Britten v eBroker.com.au Pty Ltd

This dispute grew out of a business finance arrangement tied closely to personal risk. In 2024, First Cash Flow Solutions Pty Ltd advanced a business loan to CJDJ Pty Ltd, which traded as Soakhouse Adelaide. Mr Britten was the company's sole shareholder and Ms Britten its sole director. Both guaranteed the loan personally. The security included a registered mortgage over residential property at Mount Jagged in South Australia owned by Mr Britten, and that property was also the applicants' home.

The loan was later refinanced by Dynamic Business Enterprises Pty Ltd, which became the lender and mortgagee. The applicants said they had been introduced to the original lender by eBroker.com.au Pty Ltd. By early 2026, the dispute had moved well beyond ordinary commercial disagreement and into active enforcement and court proceedings.

The Federal Court proceeding was not the first litigation about the property. Dynamic had already obtained a possession order in the Supreme Court of South Australia on 23 July 2025. The judgment records a series of unsuccessful attempts by Mr Britten to undo or delay that result, including applications to set aside the possession order, an application for a stay, and an appeal outcome in January 2026. That background matters because the urgent Federal Court application was aimed at stopping enforcement action in circumstances where related enforcement proceedings were already well advanced elsewhere.

The applicants then lodged a Federal Court originating application and an interlocutory application in late January 2026. The originating application raised claims about the respondents' conduct in connection with the origination, broking, structuring, administration and enforcement of the loan. The interlocutory application sought urgent relief, including a stay of enforcement action against the property.

The Court was not deciding whether the applicants' broader allegations about the finance arrangements were correct. It was dealing with a narrower question about costs. At the first case management hearing on 18 February 2026, Ms Britten told the Court that the interlocutory application would not be pursued. The Court dismissed that application with costs, but reserved the question of whether those costs should be on the usual party-party basis or on an indemnity basis.

That meant the real issue became one of notice and reasonableness. Had the applicants clearly informed the respondents, before the hearing, that the urgent application was no longer being pressed? If they had not, and if the respondents had reasonably spent time and money preparing to meet the urgent application, indemnity costs could be justified.

The judgment shows that the respondents had treated the interlocutory application as live and urgent. On 17 February 2026, ahead of the first case management hearing, FCFS, Dynamic and Mr Blackburn filed detailed affidavit evidence in response. They also provided proposed minutes of order for a hearing of the interlocutory application soon after the first case management hearing. The Court accepted that this was a reasonable response because urgent interlocutory relief often needs to be heard quickly.

The applicants did not tell the respondents, or the Court, before that hearing that the interlocutory application would not be pursued. At the hearing itself, Ms Britten said the application was no longer necessary because the applicants had sold the property, moved out, and granted a licence or lease to prospective purchasers. The Court then had to decide whether earlier communications had nevertheless put the respondents on notice.

The Court examined three emails relied on by Ms Britten. This part of the judgment is the practical core of the case because it shows how courts read communications objectively. The question was not what Ms Britten later said she meant. The question was what the emails actually conveyed to the recipients at the time.

The first email was sent on 26 January 2026. It referred to a licence or lease-to-purchase arrangement with intended purchasers, asserted that this protected the family's position, referred to foreshadowed legal actions and regulatory complaints, and repeatedly reserved rights. The Court accepted that the email clearly asserted a position about resisting possession. But it did not say the Federal Court interlocutory application would not be pursued. It also pre-dated the filing and service of that application.

The second email was sent on 28 January 2026 before the originating application and interlocutory application were lodged for filing later that day. It referred to further action being lodged, service issues, licensing issues, unconscionable conduct, conflicts of interest, lease arrangements, a further appeal, Federal Court proceedings and active regulatory involvement. It also said all rights were expressly reserved. The Court found that this email could not sensibly be read as saying the interlocutory application would not be pursued. In fact, the later filing of the interlocutory application pointed the other way.

The third email was sent on 29 January 2026 to the Office of the Sheriff and the South Australian Courts Administration Authority. The Court found there was no evidence it was sent to anyone associated with the respondents. In any event, it referred to interlocutory relief having been sought and remaining pending. The Court held that nothing in that email suggested the Federal Court interlocutory application would not be pursued.

The Court also paid close attention to timing. According to Ms Britten, the applicants moved out of the property on or around 1 February 2026. But the Court found that the applicants had already determined to move out before the interlocutory application was lodged for filing. That mattered because it undermined the suggestion that the respondents should have understood, from later events, that the urgent application had become unnecessary. The Court considered it impossible to reconcile the filing of the interlocutory application with the argument that it should already have been obvious that it would not be pursued.

Another important point was recipient and clarity. One email was not sent to the respondents at all. The others did not directly state that the interlocutory application would be abandoned. Instead, they continued to assert rights, challenge enforcement and reserve remedies. The Court treated that as inconsistent with clear notice of abandonment.

McDonald J ordered that the applicants pay the respondents' costs of the interlocutory application filed on 2 February 2026 on an indemnity basis. The Court held that the respondents had acted entirely reasonably in preparing to meet the interlocutory application and in filing responsive affidavit material. Given the nature of the relief sought, it was reasonable to anticipate that the application might need to be heard and determined with some urgency.

The Court rejected Ms Britten's attempt to recast the emails as having put the respondents on notice that the interlocutory application would not be pursued. The reasons were concrete. The emails did not state that the application would not be pursued. Some pre-dated service of the interlocutory application. One was not sent to the respondents at all. The language used in the emails repeatedly reserved rights and continued to assert positions aimed at resisting enforcement.

The Court concluded that, in those circumstances, the applicants acted unreasonably in failing to notify the respondents at any time before the first case management hearing that they would not be seeking the interlocutory relief sought. That unreasonable failure caused the respondents to incur unnecessary costs preparing for an urgent application that was then abandoned at the hearing.

The result is important because indemnity costs are not the ordinary default. The Court made that order because the conduct around notice and timing justified a stronger costs response than standard party-party costs.

This case is best read as a practical warning about urgent applications. Filing urgent interlocutory material is not a harmless holding step. It can force the other side to brief lawyers, gather documents, prepare affidavits and reserve hearing time immediately. If your business later decides not to press the application, the Court expects prompt and unmistakable communication.

The judgment also shows that courts separate the underlying commercial grievance from procedural conduct. You may believe strongly that a lender, broker or counterparty has acted wrongly. You may also be pursuing complaints with regulators or ombudsman schemes. But those matters do not excuse unclear communication in live court proceedings. If an urgent application is on foot, the parties and the Court need to know whether it is still being pursued.

For SMEs, the risk is often highest where business debt is backed by personal guarantees and personal property. In those situations, decisions are made under pressure and correspondence can become emotional, defensive or sprawling. This judgment shows that none of that changes the objective test the Court applies. Did you clearly tell the other side that the urgent application was no longer being pursued, before they incurred unnecessary costs? If the answer is no, costs consequences can follow quickly.

There is also a drafting lesson. Communications that reserve all rights, threaten further action, refer to appeals and complaints, or continue to challenge enforcement may be perfectly understandable from a party's perspective. But they are poor substitutes for a direct procedural notice. If you want to stop the costs clock on an urgent application, say so plainly.

Does abandoning an urgent application automatically lead to indemnity costs? Not automatically. But this case shows that indemnity costs can be ordered where the applicant unreasonably fails to give clear notice and the other side reasonably incurs costs preparing to respond.

Is it enough that the other side knew the facts had changed? Not necessarily. The Court focused on whether the respondents were clearly told that the interlocutory application itself would not be pursued. Knowledge of surrounding facts was not enough.

What if I told someone connected to the process, like a sheriff's office? That may not help if the notice was not given to the respondents. In this case, an email to the South Australian Courts Administration Authority did not amount to notice to the respondents.

What is the safest practical step? Send a direct written communication to the other side identifying the application and stating plainly that it will not be pursued, then take the necessary procedural step in Court as soon as possible.

The judgment is a Federal Court costs ruling in Britten v eBroker.com.au Pty Ltd [2026] FCA 369. The order was made on 25 March 2026 and the reasons were published on 27 March 2026. The interlocutory application in question had been lodged for filing on 28 January 2026 and accepted for filing on 2 February 2026.

This page explains the costs decision only. It should not be read as a final determination of the underlying claims about the finance arrangements or enforcement conduct.