Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562

Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562

While the applicants established a strong prima facie case of alleged misappropriation and breach of fiduciary duty by the first respondent, they failed to adduce evidence of any assets in respect of which a freezing order could operate or of any real risk of dissipation. The history of the matter showed years of notice and correspondence without evidence of asset dissipation or attempts thereof. In these circumstances, the applicants did not discharge the onus required for a freezing order against the first respondent.

Parties
First Applicant: David Hurst in his capacity as liquidator of Lloyds Curry Shop Pty Ltd (in liquidation) (ACN 143 787 044); Second Applicant: Lloyds Curry Shop Pty Ltd (in liquidation) (ACN 143 787 044); First Respondent: Kaushik Prasad; Second Respondent: Accolade Advisory Pty Ltd (ACN 604 214 100); Third Respondent: Sam Cassaniti; Fourth Respondent: Reliance Financial Services Pty Ltd (ACN 146 317 919); Fifth Respondent: David Cassaniti; Sixth Respondent: Carmelo Duardo
Jurisdiction
Australia
Judgment Date
13 December 2021
Procedural Posture
Interlocutory Application / Determination of Application for Freezing Orders
Outcome
Application for freezing order against the first respondent dismissed; costs ordered against the applicants.
Legal Topics
Freezing Orders, Insolvent Trading, Breach of Fiduciary Duty, Breach of Trust, Asset Dissipation, Equitable Remedies
Commercial Law Corporations Law Insolvency Law Practice and Procedure Freezing Orders Insolvent Trading Breach of Fiduciary Duty Breach of Trust +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 14 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

David Hurst in his capacity as liquidator of Lloyds Curry Shop Pty Ltd (in liquidation) (ACN 143 787 044)

First Applicant

Lloyds Curry Shop Pty Ltd (in liquidation) (ACN 143 787 044)

Second Applicant

Kaushik Prasad

First Respondent

Accolade Advisory Pty Ltd (ACN 604 214 100)

Second Respondent

Sam Cassaniti

Third Respondent

Reliance Financial Services Pty Ltd (ACN 146 317 919)

Fourth Respondent

David Cassaniti

Fifth Respondent

Carmelo Duardo

Sixth Respondent

Procedural Posture

Interlocutory Application / Determination of Application for Freezing Orders

Legal Issues

  1. 1 Whether the applicants have established a prima facie case for relief against the first respondent
  2. 2 Whether there is a risk of dissipation of assets by the first respondent justifying a freezing order
  3. 3 Appropriate exercise of the Court's discretion to grant a freezing order

Ratio Decidendi

While the applicants established a strong prima facie case of alleged misappropriation and breach of fiduciary duty by the first respondent, they failed to adduce evidence of any assets in respect of which a freezing order could operate or of any real risk of dissipation. The history of the matter showed years of notice and correspondence without evidence of asset dissipation or attempts thereof. In these circumstances, the applicants did not discharge the onus required for a freezing order against the first respondent.

Court Disposition

Application for freezing order against the first respondent dismissed; costs ordered against the applicants.

Orders

  • Prayer 8(a) of the applicants' amended interlocutory process dated 23 November 2021 be dismissed.
  • The applicants pay the first respondent's costs of and incidental to the determination of prayer 8(a) of the amended interlocutory process.