Bella Vista developer Danny Cancian has survived a court challenge aiming to declare him bankrupt - at least for now. Photo / George Novak
Bella Vista developer Danny Cancian has survived a court challenge aiming to declare him bankrupt - at least for now. Photo / George Novak
Bankruptcy proceedings against Danny Cancian have been halted by the High Court to allow the former Bella Vista developer time to file defamation proceedings against Tauranga City Council.
The ruling is the latest in a four-year battle between Cancian and timber supplier Carters, which sought a bankruptcy order against him over a more than $1 million debt.
Cancian is the former director of Bella Vista Homes. The company - now in liquidation - was behind a 21-home development in The Lakes that the council evacuated in 2018, sparking a saga that has spawned several court cases.
Timber giant Carter Holt Harvey sued Cancian over a $1.078m debt, which a judge ruled in 2020 must be paid.
Cancian failed to pay, appealing the decision in 2021 and again losing. He has said he is not able to pay.
Carters this year applied for a bankruptcy adjudication, which would allow Cancian's assets - including properties, vehicles, or other valuables - to be sold to pay his creditors. He has claimed he has no assets.
The 21-home Bella Vista development was evacuated in 2018. Photo / John Borren
Cancian opposed the adjudication. The claim was heard in the High Court at Tauranga in April. Cancian's case referred to a defamation suit he said he was planning to take against the council.
Associate Judge Rachel Sussock's reserved decision, released yesterday, said Cancian was "essentially asking for time" to allow him to bring proceedings against the council, and appeal his two remaining criminal convictions relating to the development. She said he submitted that if he recovered damages from the council, he may be able to pay Carters and, in those circumstances, it would be "more appropriate to halt rather than dismiss the application for adjudication".
Cancian submitted a letter from a barrister regarding the defamation case.
According to Associate Judge Sussock's decision, the letter claimed the council's actions in shutting down the development in 2018 "may have been based on incorrect assumptions or findings and that this could give rise, if correct, to significant civil liability particularly given the catastrophic impact that the shutting down of the project had on Mr Cancian both financially and reputationally".
Associate Judge Sussock's decision stated that a key consideration of whether to halt bankruptcy proceedings was whether Cancian's planned civil action held any substance.
To prove this, Cancian provided five documents related to the development, one of which was redacted.
"It is clear that Mr Cancian's claim may not be restricted to defamation and that there may be a claim in negligence against the Tauranga City Council," the judge found. She accepted that Cancian had "acted candidly" in providing the court information on his plans.
Carters submitted that it deserved finality, four years after first seeking court action.
"Weighing all of the above factors, in my view, it is appropriate for a halt to be ordered to allow Mr Cancian to take legal advice and apply for legal aid to bring proceedings," Associate Judge Sussock said.
"I record that I do not consider it to be appropriate to await the outcome of any appeal on the remaining criminal convictions. If civil proceedings are to be pursued, they need to be pursued now."
Cancian was granted a four-month halt on proceedings but must file a memorandum by November 25 on the status of his claim. The court will then reconsider the halt.
What is bankruptcy?
Bankruptcy is a way to clear a person's debts if there's no way they can pay back the people or organisations they owe.
It's not an easy way out — entering bankruptcy means the Official Assignee has control over everything they own (except things like clothes and household appliances), and can sell them to pay off the debts.
A person can become bankrupt if they owe more than $1,000, but it's best for people who owe more than $50,000.
If a person owes less than $50,000 they should consider a Debt Repayment Order or a No Asset Procedure instead.
Source: New Zealand Insolvency and Trustee Service
