Geneva Finance Limited v Pahulu DC North Shore CIV-2008-092-2700 [2012] NZDC 578 (23 April 2012)

Last Updated: 22 December 2019

IN THE DISTRICT COURT AT NORTH SHORE

CIV-2008-092-002700

BETWEEN GENEVA FINANCE LIMITED Plaintiff

AND LAUPOKITELEKAVA PAHULU Defendant

Hearing: 23 April 2012

Appearances: J-M Trotman for the Plaintiff Defendant Appears in Person

Judgment: 23 April 2012

ORAL JUDGMENT OF JUDGE L I HINTON

[1] Mr Pahulu appears before the Court in relation to an amount owed to Geneva Finance Limited as judgment creditor in the sum of $17,477.59. He has appeared before me recently, on two previous occasions, in connection with his application for relief from the present order for payment of $120 per week out of disposal income, which he appears to have, of approximately $640 per week.

[2] The disposable income is from his current employment as a fish filleter, a job he has had for some two years – in respect of which he has steady employment of 40 hours per week with sometimes more hours available.

[3] Today he has given evidence with the assistance of an interpreter, following on from his last appearance. That particular appearance followed on from the 27 February hearing when I advised Mr Pahulu to produce some perhaps more detailed and specific documentary evidence concerning his employment, expenditures and so forth. A statement of means form was prepared by him and has been the subject of some of his evidence this morning.

GENEVA FINANCE LIMITED V PAHULU DC NSD CIV-2008-092-002700 [23 April 2012]

[4] Undoubtedly, there is a lack of precision and science with some of Mr Pahulu’s evidence. Certainly, the statement of means form refers, for example, to figures which must be underestimated, so far as his expenditure is concerned. He hazards in the statement of means form that his expenditure on food and household is $100. That must, on any view of it, be a modest and incorrect assumption. He hazards that petrol bus or taxi, by way of example, sees a further $100 expenditure. There is no specific allowance for any other items of expenditure including insurance, by way of example (and I asked him specifically about this and he has none).

[5] I allow that he does have what must be a nominal figure of $30 for electricity/gas which is included. Of note, his rental estimate of $200 is itself inaccurate because his rent expenditure is $160 per week. Of course it goes without saying that he may well have mis-judged his salary from his employment because that itself is stated at $500.

[6] There appear to be no other significant payments that Mr Pahulu is making. He is not making any car payments. He is not making now (and this has just been checked by the registrar) any payments towards Court fines which he formerly was making I understand at the rate of $80 per week ending on, according to the statement which I have just been handed, 12 January 2012.

[7] In evidence today Mr Pahulu advanced a sweeping proposition that his expenditures on general living, including shopping, power, transportation, petrol et cetera, exhaust the bulk of his available income when his rent is added to that. Over the last month, since his last appearance, he has kept receipts for all of his expenditures. That is quite a serious step that Mr Pahulu has taken and he had those receipts available for inspection today; I did not take the opportunity to consider those receipts in detail. Mr Pahulu said in summary that it was (if I may put it this way) relevant living expenditure in relation to his household and so forth and, frankly, from the manner in which he gave his evidence, it seemed to me that that was a perfectly tenable proposition for the Court to take into account.

[8] Mr Pahulu was questioned by Ms Trotman quite fairly in respect of some aspects of his evidence. Ms Trotman has appeared for Geneva Finance today (as she has on previous occasions) and has been present at previous examinations of Mr Pahulu when the registrar rather than the Judge has been presiding.

[9] The question for the Court now is whether there should be any variation from the payment of $120 per week. Mr Pahulu suggests to me, in his evidence, that he could pay $70 per week which is a slight increase on my recollection from what his original proposal was; that proposal was that he should pay $50 per week. My view is that I cannot make any scientific outcome based on the evidence that Mr Pahulu has given. I have the feeling that if the figure were to stay at $120 it would not be possible for Mr Pahulu to sustain it. On the other hand, my view is that a payment of

$50 per week is manageable for him and would not see any defaults but it would mean that Geneva Finance would be out of pocket for a longer period.

[10] I have to take into account the evidence Mr Pahulu has given and my assessment of him as a witness in giving that evidence. I have to be realistic also in terms of what I view as his expenses, based upon the materials which are before the Court. It would be possible for both Ms Trotman and myself to have cross-examined and examined Mr Pahulu at considerably greater length and to have undertaken a minute monitoring and inspection of the receipts that he had available in Court today. I am entitled to take into account the fact that Mr Pahulu has taken that step following on from the last hearing and to draw from it the inference that he does take and will take his responsibilities to Geneva Finance seriously.

[11] I took note of the fact that he willingly admitted and accepted his liability to Geneva Finance, that he wishes to pay Geneva Finance and that he is offering to pay

$70 per week. My view of the matter is that I must now set what I consider to be a realistic amount taking into account all the circumstances and the evidence.

[12] The proposition for Geneva Finance is that there is available income here that Mr Pahulu does not have committed that is in the region of up to $300 per week. That is based on the prospect that his income may be a little higher in that he has perhaps failed to take into account the $144 per week child payments and moreover

it is based on the fact that his expenditure on household/food (as I mentioned at the beginning of this decision) was $100 per week as is set out in the statement of means. I regard that particular estimate as I mentioned of $100 as entirely unrealistic and not to be accepted by a Court taking a realistic view of his situation.

[13] The conclusion that I have come to is that the $120 per week must be varied and the order that is made is that Mr Pahulu at this stage must pay from his salary on a basis to be determined by the registrar (whom I will check with in a minute as to the detail) at the rate of $80 per week which I regard as a payment which realistically should be able to be made by Mr Pahulu.

[14] There will be an order then for costs of $750 in favour of the judgment creditor, and so far as Mr Pahulu’s application is concerned the formal result is the judgment sum must be paid at the rate of $80 per week by way of attachment order on Mr Pahulu’s salary, commencing 9 May 2012 and in relation to which Mr Pahulu will give the registrar if he has not already details as to his supervisor superior and requisite telephone contact and other details required by the registrar.

L I Hinton

District Court Judge