Britten v eBroker.com.au Pty Ltd

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 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 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.

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.

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.

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.