Britten v eBroker.com.au Pty Ltd - Costs on Indemnity Basis

Original Word Document (85.6 KB) Federal Court of Australia

Britten v eBroker.com.au Pty Ltd [2026] FCA 369

| File number: | SAD 22 of 2026 |
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| Judgment of: | MCDONALD J |
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| Date of judgment: | 25 March 2026 |
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| Date of publication of reasons: | 27 March 2026 |
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| Catchwords: | COSTS – where applicants filed interlocutory application seeking interlocutory relief to prevent enforcement action against property – where respondents filed affidavit in response to interlocutory application – where second applicant failed to inform respondents that interlocutory application was not to be pursued – where second applicant claimed to have informed respondents by email – where applicants ordered to pay respondents’ costs of interlocutory application – whether costs should be awarded on party-party or indemnity basis – costs awarded on indemnity basis |
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| Cases cited: | Britten v Dynamic Business Enterprises Pty Ltd [2026] SASC 2 |
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| Division: | General Division |
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| Registry: | South Australia |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |
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| Number of paragraphs: | 38 |
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| Date of hearing: | 25 March 2026 |
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| Counsel for the First Applicant: | The First Applicant did not appear |
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| Counsel for the Second Applicant: | Ms C J Britten |
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| Counsel for the First Respondent: | Mr R A Wood |
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| Solicitor for the First Respondent: | Gilchrist Connell |
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| Counsel for the Second, Third and Fourth Respondents: | Mr S A Evans SC |
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| Solicitor for the Second, Third and Fourth Respondents: | Summer Lawyers |
ORDERS

| | | SAD 22 of 2026 |
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| BETWEEN: | DAVID JOHN BRITTEN

First Applicant

CATHY JAYNE BRITTEN

Second Applicant | |
| AND: | EBROKER.COM.AU PTY LTD (ACN 606 329 800)

First Respondent

FIRST CASH FLOW SOLUTIONS PTY LTD (ACN 624 595 964)

Second Respondent

DYNAMIC BUSINESS ENTERPRISES PTY LTD (ACN 129 274 620) (and another named in the Schedule)

Third Respondent | |

| order made by: | MCDONALD J |
| DATE OF ORDER: | 25 MARCH 2026 |
THE COURT ORDERS THAT:

1. The applicants pay the respondents’ costs of the interlocutory application filed on 2 February 2026 on an indemnity basis.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1 In 2024, the second respondent, First Cash Flow Solutions Pty Ltd (FCFS), advanced a business loan to CJDJ Pty Ltd (CJDJ), a company which carried on a business under the name “Soakhouse Adelaide”. The first applicant, David John Britten, was the sole shareholder of CJDJ, and the second applicant, Cathy Jayne Britten, was its sole director. The loan to CJDJ was guaranteed by both Mr Britten and Ms Britten. It was secured by a registered mortgage over residential property in Mount Jagged, South Australia, which was owned by Mr Britten (Property). The Property was the residence of Mr Britten and Ms Britten.

2 The loan was subsequently refinanced by the third respondent, Dynamic Business Enterprises Pty Ltd (Dynamic), which was substituted for FCFS as the lender and as the mortgagor of the Property. The applicants claim that they were put in contact with FCFS by the first respondent, eBroker.com.au Pty Ltd (e B roker.com.au). The fourth respondent, Matthew David Blackburn, is and was a director of Dynamic.

3 By an originating application lodged for filing in this Court on 28 January 2026, and accepted for filing on 2 February 2026, the applicants seek to advance claims which include that the conduct of the respondents in connection with “the origination, brok[er]ing, structuring administration and enforcement” of the loan advanced to CJDJ. The final relief sought in the originating application includes an order “setting aside, restraining or permanently enjoining enforcement action taken or threatened against [the Property], pending determination of the legality of the credit arrangements”.

4 The applicants also filed an interlocutory application, seeking urgent interlocutory relief, including an order staying any enforcement action against the Property. The interlocutory application was also lodged for filing on 28 January 2026 and accepted for filing on 2 February 2026.

5 The interlocutory application seeks to restrain enforcement action arising from proceedings previously instituted by Dynamic against Mr Britten in the Supreme Court of South Australia. An order for possession of the Property was made by the Supreme Court on 23 July 2025. An application by Mr Britten to set aside the order for possession was dismissed on 19 September 2025. An application by Mr Britten for a stay of the order for possession was dismissed on 4 November 2025. A further application to set aside the order for possession was dismissed on 22 December 2025. On 20 January 2026, an appeal by Mr Britten against the refusal of the stay and an application for an extension of time and leave to appeal against the order for possession were both dismissed: Britten v Dynamic Business Enterprises Pty Ltd [2026] SASC 2.

6 At the first case management hearing in the present proceedings, on 18 February 2026, Mr Britten did not appear. Ms Britten appeared in person. She indicated that the interlocutory application was not to be pursued, and I made orders dismissing it with costs. The question of whether the applicants should pay the respondents’ costs of the interlocutory application on a party-party basis or on an indemnity basis was reserved.

7 On 25 March 2026, at the second case management hearing, again Mr Britten did not appear, and Ms Britten appeared in person. After hearing from Ms Britten, I made an order that the applicants pay the respondents’ costs of the interlocutory application on an indemnity basis. These are my reasons for making that order.

The abandonment of the applicants’ interlocutory application at the first case management hearing

8 In response to the interlocutory application, on 17 February 2026, ahead of the first case management hearing, FCFS, Dynamic and Mr Blackburn (who are commonly represented) filed detailed affidavit evidence, including evidence about the history of the proceedings in the Supreme Court. It was reasonable for them to do so because it was reasonable to anticipate that, if the interlocutory application was to be heard and determined, it would be listed for hearing relatively expeditiously.

9 In advance of the first case management hearing, the respondents provided proposed minutes of order providing for a hearing of the interlocutory application on a date soon after the first case management hearing. It was thus clear that they were proceeding on the basis that the interlocutory application was being pursued and would need to be determined expeditiously. The applicants did not respond by informing the respondents that the interlocutory application was no longer pursued. Nor did they inform the Court of that fact.

10 At the first case management hearing on 18 February 2026, Ms Britten informed the Court for the first time that the application for interlocutory relief was no longer to be pursued. She claimed that that was because the applicants had taken certain action which rendered the interlocutory relief unnecessary, namely that they had sold the Property, had moved out of the Property, and had issued a licence or lease to the prospective purchasers to occupy the Property.

11 I note that FCFS, Dynamic and Mr Blackburn made it clear at the first case management hearing that they did not accept that anything the applicants might have done prevented Dynamic from taking enforcement action in relation to the Property.

12 When Ms Britten first told the Court that the interlocutory application was no longer to be pursued, I suggested that, in that case, I should dismiss the application for interlocutory relief. Ms Britten agreed that “that would be easier” and stated that she was “in [the Court’s] hands”.

13 Ms Britten asserted that the interlocutory application was “no longer necessary”. I then asked her, “Have you informed the respondents before this morning that the interlocutory application wasn’t to be pursued?” Ms Britten replied, “I haven’t, no.” She went on to say, “But I have – there has been a lot of correspondence to the applicants about the stay proceedings and I have also advised them that we have moved, I’ve also advised them that we have sold the property.” Ms Britten had more to say, but that is the only part of the exchange that is relevant to the present issue.

14 Later in the course of the first case management hearing, the respondents indicated that they would seek an order that the applicants pay the respondents’ costs of the application for interlocutory relief, on an indemnity basis. Counsel for FCFS, Dynamic and Mr Blackburn informed the Court that there had been no indication, prior to the first case management hearing, that the interlocutory application would not be pursued.

15 After that, Ms Britten addressed the question of the basis on which costs should be awarded. She said, “As to say that they weren’t aware that I was dropping the interlocutory, whilst that might not have been done formally, is again, embarrassing.” She referred to correspondence with the respondents that she described as “advis[ing] them on multiple occasions that we weren’t living there any more, that we weren’t pressing upon that”.

16 Ms Britten confirmed that she and Mr Britten had moved out of the Property on or around 1 February 2026. That was the event that she said had caused her to decide not to pursue the interlocutory application. I then asked why the Court should not order that the costs that have been incurred since that date by the respondents be paid on an indemnity basis, since Ms Britten was not planning to pursue the interlocutory application, but had not informed the respondents of that fact. Ms Britten then responded that she had informed the respondents. That appeared inconsistent with what she had said earlier.

17 I asked Ms Britten to clarify whether she was saying that the respondents knew she had moved out of the Property, rather than that she told them the interlocutory application would not be pursued. Ms Britten responded:

No. I said we won’t be pursuing anything as far as staying of warrant of any sheriffs. And I told the sheriff’s office at the Supreme Court as well that we wouldn’t be pursuing anything. So, yes, I advised them. I can provide you all the correspondence that I have provided. They absolutely knew that, and I’ve got read receipts of that as well. …

18 At the end of the first case management hearing on 18 February 2026, I made an order that the applicants pay the respondents’ costs of the interlocutory application, and an order reserving the question of whether those costs should be paid on a party-party basis or on an indemnity basis. I made a further order allowing the applicants to file and serve “any affidavit material, limited to annexing any communications between the applicants and the respondents that demonstrate that the respondents were on notice that the interlocutory application filed on 2 February 2026 would not be pursued”.

The evidence filed by Ms Britten

19 On 11 March 2026, Ms Britten filed an affidavit. It was not limited to annexing communications between the applicants and the respondents, as required by the orders made on 18 February 2026. Nevertheless, I have had regard to the whole of the affidavit. The annexures to the affidavit comprise the text of three emails which Ms Britten deposes to having sent. Unfortunately, an effect of the way they have been reproduced is that they do not identify the email addresses to which they were sent, but instead identify the addressees using one-word names.

20 The first email was sent on 26 January 2026 at 3.45pm. It was sent to “Amal”, “Matthew”, “Cassandra”, “Bianca”, “print”, “Credit”, “David” and “Dynamic”. Ms Britten deposes that it was sent to Amal Maharaj and Mr Blackburn, whom Ms Britten identifies as directors of one or more of the respondents, and that it was copied to their solicitors. I proceed on that basis.

21 The first email is lengthy, and it is not in all respects easy to follow. However, most relevantly, it includes the following:

Accordingly, we have granted the intended purchasers a licence to occupy the property pursuant to a lease-to-purchase arrangement. This step was necessary and proportionate. It permits lawful occupation, protects the position of our family, and preserves the status quo while substantive legal proceedings are progressed.

The licence operates as a lease against the property. The occupants have been granted full rights of occupation and use of the land and improvements in accordance with the agreement and applicable law. This arrangement has been entered into transparently and for legitimate protective purposes.

This structure enables us to pursue, without further escalation of possession risk, the legal actions already foreshadowed, including claims for costs and damages, proceedings to set aside the mortgage, and ongoing regulatory complaints with ASIC and AFCA. Any attempt to force possession in the interim would only aggravate loss and prejudice, and would further support claims presently under consideration.

For the avoidance of doubt, we continue to assert our position in full. The existing judgment and possession orders are being challenged as a matter of procedure, and all rights are expressly reserved. The Sheriff will be advised accordingly.

You are also put on notice that if we are not in occupation, you are not entitled to take possession or install another tenant in place of the current occupants. Alternative accommodation has been secured, and further notification will occur through court processes in due course.

Nothing in this letter constitutes a waiver of any rights, claims, or remedies, all of which are expressly reserved.

22 The email was sent from Ms Britten’s email address and was signed off by her in the names of both Ms Britten and Mr Britten.

23 I make the following observations about the first email. First, it is clear enough that Ms Britten was stating that she and/or Mr Britten had granted a licence or lease over the Property to prospective purchasers of the Property, and had apparently done so in the belief that this would prevent Dynamic from taking enforcement action against the Property, and for the purpose of frustrating Dynamic’s attempts to take such action.

24 Secondly, at the time when the first email was sent, the interlocutory application had not yet been filed or served on the respondents; it would not be lodged for filing until 28 January 2026, or accepted for filing until 2 February 2026.

25 Thirdly, the fact that the applicants would no longer be in occupation of the Property was advanced as a basis for an assertion that Dynamic would not be legally entitled to take possession, which was the very thing it had been attempting to do, and was in substance what the applicants sought to restrain by the orders in the interlocutory application.

26 Fourthly, the email repeatedly expressly reserved all rights and remedies. The email of 26 January 2026 was thus consistent with the applicants continuing to assert that they had a legal basis to resist any action that Dynamic might take to obtain possession of the Property. The email was not consistent with any suggestion that the applicants had decided not to pursue an interlocutory application to prevent such action.

27 The fact that Ms Britten was asserting that the action which she and/or Mr Britten had taken would prevent Dynamic from being able to take possession of the Property could not sensibly have been understood as suggesting that the interlocutory application, by which they were seeking to prevent Dynamic from taking enforcement action with respect to the Property, would not be pursued. The rights Ms Britten repeatedly asserted in the first email were the same rights that the interlocutory application sought to vindicate. Viewed objectively, Ms Britten’s professed belief that she and Mr Britten had successfully strengthened their legal position and placed possession of the Property beyond the reach of Dynamic was more consistent with their pursuit of the interlocutory application (although it had not yet been filed or served) than with its abandonment.

28 The second email from Ms Britten was sent on 28 January 2026 at 11.51am. The originating application and interlocutory application were lodged for filing later on the same day, at 2.57pm. The second email was addressed to “Cassandra”, “Bianca”, “David”, “Amal”, “Matthew” and “print”.

29 As reproduced in text form in Ms Britten’s affidavit, the content of the second email reads as follows:

Dear Parties,

Please be advised that further action is being lodged in the original proceeding, arising from new and material matters that have come to light. These matters include, but are not limited to, the following:

Service defects in relation to the Remedy to Default, including failure to properly address service following written notification of a change of address, and associated correspondence confirming same.

Credit licensing issues concerning Mr Matthew Blackburn, including matters now raised with relevant regulators.

Unconscionable conduct, including but not limited to representations and conduct arising from the initial Zoom conference and subsequent dealings.

Conflicts of interest and conduct issues involving Mr Paul Nathan Reese, including:

Kingston & Partners as originating solicitors; and

Enforcement steps subsequently pursued through Summer Lawyers.

Please also take notice of the Directions Hearing listed in the above matter, including the date and service requirements applicable to all parties.

In the present circumstances - including:

the existence of lease arrangements,

the progression of a further appeal,

ongoing Federal Court proceedings, and

active regulatory involvement,

any stay of proceedings would be wholly inappropriate and unlawful, particularly given that you have already been notified of the licence to occupy arrangements involving alternative tenants and their respective interests.

Updated details for service will be formally notified through the Court process.

Finally, it is my understanding that Mr David John Britten remains open to without-prejudice discussions, conducted directly. However, time is now of the essence, and any engagement must occur promptly. Mr Britten may be contacted directly should you wish to pursue that course.

All rights are expressly reserved.

Yours faithfully,

Cathy Jayne Britten

One attachment

• Scanned by Gmail

30 The “One attachment” is neither identified in nor annexed to Ms Britten’s affidavit.

31 It is not clear what the paragraph of the email commencing “any stay of proceedings would be wholly inappropriate and unlawful” means, but it cannot sensibly be read as suggesting that the applicants would not be pursuing the interlocutory application, for several reasons. First, the apparent purpose of that paragraph was to assert the applicants’ rights. Secondly, the email expressly reserved “all rights”, which is inconsistent with the abandonment of any application for interlocutory relief. Thirdly, and most importantly, the interlocutory application was not lodged for filing until after the second email was sent. It would make no sense for the applicants to file and serve an interlocutory application that they had already decided not to pursue. Even if the second email could somehow have been construed as suggesting that interlocutory relief would not be sought, the subsequent filing and service of the interlocutory application was inconsistent with any such suggestion.

32 It is apparent from the content of both the first and second emails that the applicants had already determined to move out of the Property before the interlocutory application was lodged for filing. According to Ms Britten, they moved out of the Property on the weekend that included 1 February 2026, after the originating application and interlocutory application were lodged for filing but before they were accepted for filing. The lodging of the interlocutory application for filing is impossible to reconcile with Ms Britten’s position that it should have been clear to the respondents that the interlocutory application was not being pursued once the applicants were no longer in occupation of the Property.

33 The third email from Ms Britten was sent on 29 January 2026. It was sent to persons identified as “sheriffsoffice”, “sheriff”, “CAA:PM”, “courtsa” and “print”, and its opening words indicate that it was addressed to “Office of the Sheriff[,] Courts Administration Authority of South Australia”. All of the intended recipients of the third email appear to be connected with the South Australian Courts Administration Authority. There is nothing in Ms Britten’s affidavit to suggest that the email was sent to anyone associated with any of the respondents. Although Ms Britten submitted at one point that the respondents had been copied into the third email, there is no evidence to support that assertion and I find that the email was not sent to anyone associated with any of the respondents.

34 In any event, the third email included the following statement:

Purpose of this notice

This letter is not intended to argue the merits of the underlying dispute with the Office of the Sheriff.

It is provided to ensure the Sheriff is aware that:

a.    the enforceability of the judgment and related instruments is not settled;

b.    interlocutory relief has been sought and remains pending;

c.    related Federal Court proceedings are on foot;

d.    regulatory and oversight processes are engaged; and

e.    third-party occupation interests exist in respect of the property.

35 The evident purpose of the third email was to deter the Sheriff and staff of the Sherrif’s Office from taking enforcement action with respect to the Property, including in reliance on assertions that “interlocutory relief ha[d] been sought and remain[ed] pending” and that proceedings in the Federal Court were allegedly “on foot”. In the context of the email as a whole, the reference to “interlocutory relief” being sought would have been understood as a reference to an interlocutory application filed in the Supreme Court. The third email made no express reference to the interlocutory application lodged for filing in this Court (which had, at that time, not yet been accepted for filing). Nothing that was said in the third email was apt to suggest that the interlocutory application filed in this Court would not be pursued.

Conclusions

36 Ms Britten submits that the correspondence referred to above was consistent with her position that the interlocutory application was “no longer required in the circumstances”. However, the email correspondence on which she relies did not state that the interlocutory application would not be pursued. Further, the interlocutory application was lodged for filing at a point in time when Ms Britten already knew that the applicants’ move out of the Property was imminent. The interlocutory application cannot have been served on the respondents until after the applicants had already moved out of the Property.

37 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 in the interlocutory application. The respondents acted entirely reasonably in preparing to meet the interlocutory application on the basis that it may need to be heard and determined with some urgency, and in filing responsive affidavit material. Ms Britten’s attempt to recast emails that pre-dated the service of the interlocutory application, as well as an email that was not even sent to the respondents, as somehow putting the respondents on notice that the interlocutory application would not be pursued, must be rejected.

38 In the circumstances, I was satisfied that it was appropriate to order that the applicants pay the respondents’ costs of the interlocutory application on an indemnity basis.

| I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. |
Associate:

Dated: 27 March 2026

SCHEDULE OF PARTIES

| | SAD 22 of 2026 |
| Respondents | |
| Fourth Respondent: | MATTHEW DAVID BLACKBURN |
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