Federal Court of Australia

Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad (No 5) [2026] FCA 1221

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena addressed to Bridges Lawyers Pty Ltd and issued on 13 March 2026 on the application of the Applicants be set aside.

2.    The Applicants pay, on the ordinary basis, as agreed or assessed:

(a)    the costs of Dominic Calabria, Benjamin Dibden and Bridges Lawyers Pty Ltd of the interlocutory application accepted for filing on 23 April 2026; and

(b)    the costs of the Second and Sixth Respondents of the interlocutory application accepted for filing on 9 June 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These reasons address two applications to set aside a subpoena seeking material held under search orders made in separate proceedings.

2    David Hurst in his capacity as Liquidator of Lloyds Curry Shop Pty Ltd (In Liquidation) (ACN 143 787 044) and Lloyds Curry Shop, the First and Second Applicants respectively, caused a subpoena to be issued to the Proper Officer of Bridges Lawyers Pty Ltd. I will refer to the Liquidator and Lloyds Curry Shop collectively as the Applicants.

3    The Subpoena, filed on 13 March 2026, sought records of communications between Sam Cassaniti and each of Kaushik Prasad, Om Wati Prasad, Leonadis Giakis, Michael Lowe, David Cassaniti and Carmelo Duardo during the period from 1 January 2014 to 31 December 2015. Sam Cassaniti, Mr Prasad, David Cassaniti and Mr Duardo are parties to this proceeding. I will refer to Sam Cassaniti and David Cassiniti using their first names as well as their surname in order to distinguish between them.

4    Bridges was the corporate addressee named in the Subpoena. However, Bridges does not hold the material in its own right, but by two of its solicitors, Dominic Calabria and Benjamin Dibden, in their capacity as independent lawyers appointed under search orders made in NSD193/2025 and NSD194/2025. In each of these proceedings the search orders were made in relevantly identical terms. I refer to those orders as the Search Orders, to the proceedings as the Search Order Proceedings, and to Mr Calabria and Mr Dibden as the Independent Lawyers. Four independent computer experts from Digital Trace Australia, Nigel Carson, Kaustav Mehta, Briston Talbot and Mar Noordin, were also appointed under the Search Orders as the Independent Computer Experts.

5    Neither Applicant is a party to the Search Order Proceedings. Some respondents to this proceeding were searched parties or are otherwise affected by orders made in those proceedings. As such, the Subpoena seeks access, for the purposes of this proceeding, to material obtained under orders made in proceedings to which the Applicants are not parties.

6    On 23 April 2026, Bridges and the Independent Lawyers, acting jointly, filed an interlocutory application seeking to set aside the Subpoena pursuant to r 24.15 of the Federal Court Rules 2011 (Cth). In the alternative, they sought orders permitting the Independent Lawyers and the Independent Computer Experts to provide documents to Bridges for production under the Subpoena, together with declarations protecting Bridges and the Independent Lawyers from contravening any Search Order or undertaking by doing so. This is the first of the two applications to set aside the Subpoena with which these reasons are concerned.

7    On 9 June 2026, Accolade Advisory Pty Ltd, the Second Respondent, and Mr Duardo, the Sixth Respondent, filed an interlocutory application which also sought to set aside the Subpoena. This is the second of the two applications to set aside the Subpoena.

8    The Applicants oppose the interlocutory applications but do not oppose the alternative relief sought by Bridges and the Independent Lawyers, namely that leave be granted for third parties to produce the documents.

9    There is a final introductory matter to note. By orders made by Registrar Young on 30 April 2026 and 1 July 2026: (1) the Applicants; (2) Bridges and the Independent Lawyers; and (3) Accolade Advisory and Mr Duardo were granted leave to file written submissions in relation to the interlocutory applications. Sam Cassaniti, the Third Respondent, filed submissions on 4 August 2026 without leave. The Applicants subsequently filed responsive submissions and evidence on 18 August 2026, also without prior leave, including an application to amend the Subpoena. I have considered the material filed on 18 August 2026 only to the extent necessary to determine the Applicants’ informal application to amend the Subpoena and the responses to that application. I have otherwise not considered submissions filed without leave after the matter was reserved for determination on the papers.

BACKGROUND

Background to the substantive proceeding

10    The background to the substantive proceeding is set out in four earlier judgments of the Court, most recently in Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad (No 4) [2025] FCA 576. It is sufficient for present purposes to give the following brief overview.

11    The proceeding arises from the liquidation of Lloyds Curry Shop, formerly known as ND Stores Pty Ltd, which operated restaurants using the “Miss India” name as trustee of the ND Stores Trust. Lloyds Curry Shop was purportedly placed into voluntary liquidation on 7 August 2015. The validity of the liquidators’ appointment is disputed, including on the basis that Mr Prasad, the company’s sole shareholder, did not consent to or approve the resolution to wind up the company. The Liquidator seeks relief directed to regularising his status as liquidator.

12    The Liquidator seeks to recover funds transferred from the company’s bank accounts on 7 August 2015, being the day of its purported liquidation, in three transactions totalling $780,702.53 to MI Stores 1 Pty Ltd, and subsequently transferred through accounts held or operated by Accolade Advisory and Reliance Financial Services Pty Ltd, the Fourth Respondent, before being disbursed to other entities and persons. The Liquidator alleges that those transactions formed part of a dishonest and fraudulent design to misappropriate trust property under the company’s control and defeat its return to creditors, and advances claims for breach of trust, breach of fiduciary duty, knowing assistance and knowing receipt, including proprietary relief and tracing remedies against Accolade Advisory, Reliance and Mr Duardo. The Liquidator also alleges that Mr Prasad was a de facto or shadow director of the company and is liable for insolvent trading in respect of debts incurred by the company while insolvent, including liabilities to the Australian Taxation Office and the Queensland revenue authority.

Background to the Subpoena

13    The Search Orders, made on 19 February 2025 under r 7.43 of the Rules and s 23 of the Federal Court of Australia Act 1976 (Cth), were directed to Sam Cassaniti, Accolade Advisory and McEvoy Legal Pty Ltd. They authorised the search for, removal and preservation of documents and electronic material. The Search Orders also appointed the Independent Computer Experts to assist in securing and preserving electronic material. The orders have been varied on several occasions, principally to extend dates.

14    Under the Search Orders, the Independent Lawyers undertook to retain custody of material removed during execution until its delivery to the Court or further order. They also undertook not to use material obtained through execution for another civil or criminal proceeding without leave of the Court.

15    On 17 June 2024, I made orders for discovery in this proceeding. On 24 March 2025, Registrar Farrell made orders by consent that Sam Cassaniti, David Cassaniti, and Mr Duardo comply with the discovery orders by 4.00pm on 2 May 2025, subsequently extended to 16 May 2025.

16    In June and July 2025, Sam Cassaniti, David Cassaniti, and Mr Duardo filed the following affidavits:

(1)    on 2 June 2025, David Cassaniti swore an affidavit producing two emails;

(2)    on 2 June 2025, Sam Cassaniti swore an affidavit producing a number of emails; and

(3)    on 2 July 2025, Mr Duardo swore an affidavit that he could not locate any responsive documents.

17    It is against this background that the Applicants issued the Subpoena for communications between the named individuals and Sam Cassaniti for a two-year period covering either side of the purported liquidation of the company.

18    The Search Orders permitted the Independent Lawyers to take custody of material over which privilege was or might later be claimed, with those claims to be subsequently determined. The Independent Lawyers retain 60 boxes containing 799 packets of physical documents, including four discs and USB storage devices, and a mobile phone held in a sealed envelope. Privilege is claimed over the mobile phone and 96 physical packets on behalf of 74 persons or entities. The contents of the discs and USB storage devices have not been reviewed and may also be subject to privilege claims.

19    An application to set aside the Search Orders was heard by Moore J, the docket judge in the Search Order Proceedings. The evidence before the Court is that judgment was reserved and, so far as the materials presently available disclose, has not been delivered. Pending determination of that application or further order, the Search Orders remain the source of the Independent Lawyers’ authority and obligations in relation to the material, including their obligations concerning custody, use and delivery. The procedure established by the Search Orders continues to be case managed by Moore J.

EVIDENCE

20    The evidence on the applications comprises affidavits of Mr Calabria sworn 22 April 2026, Gavin Parsons, Managing Director of Gavin Parsons and Associates, sworn 27 May 2026, and Raphael Grossman, solicitor at McEvoy Legal Pty Ltd, affirmed 5 June 2026, together with their exhibits. For the limited purpose identified above, I have also considered the affidavit of Saif Husseini, paralegal at Gavin Parsons & Associates, sworn 18 August 2026 and filed in response to Mr Cassaniti’s submissions filed without prior leave.

CONSIDERATION

21    Rule 24.15 of the Rules permits the Court, on the application of a person having a sufficient interest, to set aside a subpoena in whole or in part or grant other relief in respect of it. The issues raised by the present applications concern the character in which the Independent Lawyers hold the material, the burden of compliance, the unresolved privilege claims and the interaction between the Subpoena and the Search Orders.

Material held under the Search Orders

22    Rule 24.12(2)(b) of the Rules prohibits a subpoena requiring production of a document or thing in the custody of this Court or another court. Rule 24.24 provides a different procedure for the production of material in the custody of the Court. A party may identify the document or thing in writing to a Registrar, who must produce it in Court to a person authorised to take evidence, or as the Court directs. Those rules reflect the principle that production of, and access to, material held for the Court should remain subject to judicial supervision.

23    Rule 24.24 requires the document or thing sought to be identified. Whether that procedure is available in relation to repositories that have not been processed or searched, and from which responsive documents have not been individually identified, need not be determined on these applications. Nor is it necessary to determine whether the material held by the Independent Lawyers is technically in the custody of the Court for the purpose of r 24.12(2)(b). The character and purpose of their custody are nevertheless material to the exercise of the Court’s power under r 24.15.

24    Bridges and the Independent Lawyers submit that the material is held on behalf of and under the control of the Court. It relies on the Independent Lawyers’ obligation under the Search Orders to preserve the material, not to deal with it except as authorised, and ultimately to deliver it to the Court. They also submit that, although the material remains in the Independent Lawyers’ physical possession, the Subpoena seeks production of material held within a Court-directed process.

25    Bridges and the Independent Lawyers rely on Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190; 273 FCR 638 (Moshinsky, Wheelahan and Abraham JJ). The Full Court was concerned with whether execution of a civil search order had extinguished or waived claims to privilege against self-incrimination and exposure to penalties. The relevant order required material over which privilege was claimed to be sealed, held by the independent lawyer and later delivered to the Court for determination of the claims. In that context, the Full Court observed at [83] that production to the independent lawyer was “tantamount to production to the Court pending resolution of the claims to privilege”.

26    That observation reflected the preservative purpose of the search order and the safeguards governing the independent lawyer’s custody. The Full Court was not considering r 24.12(2)(b), and its observation does not determine whether the material in this case is technically in the custody of the Court. It nevertheless supports the proposition that physical possession by an independent lawyer may be an incident of a Court-directed custodial arrangement rather than ordinary possession for the lawyer’s own purposes.

27    The Applicants submit that the material has not been delivered to the Registry and remains in the possession and control of the Independent Lawyers. On that basis, the Applicants contend that neither r 24.12(2)(b) nor the procedure in r 24.24 applies. The Applicants further submit that accepting Bridges and the Independent Lawyers’ position would leave no means by which the material could be obtained.

28    I do not accept that the latter conclusion follows. The material is subject to the continuing control of the Court in the Search Order Proceedings. Whether, and by what procedure, the Applicants might seek access to identified material is not a question that must be determined on these applications. It is sufficient to observe that the Subpoena is not the only conceivable means by which access might be sought.

29    The Applicants also submit that the Independent Lawyers are in no materially different position from a party holding documents subject to the implied undertaking considered in Hearne v Street [2008] HCA 36; 235 CLR 125. Relying on Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398; ATPR 42-224 at [13] (Gordon J), the Liquidator submits that an undertaking restricting the use of documents does not answer an otherwise valid compulsory process. On that analysis, the Independent Lawyers’ undertakings regulate only their voluntary use of the material and do not prevent compliance with the Subpoena.

30    I do not accept that analogy. In Cadbury Schweppes, the undertaking restricted the use that a party could make of documents obtained through the compulsory processes of other litigation. The position here is materially different. The Independent Lawyers hold the material as a consequence of the Court’s exercise of its coercive powers requiring the searched parties to permit entry, search and removal for the purpose of preserving evidence.

31    Civil search orders are exceptional and intrusive. Their operation is attended by safeguards designed to protect the rights and interests of those affected, including independent custody, preservation of privilege, restrictions on access and use, and continuing judicial supervision. Those safeguards balance the interest in preserving evidence against the intrusion occasioned by the orders and the risk that material obtained through them may be used for a purpose beyond that for which the orders were made.

32    The Independent Lawyers’ possession is therefore not merely possession subject to an undertaking restricting use. They did not obtain the material as parties to this proceeding or for their own purposes. They obtained and retain the material to perform functions conferred by the Search Orders, subject to obligations to preserve it, not to deal with it otherwise than as authorised, and to deliver it to the Court or as the Court otherwise directs. Their physical possession is subordinate to the Court-directed process established by those orders.

33    Rules 24.12 and 24.24 are relevant by analogy. They reflect the importance of maintaining judicial control over material held for the purposes of another Court process, including questions of production, privilege, access and inspection. That consideration applies with acute force where the material was obtained through an intrusive compulsory process, is held by independent officers for a limited purpose, and remains subject to unresolved privilege claims.

34    It is unnecessary to decide whether r 24.12(2)(b) itself prohibited the issue of the Subpoena. For the purpose of r 24.15, the character in which the Independent Lawyers hold the material, the restrictions governing its use and the Court’s continuing supervision weigh strongly against permitting its production through the Subpoena issued in this proceeding. To permit that course would risk bypassing the safeguards and supervisory arrangements established by the Search Orders in the Search Order Proceedings.

35    This conclusion does not determine whether the Applicants may obtain access to identified material by some other procedure. Nor is it necessary to determine the form or prospects of any such application. It is sufficient to conclude that the Subpoena should not be permitted to operate as a means of obtaining material held within the Court-directed regime established by the Search Orders.

Additional considerations

36    That conclusion is sufficient to dispose of the applications. I nevertheless address two further considerations which provide additional support for setting aside the Subpoena: the burden of compliance and the unresolved privilege and Search Order processes.

Burden of compliance

37    The material is extensive. As mentioned, the Independent Lawyers hold 60 boxes containing 799 packets of physical documents, including four discs and USB storage devices, together with a mobile phone in a sealed envelope. Claims for legal professional privilege have been made over the mobile phone and 96 physical packets on behalf of 74 persons or entities. The contents of the discs and USB storage devices have not been reviewed and may also be subject to privilege claims.

38    The Independent Lawyers estimate that reviewing the physical material alone, excluding the storage devices and the costs of addressing privilege, would cost approximately $10,000 to $15,000 plus GST.

39    The Independent Computer Experts hold images of approximately 57 devices, preserved data from approximately 38 Microsoft Office 365 accounts, SharePoint sites, network storage data, and LEAP reports (a legal practice management software). The LEAP database contains 1,229 matters, potentially involving about 1,000 clients whose files may have no connection with the Search Order Proceedings. The data is extensive and much of it, including the images of approximately 57 devices, would require extensive processing before inspection. The evidence is that processing and inspecting the data requiring conversion would take weeks and cost approximately $100,000 to $200,000 plus GST.

40    The Applicants submit that the burden will be materially reduced by the proposed amended subpoena, which is confined to emails and text messages over a shorter period and requires the communications to refer to Lloyds Curry Shop. The Applicants further submit that there is no evidence from the Independent Computer Experts that searching the Microsoft Office 365 accounts would be onerous and that much of the LEAP material would be irrelevant to the amended request. I accept that the evidence does not establish that the preserved Microsoft Office 365 account data would require the same processing as the device images. It does not follow, however, that compliance with the amended request would be confined to a straightforward search of those accounts or that the broader burden of identifying and reviewing responsive communications would be avoided.

41    The proposed amendment would narrow the inquiry. It would not, however, avoid the processing and searching required in relation to at least the device images, or the need to identify responsive communications across the relevant repositories and review them for responsiveness and privilege. Mr Calabria’s evidence is that confining production to electronic communications would not reduce the overall burden of compliance.

42    The burden cannot be assessed without regard to the capacity in which the material is held. The Independent Lawyers did not create or assemble it in the ordinary course of their practice. They assumed custody to perform functions under the Search Orders and to assist the Court. Requiring them to coordinate the processing, searching and privilege review of extensive material for use in separate proceedings would extend materially beyond those functions. I also accept the submission that imposing such burdens on independent practitioners appointed under search orders may discourage practitioners from accepting similar appointments.

43    I am therefore satisfied that compliance with the Subpoena, including in its proposed amended form, would impose a substantial and disproportionate burden upon the Independent Lawyers. That burden is an additional factor favouring the exercise of the power under r 24.15 to set the Subpoena aside.

Unresolved privilege and Search Order processes

44    A further consideration is the application to set aside the Search Orders which is currently reserved for judgment. Claims for legal professional privilege have been made over substantial parts of the material which have not been determined. The period for making further claims has also been extended.

45    The Applicants submit that the pending challenge to the Search Orders does not affect the validity or enforcement of the Subpoena and that any privilege claims can be managed through the procedure ordinarily adopted for documents produced under subpoena, with affected persons given an opportunity to assert privilege before access is granted.

46    Bridges and the Independent Lawyers rely on Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64; 142 ACSR 58 at [132]-[135]. In that case, Anderson J held that material seized under a search order remained in the custody of the independent parties pending determination of privilege claims, although it had been retrieved from the Court. His Honour considered that distributing the material before those claims were determined would “undoubtedly subvert the protections contemplated by the search order”: at [133]-[134]. Production was ultimately permitted only after the privilege objections had been determined: at [135].

47    The position here is materially different. Substantial privilege claims remain unresolved, further claims may yet be made, and judgment on the application to set aside the Search Orders has not been delivered. The existing regime provides for those matters to be addressed within the Search Order Proceedings, including claims made on behalf of persons who are not parties to this proceeding.

48    The ordinary subpoena procedure would not necessarily avoid duplication of that process or protect all affected privilege holders. Production before the application is determined and privilege processes are resolved may also complicate the future disposition of material obtained under the Search Orders. It is unnecessary to conclude that production would necessarily subvert those processes. The material risk of duplication or interference is an additional consideration against permitting access through a separate compulsory process at this stage.

49    The unresolved privilege claims, the reserved judgment concerning the Search Orders and the risk of duplicating or undermining the existing supervisory process of the Court are therefore additional factors favouring the exercise of the power under r 24.15 to set the Subpoena aside.

Amendment of the Subpoena

50    The Applicants informally seek leave to issue the amended subpoena annexed to the affidavit of Mr Husseini. The proposed amendment would reduce the time period from two years to six months, confine production to electronic communications and require those communications to refer to Lloyds Curry Shop. Those changes would narrow the request but would not alter the character in which the material is held, remove the need for processing, searching and privilege review, or avoid interference with the unresolved Search Order and privilege processes. Leave will therefore be refused.

Alternative orders

51    Bridges and the Independent Lawyers alternatively seek leave and declaratory relief permitting the Independent Lawyers and the Independent Computer Experts to provide material to Bridges for production under the Subpoena. That relief would facilitate production but would not overcome the matters which require the Subpoena to be set aside, including the character in which the material is held, the burden of compliance and the unresolved privilege and Search Orders processes. The alternative orders will therefore be refused.

Costs

52    Bridges and the Independent Lawyers seek their costs of the application filed on 23 April 2026. Neither the application nor their submissions seek indemnity costs or an order against the Liquidator personally. I therefore understand them to seek an ordinary costs order against the Applicants.

53    They have succeeded in obtaining the principal relief sought. The application was reasonably brought to resolve whether Bridges and the Independent Lawyers could comply with the Subpoena consistently with the obligations imposed on the Independent Lawyers by the Search Orders. The Applicants will therefore pay their costs of that application on the ordinary basis.

54    Accolade Advisory and Mr Duardo have also succeeded and are entitled to their costs of the application filed on 9 June 2026. They seek an order that the Liquidator pay those costs personally on an indemnity basis, with the costs assessed forthwith.

55    I am not satisfied that such a costs order is warranted. The Applicants’ opposition to the applications was unsuccessful, but the materials do not establish bad faith, improper purpose, unreasonable persistence in a position known to be untenable, or other conduct sufficient to justify either personal liability or indemnity costs. Nor was a developed submission advanced in support of those orders. No sufficient reason was identified for requiring the costs to be assessed forthwith and paid upon assessment. Accolade Advisory and Mr Duardo will therefore have their costs of the application on the ordinary basis.

56    The Applicants will therefore be ordered to pay the costs of the moving parties on each interlocutory application on the ordinary basis, as agreed or assessed. Any issue concerning overlap between the costs reasonably incurred on the two applications may be addressed on assessment.

CONCLUSION

57    The Subpoena will be set aside. The Applicants will pay the costs of each interlocutory application on the ordinary basis, as agreed or assessed.

Associate:

Dated:    25 August 2026

SCHEDULE OF PARTIES