BETWEEN NEW ZEALAND AGED CARE SERVICES LIMITED Respondent/Judgment Creditor AND SINA SILAINA PAUNA First Judgment Debtor AND ANTONIA ALLEN PAUGA Applicant/Second Judgment Debtor

[2023] NZHC 3214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002317

[2023] NZHC 3214

BETWEEN

NEW ZEALAND AGED CARE SERVICES LIMITED
Respondent/Judgment Creditor

AND

SINA SILAINA PAUNA

First Judgment Debtor

AND

ANTONIA ALLEN PAUGA

Applicant/Second Judgment Debtor

Hearing:

14 November 2023

Appearances:

Richard Gordon for the Respondent/Judgment Creditor No appearance for the First Judgment Debtor

Robert Hucker and Mark Swan for the Applicant/Second Judgment Debtor

Judgment:

14 November 2023

JUDGMENT OF MOORE J

This judgment was delivered by me on 14 November 2023 at 5:00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar Date:

NEW ZEALAND AGED CARE SERVICES LIMITED v PAUNA & ANOR [2023] NZHC 3214

[14 November 2023]

[1]    Earlier today a without notice application was filed by the applicant/second judgment debtor, Antonia Allen Pauga seeking orders entering satisfaction of judgment under r 11.28  of the  High Court Rules  2016, together with orders under   r 17.29 staying an enforcement order and/or orders under r 17.30 setting aside enforcement processes.

[2]    Mr Pauga is the occupier of a family home which is scheduled to be sold by auction tomorrow (“the property”) following the plaintiff/respondent obtaining a sale order to recover debts owed.

[3]    There is some dispute around the legitimacy of the sale order obtained by the which, as noted, is in the process of execution by the Sheriff of this Court.

[4]    It is undisputed that the first judgment debtor, Sina Silaina Pauna, owes money to the respondent/judgment creditor, New Zealand Aged Care Services Limited (“NZACS”), in relation to aged care services. NZACS is a guarantor under an agreement entered into with Ms Pauna, who is the applicant’s/second judgment debtor’s mother.

[5]    As noted, the property in question is occupied by the applicant/second judgment debtor and has been in the family in excess of 40 years. Also residing at the address, and under his sole care, is Mr Pauga’s brother who suffers from a psychiatric disorder (schizophrenia).

[6]    Mr Hucker, for the applicant/second judgment debtor, took me through the documentation in support of the  orders  he  seeks.  However,  after  hearing  from Mr Gordon, for the respondent/judgment creditor, I consider it is simply impossible for me to determine the competing claims on the limited material I have before me and in the context of what is, essentially, an application for interim relief, restraining the sale of the property.

[7]    Mr Hucker took me through aspects of the evidence filed, supplementing these with his own observations, the upshot of which is that he expressed confidence that all outstanding monies due and payable to the respondent/judgment creditor will be paid

by 1 December 2023. Mr Gordon explained the chronic history of unfulfilled promises of payment which he submitted should leave the Court sceptical as to the sincerity of the most recent offer.

[8]    However, if Mr Hucker’s analysis is correct, Mr Gordon agreed that there would be sufficient funds to extinguish the debt. Furthermore, arrangements for the ongoing care of the first judgment debtor are now in place and no further, additional debt will be incurred beyond that presently owing.

[9]    On that basis, I am satisfied that it is appropriate to make interim orders restraining the sale of the property pending payment of the outstanding monies. A final drawdown is expected on or before 1 December 2023. The appropriate course is to extend the interim orders for a week after that date in order to be in a position to confirm that all outstanding debts have been satisfied.

[10]   Accordingly, I direct that the sale of the property is to  be deferred until  12:00 pm on Thursday, 7 December 2023. The matter will be placed in the Duty Judge list that day for review.

[11]   Leave is reserved to either party to seek such further or other orders as may be necessary.

Moore J

Solicitors:

MinterEllisonRuddWatts, Wellington Molloy Hucker, Auckland