forum (at 932)).

On the second view, it is the connection to the foreign court that may have greater weight in the first instance, but the connection needs to give way if the foreign court considers the allegations of fraud to be irrelevant (and effectively declines to determine the allegations of fraud in substance). Kidd argues that an anti-enforcement injunction should only be granted where there is cogent evidence that the foreign court will not act, because only then is the presumption that the foreign court is seeking the common interest of administering justice rebutted (at 32-3).  In such cases, it is fine for the New Zealand court to “arrogate to [itself] the decision for both jurisdictions” (Amchem at 932) because, in the New Zealand court’s view, the policy of preventing fraud ought to be universally accepted.

In Kea, the claimant had applied to the Kentucky court to set aside the judgment, which the court refused. Should the New Zealand court have insisted that Kea pursue its right of appeal in the Kentucky court before determining the question of fraud? Neither the High Court nor the Court of Appeal thought so. Kidd argues that there was cogent evidence that the Kentucky court would not act (at 35). What is more, the delay would have increased the risk that the defendants successfully remove themselves from the New Zealand court’s control. In these circumstances, the New Zealand court had a responsibility to preserve and exercise its power to prevent the fraud (at 33).

 

 

 

Protests to jurisdiction by New Zealand defendants

(By Jack Wass, Stout Street Chambers)

The Employment Court has recently clarified a short but important point about the appropriate procedure to be followed by a defendant who is served within New Zealand but contends that there is another more appropriate jurisdiction overseas. A defendant in that position is not entitled to file a notice of appearance under protest to jurisdiction under rule 5.49, but must file an application to stay the proceedings under rule 15.1: Locke v Rishworth Aviation Asia Pacific Ltd [2025] NZEmpC 74.

The point is not merely technical and is often overlooked. It reflects the principle that the Court has jurisdiction as of right over defendants who are served within New Zealand, so they cannot say that the Court lacks jurisdiction, but must ask the Court to exercise its discretion not to exercise it. By contrast, the Court has no jurisdiction as of right over a foreign-served defendant, but only where the rules of court permit service of the proceedings out of New Zealand and subject to the Court’s discretion to assume jurisdiction under rule 6.29.

The distinction has practical implications: an appearance under protest is filed instead of a statement of defence, and the defendant is generally not required to engage in interlocutory steps until the question of jurisdiction is resolved; an application to stay has no such effect, so the defendant must  also file a statement of defence or run the risk of judgment by default, and is otherwise subject to the Court’s interlocutory processes unless and until a stay is granted.

The proper course for a defendant who has been served in New Zealand who does not wish to file a defence is to seek arrangements by consent with the plaintiff, or otherwise seek directions from the Court. That will often be appropriate where there is a combination of local and foreign defendants, so that the resolution of jurisdiction can proceed on the same timetable for all defendants.

 

Recognition and enforcement of foreign judgments: Yoonwoo C & C Development v Huh [2025] NZCA 209

(By Jack Wass, Stout Street Chambers)

The Court of Appeal’s recent judgment in Yoonwoo C & C Development v Huh [2025] NZCA 209 clarified the limitation period for enforcement of foreign judgments, and in the course of its analysis made some valuable observations on the theoretical basis for the recognition and enforcement of foreign judgments under New Zealand law.

The proceedings were for the enforcement of a money judgment from the Republic of Korea. Because Korea is not party to any treaty-based arrangements for the enforcement of foreign judgments, the application was brought at common law. The question was whether the applicable limitation period under the Limitation Act 1950 was for actions on a contract (6 years) or actions on a “judgment” (12 years). The Court of Appeal upheld the High Court’s conclusion that the former period applied, and the latter only applied to domestic judgments.

Although the specific point at issue is unlikely to arise in many more cases (since the Limitation Act 2010 eliminated the anomalous 12-year period for domestic judgments), the Court’s reasons involve a valuable examination of the theoretical basis for recognising foreign judgments under New Zealand law.

The majority (Cooke and Collins JJ) emphasised that a judgment must be recognised before it can be enforced. It found that there were competing views in the authorities over whether proceedings taken to recognise and enforce a foreign judgment should be treated as an “action on a judgment”, but found as a matter of purposive construction that Parliament must have intended the shorter period to apply to foreign judgments. In particular, Parliament is unlikely to have intended that the period for judgments from most countries would be longer than that expressly applicable under the Reciprocal Enforcement of Judgments Act 1934 for (mostly) Commonwealth judgments.

Katz J agreed in the result, but expressed separate reasons. Her Honour interpreted the case law as more clearly in favour of the shorter period, but her Honour’s reasoning was particularly influenced by the “implied obligation” theory which has been established as the basis for the recognition and enforcement of foreign judgments in the common law since the 1870 decisions of Godard v Gray and Schibsby v Westenholz. The necessary corollary of that theory is that the limitation period for contract claims applied, which conclusion is supported by the history of the relevant legislation.

While the influence of Schibsby has been criticised (in particular by Andrew Dickinson) the doctrine of obligation is well established.  The decision is valuable for the Court’s consideration of the theoretical basis of the recognition of foreign judgments (including by extensive engagement with overseas authority and literature), and will be an instructive guide to other difficult issues in the treatment of foreign judgments for that reason.

New Zealand Court of Appeal allows appeal against anti-enforcement injunction

(By Maria Hook)

The New Zealand Court of Appeal has allowed an appeal against a permanent anti-suit and anti-enforcement injunction in relation to a default judgment from Kentucky, which the plaintiff alleged had been obtained by fraud: Wikeley v Kea Investments Ltd [2024] NZCA 609. The Court upheld the findings of fraud. It also did not rule out the possibility of an injunction being an appropriate remedy in the future. However, the Court concluded that an injunction could only be granted as a step of last resort, which required the plaintiff to pursue its right of appeal against the Kentucky judgment. For further analysis and comment, see this blog post over on conflictoflaws.net.