Carters v Cancian - [2022] NZHC 1862

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-57

[2022] NZHC 1862

IN THE MATTER AND

IN THE MATTER

of the Insolvency Act 2006

of the bankruptcy of DANNY JOHN CANCIAN

BETWEEN

CARTERS a division of CARTER HOLT HARVEY LIMITED

Judgment Creditor

AND

DANNY JOHN CANCIAN

Judgment Debtor

Hearing:
31 March 2022 (Further submissions filed by the Judgment

Creditor on 19 April 2022 and the Judgment Debtor on 4 May 2022)

Counsel:

PJ Morris for the Judgment Creditor

DJ Cancian, Judgment Debtor in person

Judgment:

29 July 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 29 July 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Stace Hammond, Auckland

Copy to:
Mr DJ Cancian

CARTERS v CANCIAN [2022] NZHC 1862 [29 July 2022]

Introduction

[1] Carters has applied to adjudicate Mr Cancian bankrupt relying on a failure to pay a High Court judgment in Carters’ favour for $1,078,668.23.1

[2] Mr Cancian appealed the High Court decision, but the Court of Appeal dismissed Mr Cancian’s appeal on 24 August 2021.2

[3] Mr Cancian opposes Carters’ application and seeks a halt of the bankruptcy proceedings. This is to allow him to seek legal advice (and potentially legal aid) to bring civil proceedings against the Tauranga City Council and to appeal his remaining convictions to the Court of Appeal.

[4] Mr Cancian says he has no assets and so there is no benefit for Carters in immediately bankrupting him. He says he has the support of several creditors and that if the bankruptcy proceedings are halted, he presents no threat, risk or otherwise to the community or the business community as he is unable to operate. If he does not proceed with legal proceedings, Mr Cancian says he will not oppose bankruptcy orders being made.

[5] Carters submits in response that it has been involved in litigation with Mr Cancian for over four years now and that it is time for the Official Assignee to investigate Mr Cancian’s estate and to give Carters finality.

[6] Carters submits that Mr Cancian has not satisfied the Court that either it is just and equitable not to make an order for adjudication or that there is some other sufficient reason for the Court not to make an order.

[7] Furthermore, Carters says there are no valid reasons for the Court to halt Carter’s application as any action in defamation is still able to proceed and the Official Assignee could bring proceedings on Mr Cancian’s behalf or assign the right to bring proceedings to Mr Cancian if that is appropriate.

1 Carters v Cancian [2020] NZHC 2838.
2 Cancian v Carters [2021] NZCA 397.

Issues

[8]The issues are:

(a)Has Carters proved a prima facie case for adjudication?

(b)Is there any reason not to adjudicate or to halt the adjudication?

Background

[9] The debt on which Carters’ bankruptcy application is based, arises out of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carters v Cancian

Details

AGLC: Carters v Cancian [2022] NZHC 1862
Case: [2022] NZHC 1862
Decision Date: 29 July 2022

CaseChat Overview and Summary

Carters has applied to adjudicate Mr Cancian bankrupt, relying on a High Court judgment against Mr Cancian for $1,078,668.23. Mr Cancian opposed the application and sought a halt to allow him to seek legal advice and bring civil proceedings against the Tauranga City Council. The court was required to decide whether Carters had proved a prima facie case for adjudication and whether there was any reason not to adjudicate or to halt the adjudication. The court found that Carters had proved a prima facie case for adjudication. The court also found that there was a reason to halt the adjudication. The court found that Mr Cancian had a course of action that, if successful, would have the effect of undermining the indebtedness upon which the proceedings were based. The court found that Mr Cancian was bona fide in his intention to take that course of action. The court found that there was some merit in Mr Cancian's proposed course of action. The court found that Mr Cancian had acted candidly by putting all relevant information before the court. The court found that granting a halt would not operate unjustly on Carters. The court found that the wishes of all affected parties, including other creditors and Mr Cancian, were in favour of granting a halt. The court halted Carters' application for adjudication until further order of the court. Mr Cancian was to file and serve a memorandum by 25 November 2022 confirming whether proceedings had been filed and, if not, updating the court on when proceedings were to be filed. Carters was to file and serve any memorandum in response by 30 November 2022. Further orders would then be made on the papers either extending the halt, making orders by consent, or further directions for next steps. Mr Cancian was not entitled to recover costs as he was a litigant-in-person.

In summary, the court found that Carters had proved a prima facie case for adjudication. The court also found that there was a reason to halt the adjudication, primarily to allow Mr Cancian to seek legal advice and potentially bring civil proceedings against the Tauranga City Council. The court balanced the interests of Carters, who had been involved in litigation with Mr Cancian for over four years, against Mr Cancian's interests in pursuing legal remedies. The court halted the adjudication for four months to allow Mr Cancian to take legal advice and apply for legal aid to bring proceedings. If Mr Cancian decided not to file proceedings after taking legal advice, then orders could be made promptly in the proceeding by consent allowing a bankruptcy order to be issued.

Orders