Federal Court of Australia

Britten v eBroker.com.au Pty Ltd (No 2) [2026] FCA 1512

ORDERS

THE COURT ORDERS THAT:

1.    The applicants pay:

(a)    the first respondent’s costs of the proceeding, up to and including 14 May 2026 (inclusive of the costs the subject of order 2 of the orders made on 18 February 2026 and order 10 of the orders made on 25 March 2026); and

(b)    the first respondent’s costs of its interlocutory application filed on 5 June 2026,

fixed in the amount of $46,000.

2.    The applicants pay:

(a)    the second, third and fourth respondents’ costs of the proceeding, up to and including 14 May 2026 (inclusive of the costs the subject of order 2 of the orders made on 18 February 2026 and order 10 of the orders made on 25 March 2026); and

(b)    the second, third and fourth respondents’ costs of their interlocutory application filed on 5 June 2026,

fixed in the amount of $82,000.

3.    The applicants be jointly and severally liable for the costs referred to in orders 1 and 2.

4.    The second applicant pay the remainder of the first respondent’s costs of the proceeding, fixed in the amount of $7,000.

5.    The second applicant pay the remainder of the second, third and fourth respondents’ costs of the proceeding, fixed in the amount of $10,000.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The first applicant in this proceeding, David Britten, was the sole shareholder of CJDJ Pty Ltd (CJDJ). The second applicant, Cathy Britten, was its sole director. CJDJ carried on a business called “Soakhouse Adelaide”. In 2024, the first respondent, eBroker.com.au Pty Ltd (eBroker.com.au), put the applicants in contact with the second respondent, First Cash Flow Solutions Pty Ltd (FCFS). FCFS advanced a business loan to CJDJ, which was secured by a registered mortgage over a residential property in Mt Jagged (Property). At that time, Mr Britten and Ms Britten lived at the Property and it was registered in Mr Britten’s name. The loan was later refinanced and the third respondent, Dynamic Business Enterprises Pty Ltd (Dynamic), was substituted for FCFS as the lender and as the mortgagee of the Property. The fourth respondent, Matthew Blackburn, is a director of Dynamic.

2    On 28 January 2026, the applicants lodged for filing an originating application seeking relief against the respondents on various bases, including alleged unconscionable conduct, misleading and deceptive conduct, and failure to comply with the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act). On 14 May 2026, an order was made dismissing the originating application insofar as it was brought by Mr Britten. On 29 May 2026, the remainder of the originating application was dismissed by operation of an order made on 21 May 2026. Both orders were made on the basis of communication from the applicants to the effect that they did not wish to prosecute the proceeding. The circumstances are explained in greater detail below.

3    The second to fourth respondents (Lenders) are commonly represented in the proceeding, and eBroker.com.au, which is not related to the Lenders, is separately represented. By interlocutory applications filed on 5 June 2026 (costs applications), each of the respondents seeks orders that the applicants pay their costs of the proceeding, fixed in a lump sum, and on an indemnity basis.

4    For the reasons that follow, both Mr Britten and Ms Britten should pay the respondents’ costs, on an indemnity basis, except that Mr Britten should not be required to pay the respondents’ costs in the period after 14 May 2026, apart from the costs referable to the costs applications. Mr Britten and Ms Britten should be jointly and severally liable for the costs for which they are both liable.

5    Costs orders should be made on a lump sum basis, taking into account an appropriate reduction to ensure that the lump sum does not exceed the costs that are properly payable by Mr Britten and Ms Britten. The costs of eBroker.com.au for which Mr Britten and Ms Britten are jointly and severally liable should be fixed in the amount of $46,000. The additional costs of eBroker.com.au for which Ms Britten alone is liable should be fixed in the amount of $7,000. The costs of the Lenders for which Mr Britten and Ms Britten are jointly and severally liable should be fixed in the amount of $82,000. The additional costs of the Lenders for which Ms Britten alone is liable should be fixed in the amount of $10,000.

Procedural history of the proceeding

The commencement of the proceeding and the first case management hearing

6    Together with their originating application, the applicants filed an interlocutory application seeking urgent injunctive relief to prevent any enforcement action against the Property (interlocutory injunction application). A first case management hearing was conducted in this proceeding on 18 February 2026. Ms Britten appeared in person and informed the Court that the interlocutory injunction application was not to be pursued. Mr Britten did not appear. I ordered that the interlocutory injunction application be dismissed with costs and reserved the question of whether the applicants should pay the respondents’ costs of the interlocutory injunction application on a party and party or an indemnity basis. Ms Britten indicated on that occasion that she and Mr Britten intended to engage a lawyer to act for them, and later added that the lawyer would be “[p]rimarily for Mr Britten, actually”.

7    At the first case management hearing, I ordered that, by 12 March 2026, the applicants file a statement of claim.

8    On 12 March 2026, Ms Britten filed a statement of claim, which purported to set out the claims of both applicants. The statement of claim comprises 25 pages and 219 unnumbered paragraphs. It contains generalised assertions of contraventions of various statutory provisions by the respondents, without clearly identifying what conduct was said to constitute the contraventions, or which respondent was alleged to have engaged in which conduct. Rather than alleging facts that were capable of amounting to a cause of action against the respondents, the statement of claim instead repeatedly asserts that the proceeding “raises issues” or “raises questions”, and asserts that “the conduct of the Respondents must be examined within the framework of the Commonwealth credit legislation”.

Extensive and inappropriate correspondence with chambers

9    In the course of the proceeding, Ms Britten has sent a large number of emails to my chambers, and several emails to the solicitors for the respondents, copying in my chambers. In several cases, these emails were also copied to other persons who are not parties to the proceeding. In brief summary, between the commencement of the proceeding and the second case management hearing on 25 March 2026, the email correspondence involving Ms Britten included the following:

(1)    On 13 February 2026, Ms Britten copied chambers into a long email addressed to the respondents. An email in reply was sent by my chambers, informing Ms Britten that copying the Court into such correspondence was not appropriate, and referring her to information about appropriate correspondence with chambers. On the same day, Ms Britten responded, apologising, but also (inappropriately) going on to clarify her intention and purporting to put certain things “on the record”.

(2)    On 16 February 2026, ahead of the first case management hearing, Ms Britten (purportedly on behalf of both applicants) sent a long email which attached what purported to be the orders Ms Britten would be seeking (but which in fact attached proposed orders relating to a different proceeding), and set out many dot points, amounting to uninvited substantive submissions. These were arranged in eight sections under separate headings and subheadings, such as “Background and Procedural Context” and “Matters Requiring Determination and Disclosure”.

(3)    Later on 16 February 2026, Ms Britten (purportedly on behalf of both applicants) sent a further long email to chambers which (appropriately) sought leave to appear remotely at the first case management hearing, but otherwise (inappropriately) stated that “The primary purpose of this correspondence is to formally notify the Court and all parties that the issue of whether the loan and mortgage arrangements were subject to the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code is a fundamental matter that must be determined”, and set out many substantive submissions, in 10 sections under separate headings.

(4)    On 17 February 2026, Ms Britten copied my chambers into an email to the respondents (purportedly sent on behalf of both applicants) complaining that she could not access the attachment to an email that had been sent to my chambers by the Lenders and demanding that an affidavit “be resent immediately as a direct email attachment in PDF format”. Also on 17 February 2026, Ms Britten (purportedly on behalf of both applicants) sent to chambers a very large email containing substantive submissions and dot points, arranged in 11 sections under separate headings. Later on 17 February 2026, Ms Britten sent a further email regarding the attachment to the earlier email (which she had now been able to access), including brief substantive submissions about the relevance of the affidavit filed by the solicitor for the Lenders.

(5)    On 17 February 2026, my chambers responded to all of the emails sent by Ms Britten on 16 and 17 February 2026, pointing out that her correspondence was inappropriate, asking her to “refrain from sending emails to chambers other than those which are directly responsive to requests for a response by the Court” and again referring her to the information available on the Court’s website about communicating with chambers. A short time later, Ms Britten sent a verbose email in response, apologising, and advising that Mr Britten was “experiencing a medical situation”, was unable to attend the case management hearing on 18 February 2026, and “has asked that [Ms Britten] speak on his behalf where permitted”.

(6)    Later on 17 February 2026, Ms Britten sent another long email to my chambers, articulating (among many other things) that she did not consent to proposed orders that had been provided by the respondents, and making substantive submissions about the alleged deficiencies in the respondents’ proposed orders, reiterating key points, and stating that she wished to advise the Court and the parties that she expected a solicitor to be appointed in the coming weeks, “and that regulatory engagement is currently underway in relation to the licensing and compliance concerns identified”.

(7)    On 18 February 2026, before the first case management hearing which was to be held later that morning, Ms Britten sent an email to chambers, acknowledging receipt of a paginated version of an affidavit earlier filed by the Lenders, and complaining that she had not “had a reasonable opportunity to fully review or properly digest” the material, and making submissions about its relevance.

(8)    On 18 February 2026, following the first case management hearing, Ms Britten sent a short email to my chambers, seeking access to the transcript “as a self-represented applicant experiencing significant financial hardship”. She did not copy in the respondents’ solicitors. In the response from my chambers, Ms Britten was informed that the transcript could be viewed at the registry, was reminded to copy in all parties to any correspondence with the Court, and was again referred to information available on the Court’s website regarding appropriate communication with chambers. Ms Britten responded to that email, stating that she would inspect the transcript in the registry, and adding:

For completeness, I also note that in prior proceedings in the Supreme Court transcripts were made available for inspection without charge, and I appreciate the Federal Court’s provision for inspection at the registry.

(9)    In a separate email sent on 18 February 2026, Ms Britten asked whether “audio is available”. My chambers responded to the effect that it was not. On 19 February 2026, Ms Britten replied, stating:

Thankyou , is recording permitted in future , apologies for the request but the transcript for us is extremely important . Other than coming in which we are limited could you please let us know how I can get a copy preferably for little cost with fee relief . Is there an external provider for example . Regards Cathy

(10)    On 26 February 2026, Ms Britten sent an email to my chambers, attaching an affidavit affirmed by Mr Britten on 24 February 2026, which stated on its face that it was filed by both applicants. The affidavit referred to five exhibits but none was included in the affidavit or as a separate attachment to the email. In the email, Ms Britten claimed that she had attempted to file the affidavit but was “uncertain whether the upload has been processed correctly”. Ms Britten asked that the affidavit be accepted for filing, or that she “be advised of any procedural step required to regularise filing”. The email was forwarded to the South Australian registry of the Court. A client services officer responded to Ms Britten, advising that the affidavit had not been lodged for filing and that documents should be filed via the Court’s eLodgement portal, and offering to assist with any specific issue Ms Britten might be experiencing using the eLodgement portal. The affidavit of Mr Britten affirmed on 24 February 2026 was not filed and it is not apparent that any further attempt was made to file it.

(11)    On 10 March 2026, Ms Britten sent an email to my chambers, stating that the applicants’ affidavit evidence relevant to the costs of the abandoned interlocutory injunction application had been filed that day, and referring to various other matters. The email attached an unsealed copy of an affidavit of Ms Britten dated 10 March 2026. The affidavit had not, in fact, been filed. Ms Britten’s email was forwarded to the South Australian registry and a client services officer reminded her that documents for filing should not be sent to chambers for filing. On 11 March 2026, Ms Britten filed the affidavit via the Court’s eLodgement portal.

(12)    On 24 March 2026, Ms Britten sent an email setting out proposed orders to be sought at the case management hearing on 25 March 2026, together with brief uninvited submissions in support of the orders. The email expressed that the orders were sought by both applicants. Later on 24 March 2026, in response to proposed orders provided by the Lenders, Ms Britten (purportedly on behalf of herself and Mr Britten) sent a long email making substantial uninvited submissions explaining her opposition to the Lenders’ proposed orders.

The second case management hearing

10    At the next case management hearing, on 25 March 2026, there was again no appearance by Mr Britten. I raised with Ms Britten the fact that Mr Britten had not appeared at either of the case management hearings and that he had not appeared to be taking an active role in the proceeding. Ms Britten again stated that she and Mr Britten would both be engaging a solicitor. I explained to Ms Britten that, ordinarily, she would not be permitted to represent Mr Britten. I further explained that, if Mr Britten did not take an active role in the proceeding, either by appearing at the next hearing or by engaging a lawyer to appear at the next hearing, then it was possible that the originating application, insofar as it was brought by him as the first applicant, may be dismissed due to a failure to prosecute his case or to appear at a hearing.

11    At the case management hearing on 25 March 2026, I also raised the issue of Ms Britten’s standing in the proceeding, given her status as an undischarged bankrupt. I noted that she was the applicant in another proceeding before the Court, action SAD 282 of 2025, in which she sought orders annulling the sequestration order made against her on 13 July 2022.

12    The respondents foreshadowed the filing of interlocutory applications for summary dismissal or to strike out all or part of the statement of claim, and outlined some of the problems with it. Among other things, counsel for the Lenders put Ms Britten on notice that his clients’ position was that Ms Britten had no standing in the proceeding because, by reason of s 58(1) of the Bankruptcy Act 1966 (Cth), her property, including any right of action she might have had against the respondents, had vested in the trustee in bankruptcy. Ms Britten sought an opportunity to file an amended statement of claim.

13    At the case management hearing on 25 March 2026, I made procedural orders in relation to the interlocutory applications foreshadowed by the respondents. Among other things, the orders made on 25 March 2026 included orders that:

1.    The applicants have leave to file an amended statement of claim by 2 April 2026.

2.    By 8 April 2026, the respondents file and serve any interlocutory application for dismissal or summary dismissal of all or part of the proceedings or to strike out all or part of the statement of claim or amended statement of claim, and any further affidavit evidence in support of any such application.

…

4.    By 22 April 2026, the applicants file and serve any affidavits in response to any interlocutory application filed pursuant to order 2 above.

5.    By 6 May 2026, the respondents file and serve any affidavits in reply.

6.    By 8 May 2026, the respondents file and serve written submissions in respect of any application filed pursuant to order 2 above, limited to 10 pages.

7.    By 15 May 2026, the applicants file and serve written submissions in response, limited to 10 pages.

14    At the case management hearing, I also made an order requiring the applicants to pay the respondents’ costs of the interlocutory injunction application on an indemnity basis. On 27 March 2026, I published my reasons for making that costs order: Britten v eBroker.com.au Pty Ltd [2026] FCA 369.

The summary dismissal applications

15    No amended statement of claim was filed by the applicants by 2 April 2026, or at all.

16    On 8 April 2026, eBroker.com.au and the Lenders each filed interlocutory applications seeking summary dismissal of the claims brought by each of the applicants or, in the alternative, orders striking out the applicants’ statement of claim (summary dismissal applications). Both the summary dismissal applications were listed for hearing on 22 May 2026.

17    On 30 April 2026, Ms Britten sent an email (purportedly on behalf of herself and Mr Britten) in response to (and including, in the chain) an email that had been sent to her, but not to the Court, by the solicitor for eBroker.com.au. Ms Britten’s email referenced a “current and active complaint” before the Australian Financial Complaints Authority (AFCA), asserting that “[i]n accordance with applicable regulatory expectations, where such a complaint is on foot, the subject matter is ordinarily held in abeyance pending determination by AFCA”. Ms Britten stated that “[f]or procedural propriety, we have included Chambers in this correspondence”, but (as had previously been explained to her) it was inappropriate to copy the Court into correspondence between the parties.

18    The respondents filed evidence and written submissions in relation to the summary dismissal applications, as contemplated by the orders made on 25 March 2026.

19    No affidavits relevant to the summary dismissal applications were filed by the applicants by 22 April 2026, or at all. On 12 May 2026, Ms Britten sent an email to my chambers, apologising for “not yet submitting any material in relation to the matter” and stating that she was “currently awaiting legal advice and formal instruction regarding representation”, that she had an appointment that day, and that “[s]ubject to being formally represented, the legal representative will attend to the lodging of any required forms and documents”. The email also asserted:

Further, we understand that AFCA wants to be a part of the action and to seek to be joined as a party to the proceedings, particularly having regard to the credit licensing issues raised in the matter, and we are presently awaiting their formal position and filing.

It would be inappropriate for me to include any further information

20    Later on 12 May 2026, my chambers received a lengthy email from Ms Britten which, among other things, acknowledged “that aspects of the matter have not progressed as efficiently as they should have on [her] own behalf”, and sought leave “to file and serve further material presently being prepared” including written submissions, affidavit material, and an amended statement of claim. Ms Britten stated that she “understood that [she] was required to file the relevant material by approximately 7 May 2026”, and advanced a number of explanations for her failure to comply with the Court’s orders. It was asserted that “[t]hose matters will be addressed in evidence in the appropriate Court format” (though I note that they never were). Ms Britten acknowledged that it was “not appropriate that [she] advance substantive submissions within this request for indulgence”, but then proceeded to set out several further paragraphs containing assertions about the allegations made in the proceeding, including quotes from emails between the parties.

21    Additionally, Ms Britten suggested that the Court might consider an adjournment of the interlocutory hearing listed on 22 May 2026 to be appropriate, though she acknowledged that a formal application would need to be made by her before any such adjournment could occur, and requested that the matter be listed for case management hearing on a date after she had filed the further material.

22    The next day, the following correspondence was sent from my chambers to all parties to the proceeding:

Justice McDonald has considered the content of the below correspondence.

Ms Britten’s statement that she was required to file relevant “material” by “approximately 7 May 2026” seriously misrepresents the situation.

1.    The orders made on 25 March 2026 (which are attached again for ease of reference) required that the applicants file any amended statement of claim by 2 April 2026. That date was fixed at the request of Ms Britten. The respondents then filed their respective interlocutory applications, and affidavit evidence in support, substantially in accordance with the orders made on 25 March 2026, in reliance on the fact that no amended statement of claim had been filed by the applicants (and no explanation had been provided, and no extension of time had been sought or allowed), and on the basis that the interlocutory applications were to be determined by reference to the existing statement of claim filed on 12 March 2026.

2.    The orders made on 25 March 2026 further required that the applicants file any affidavit evidence in response to the respondents’ interlocutory applications by 22 April 2026. The applicants filed no evidence in accordance with this order. Consequently, the respondents filed no evidence in reply, and the respondents filed written submissions on the basis that the evidence filed in accordance with the orders of 25 March 2026 was the evidence that was before the Court for the purpose of the respondents’ interlocutory applications.

Ms Britten’s email indicates that she now seeks to file an amended statement of claim and affidavit evidence on or before 15 May 2026. This amounts to a request of an extension of time of 43 days for the filing of the amended statement of claim and an extension of 23 days for the filing of affidavit evidence, in circumstances where other steps have already been taken by the respondents in reliance on the fact that no amended statement of claim or affidavit evidence have been filed by the applicants. In support of this request, Ms Britten has made assertions unsupported by any evidence, by way of email to chambers.

The respondents, acting in reliance on, and in compliance with, the timetable fixed on 25 March 2026, have undertaken work and incurred expense which will be wasted if Ms Britten is now permitted to file an amended statement of claim and affidavit evidence. The filing of an amended statement of claim and further evidence by Ms Britten (or by both of the applicants) will result in a need for the respondents to have an opportunity to amend their interlocutory applications, if necessary, and to file further evidence in response.

In all the circumstances, Justice McDonald considers that there are two possible courses that can now be taken in the proceedings. Ms Britten is invited to elect between these two courses.

First, his Honour is prepared to make orders to the following effect, which would allow the applicants the opportunity to file an amended statement of claim and evidence in connection with the respondents’ interlocutory applications, as well as ensuring, so far as possible, that the respondents are not prejudiced by the late change in the pleadings and evidence before the Court.

1.    The interlocutory hearing listed on 22 May 2026 be vacated.

2.    Order 7 of the orders made on 25 March 2026 be vacated.

3.    By 25 May 2026, the applicants file:

a.    any amended statement of claim; and

b.    any affidavit evidence in response to the interlocutory applications filed by the respondents on 8 April 2026.

4.    By 12 June 2026, the respondents file:

a.    any further affidavit evidence arising from the amended statement of claim or the affidavit evidence filed by the applicants in accordance with order 3 above, on which they intend to rely in connection with their respective interlocutory applications; and

b.    supplementary or replacement written submissions in support of their respective interlocutory applications.

5.    By 26 June 2026, the applicants file written submissions in response to the respondents’ interlocutory applications.

6.    The interlocutory applications filed by the respondents on 8 April 2026 be listed for hearing on a date to be fixed after 30 June 2026.

7.    The second applicant pay the respondents’ costs thrown away as a result of the vacation of the interlocutory hearing on 22 May 2026, the filing of the amended statement of claim, and the filing of any affidavit evidence in accordance with order 3 above, on an indemnity basis.

The timetable for the filing of documents by the applicants is deliberately generous, so as to accommodate any further unforeseen personal circumstances. It should be understood that no further extension or adjournment is likely to be granted, and the Court may not have regard to any pleading, evidence or written submission that is not filed in accordance with the revised timetable.

Alternatively, the hearing of the respondents’ interlocutory applications will proceed as listed on 22 May 2026, on the basis of the statement of claim filed on 12 March 2026 and the affidavit evidence filed by the respondents on 6 May 2026, only. The applicants would remain at liberty to file written submissions in respect of the respondents’ interlocutory applications by 15 May 2026 (addressed to the pleading and evidence that is before the Court), in accordance with the orders made on 25 March 2026.

Would Ms Britten please advise as soon as practicable, and in any event by 4.00pm on 14 May 2026, whether she would prefer that the Court make orders to the effect set out above, or whether she would prefer the interlocutory hearing to proceed on 22 May 2026 on the basis of the statement of claim and evidence that is before the Court? Please note that Ms Britten’s email response should be limited to answering that question, and no further explanation or elaboration is to be provided.

We note that Mr Britten has not taken any active role in the proceedings to date. Should he wish to express a position in relation to the above, he should do so by return email as soon as practicable, and in any event by 4.00pm on 14 May 2026.

23    In the afternoon of 13 May 2026, my chambers received a further email from Ms Britten, indicating that she “would seek to accept the first course proposed by his Honour, including the revised timetable for the filing of material” but did not “agree to the proposed costs position”.

24    On 14 May 2026, my chambers received correspondence from Mr Britten for the first time since the proceeding was commenced. The email read as follows:

Dear Court

Yes, I wish to express a position , and it is as follows ;

You are right, I have taken no active steps at all in this matter

I am the victim here. i have been subjected to the most gross misconduct by the lenders and their lawyers

My wife has worked through rain hail, and shine often throughout the night and throughout the worst of times

She has put her faith in the court system and learned laws acts, sections and processes

To most people its like another language and certainly not normal

Thank goodness for AFCA who will make themselves known in the supreme court

She has fought for her name, and for us and the “ truth ” and I saw with my own eyes how she was abused over and over again by her ex partner who caused all of this

The court has , in effect, become his enabler as he planned

She had no idea of any bankruptcy proceedings and has been failed by the system time and time again

They are effectively trying to steal my house in broad daylight and the court is letting them

You may as well hand them the keys

I have watched the spectacle of the court unfold

It costs us our business, our home and almost our lives

We have done nothing wrong

I disagree with her faith that these people will be bought to account and that the court will help

That the court will hold them accountable for breaking the law

I had only wanted to be involved if she could present for me . we have been told that wont be allowed

But it seems perfectly clear that our voice doesn’t matter, that the truth doesn’t matter

So I don’t want to be involved at all, not then not now, not ever

Do not put any costs payable to me

Apart from this email, I am NOT Involved

Do not email me further or Include me in anything

In plain language I hope i have made myself clear

I have no faith in justice throughout the court

and will not waste my time or go through a lawyer who will only leech of of the same system

David

25    Following receipt of the email from Mr Britten, I made orders in chambers on 14 May 2026 dismissing the originating application insofar as it was brought by Mr Britten, pursuant to rr 1.40 and 5.23 of the Federal Court Rules 2011 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and reserving the question of whether Mr Britten should be ordered to pay any part of the costs of the proceeding. I was satisfied that it was appropriate to exercise the power to dismiss the proceeding, insofar as it was brought by Mr Britten, on the Court’s own initiative because I was satisfied that Mr Britten:

(a)    had taken no steps personally to prosecute the proceeding;

(b)    did not wish to further participate in the proceeding and had no intention of prosecuting the proceeding; and

(c)    had failed “to prosecute … the proceeding with due diligence” and was, therefore, “in default” as defined in r 5.22 of the Federal Court Rules.

26    In response to an email sent by my chambers to the parties attaching the orders of 14 May 2026, Mr Britten sent the following:

Thanks now for god’s sake do the right thing by my wife . she’s suffered enough , these clowns have harassed and bullied her for years now just because she’s smarter than all of them put together . Don’t make her pay for their deceptive conduct . the ex is now in gaol and for the people that have done her wrong leave us alone .

27    On 18 May 2026, Ms Britten sent an email to chambers and the South Australian registry, attaching a document styled as “List of Authorities”. The document was not lodged for filing by Ms Britten, but the registry lodged it for filing on her behalf. It was not a traditional list of authorities. Rather, it consisted of 27 pages of substantive written submissions, addressing various authorities and legislative provisions.

28    Also on 18 May 2026, Ms Britten sent an email to my chambers and the South Australian Registry, attaching written submissions in relation to the summary dismissal applications. The written submissions were not lodged for filing by Ms Britten but the registry lodged them for filing on her behalf. They run to 37 pages and more than 280 paragraphs of densely packed text. The written submissions state that they were prepared by Ms Britten but purport to advance submissions on behalf of both applicants.

29    On 20 May 2026, I delivered judgment dismissing Ms Britten’s application for the annulment of her bankruptcy in action SAD 282 of 2025: Britten v Grant; Re Britten [2026] FCA 625 (Britten v Grant). After the publication of my reasons for judgment in that proceeding, correspondence was sent by my chambers to the parties and practitioners in this proceeding, attaching those reasons for judgment. The body of the email was as follows:

As discussed at the case management hearing in the above matter on 25 March 2026, the fact that Ms Britten is a bankrupt may affect Ms Britten’s right to bring this proceeding. The order that has been made in action SAD 282 of 2025 this morning, dismissing Ms Britten’s application to annul the sequestration order made against her in 2022, has the effect that Ms Britten remains a bankrupt.

Justice McDonald notes that Ms Britten has foreshadowed an application for an adjournment of the interlocutory hearing on 22 May 2026, although no interlocutory application for an adjournment has been filed.

Given that the application brought by [Ms] Britten in action SAD 282 of 2025 has been dismissed, the question of whether Ms Britten’s bankruptcy precludes her from bringing or continuing with the present proceeding appears to be a threshold issue which, if determined against Ms Britten, may dispose of the respondents’ interlocutory applications and the proceeding. Moreover, if the consequence of Ms Britten’s being a bankrupt is that she does not have standing in the present proceeding, it may be inefficient, or inappropriate, to proceed to hear submissions in relation to the other issues that arise on the respondents’ interlocutory applications.

In the circumstances, Justice McDonald is minded to proceed with the interlocutory hearing listed in this matter on 22 May 2026, but to hear from Ms Britten and the respondents only on the question of whether Ms Britten has standing to bring the application the subject of this proceeding. On 22 May 2026, the parties need only come prepared to make submissions about the effect of Ms Britten’s bankruptcy on Ms Britten’s standing and on the respondents’ interlocutory applications filed on 8 May 2026 [sic: 8 April 2026].

Depending on his Honour’s decision in respect of that question, the substantive issues on Ms Britten’s originating application filed on 28 January 2026 may need to be listed for hearing at a later date, and further consideration can then be given to whether the parties should be given any further opportunity to file evidence relevant to those substantive issues.

30    Later that day, Ms Britten sent an email to my chambers and the respondents’ solicitors, saying (relevantly) that:

Given the broader circumstances and the number of matters presently existing between the parties, I do not wish to further argue the threshold standing issues identified by the Court. Accordingly, I elect to discontinue this proceeding in its entirety and will file the appropriate forms to give effect to that course.

For clarity, this decision is not made on the merits of the substantive issues raised in the proceeding, but rather arises from personal considerations and concerns as to the costs and resources associated with continuing the matter. Further involvement with AFCA is also ongoing, and I trust that those matters will be more appropriately identified and addressed through that process.

In light of the above, I respectfully request that the interlocutory hearing presently listed for Friday, 22 May 2026, be vacated.

31    On 21 May 2026, I made the following orders:

1.    The interlocutory hearing listed on 22 May 2026 be vacated.

2.    By 29 May 2026, the second applicant file a notice of discontinuance.

3.    Pursuant to r 5.21 of the Federal Court Rules 2011 (Cth), if a notice of discontinuance is not filed by 29 May 2026 in accordance with order 2 above, the originating application filed on 28 January 2026 be dismissed by force of this order.

4.    The parties have liberty to apply, by 5 June 2026, for any order in relation to the costs of the proceeding.

32    Ms Britten did not file a notice of discontinuance (or any other documentation) as she had foreshadowed in her email to the Court of 20 May 2026, and as was required by order 2 of the orders made on 21 May 2026. Consequently, on 29 May 2026, order 3 operated with the effect that the originating application was dismissed with effect from that date.

The costs applications

33    On 5 June 2026, eBroker.com.au and the Lenders filed the costs applications. Each of the respondents seeks an order that Mr Britten and Ms Britten, jointly and severally, pay their costs of the proceeding on an indemnity basis. The first respondent seeks an order that costs be awarded in a lump sum of $68,035.28 instead of being taxed, while the Lenders seek an order that costs be awarded in the sum of $114,770.60 instead of being taxed.

34    Following the filing of the costs applications by the respondents, my chambers received a number of emails from Ms Britten as well as two further emails from Mr Britten. The emails from Ms Britten are prolix, contain submissions and make assertions that have not been supported by evidence. The assertions made by Ms Britten in correspondence sent to my chambers (or into which my chambers were copied) include the following:

(1)    “The application was withdrawn for multiple reasons. Among those reasons were concerns regarding credit licences and related matters that were not disclosed, together with issues that have since become the subject of ongoing complaints and investigations.”

(2)    “AFCA has requested that relevant matters be stayed pending the outcome of its investigations and determination of the issues currently before it. These matters were a significant factor in the Applicants’ decision to withdraw the proceeding at this time.”

(3)    “[I]nvestigations concerning relevant parties remain ongoing, including investigations by SAPOL and other bodies”.

(4)    “The Applicants submit that such applications raise significant factual and discretionary issues and should not be determined without an oral hearing.”

(5)    “The Applicants anticipate filing extensive affidavit material and supporting documents. The Applicants presently have a substantial volume of material requiring review and preparation before any final response can be filed.”

(6)    “The Applicants also respectfully advise that medical and surgical commitments presently scheduled will significantly affect their availability during the coming weeks. Accordingly, the Applicants request that any oral hearing not be listed before August 2026.”

(7)    “The Applicants also respectfully note that concerns regarding the handling and dissemination of certain information remain the subject of ongoing review processes. While the Applicants do not seek to litigate those matters within the present application, they form part of the broader circumstances that have affected the conduct and progression of the proceedings.” I understand this to be a reference to the email sent by my chambers on 20 May 2026, attaching a copy of the judgment in Britten v Grant. The text of that email is set out at [29] above.

(8)    “I write to formally notify all recipients that the matters the subject of dispute are currently before the Australian Financial Complaints Authority (AFCA) and are presently under active investigation and consideration.”

35    Insofar as it is suggested that AFCA has requested that the proceeding be stayed, the Court has received no communication from AFCA to that effect, and no evidence of any such request (apart from Ms Britten’s own unsupported assertions). I note that r A7.1 of the AFCA Complaint Resolution Scheme Rules states that a financial firm must not begin, or take certain other action in, legal proceedings about the subject matter of a complaint. That restriction has no application to the present proceeding, which was commenced by the applicants, not by a financial firm.

36    The first of the emails from Mr Britten, dated 10 June 2026, was as follows:

Dear Parties the reason we had to withdraw is so AFCA can do there full investigation hence all matters must be held until that is finished and it has not as there are multiple complaints and multiple entities involved . This includes and costs application proceed at your own determinant because we will be advising them and they tell us its not allowed . David

37    The second email from Mr Britten, received by my chambers on 17 June 2026, was in the following terms:

DEAR PARTIES GIVEN MY BACKGROUND WITH THIS MATTER I THINK ITS IMPERATIVE THAT I AM HEARD ORALLY . DUE TO CIRCUMSTANCES HOWEVER THIS MAY NOT BE POSSIBLE UNTIL AUGUST OR ON TEAMS INSTEAD OF IN PERSON . THERE APPLICATION HAS NO MERIT AGAINTS ME WHATSOVER . David Britten

38    On 25 June 2026, I made orders allowing the parties to file any affidavit evidence in relation to the costs applications. My chambers sent an email to the parties attaching the orders of 25 June 2026 and noting that the Court would consider the affidavit evidence filed in accordance with the deadlines fixed by the orders, and would decide whether the costs applications can and should be determined on the papers without the need for an oral hearing, in which case all parties would then have the opportunity to file written submissions in relation to the question of costs.

39    The time for compliance with the orders of 25 June 2026 was extended on 24 July 2026 following further correspondence from Ms Britten which set out (relevantly) as follows:

Regrettably, my family and I have recently been displaced from our home following possession proceedings in separate litigation. As a consequence, all of my Federal Court files, correspondence and legal materials remain at the property, and I have had only very limited access to those documents. This has significantly affected my ability to prepare my response. In deed I have also had issues with my health and i can provide evidence os same

Notwithstanding those circumstances, I wish to assure the Court that I take the Respondents’ costs application very seriously and respectfully seek the opportunity to place my evidence and submissions before the Court. I also continue to manage ongoing health concerns, together with a number of significant matters arising from my displacement, and I respectfully ask that those circumstances be taken into account in relation to any procedural timetable.

40    On 3 August 2026, after the Court made orders in chambers granting the extension of time sought by Ms Britten, my chambers received the following email from Mr Britten:

Dear Associate

I have only been told over the weekend that i needed to fill in an affidavit regarding costs or the like in federal court

Like I said before i had nothing to do with it . i didnt sign anything i didnt attend to anything

Not because there wasn’t a case because clearly there is and was

My wife has a better understanding of these things than me . I dont understand anything about this federal matter

I am a builder and and I work full time

There are no signatures no authorities for me for this matter i should not be liable for any costs

I haven’t got involved she did not seek my permission

That is not intentional or on purpose

It is understood she was dealing with Justice net

This is her thing . I have been involved in the Supreme court matter only because i have to be

She only withdrew because of AFCA and medical reasons

I understand she is filing her affadavit in person today or tommorow

Nothing to do with me i am not her and she is not me

We are separate people

--

David Britten

41    I note that, despite Mr Britten’s assertion that he had only just been told over the weekend that he needed to “fill in an affidavit”, he had in fact been copied into all emails sent by my chambers in relation to the proceeding.

42    Neither Mr Britten nor Ms Britten filed any affidavit evidence in relation to the costs applications in accordance with order 1 of the orders made on 25 June 2026, as extended by order 1 of the orders made on 24 July 2026. Consequently, there was no opportunity for the respondents to file any affidavit evidence in reply.

43    On 3 August 2026, I made orders in chambers, including an order that the costs applications be determined on the papers without an oral hearing, and orders establishing a timeline for the filing of any written submissions in relation to the costs applications by the parties. I made those orders because, at that stage, and in light of the fact that neither Mr Britten nor Ms Britten had filed any evidence, I had formed the view that there was no real issue of fact relevant to the determination of the costs applications, and that the legal arguments could be dealt with adequately by written submissions: see FCA Act, s 20A(2)(c).

44    Written submissions in relation to the costs applications were filed by eBroker.com.au on 14 August 2026, by the Lenders on 17 August 2026, and by Ms Britten on 1 September 2026. On 7 September 2026, eBroker.com.au and the Lenders filed written submissions in reply.

45    The day before her written submissions in relation to the costs applications were filed, Ms Britten sent an email to chambers, the registry and the other parties to the proceeding. In addition to raising certain issues in relation to the electronic lodgement of her written submissions for filing, Ms Britten said:

I am also currently receiving medical treatment for a fractured jaw and broken arm following an incident connected with the Second to Fourth Respondents. That incident forms the subject of a separate court matter, and it would therefore be inappropriate for me to address it further in this correspondence.

46    After Ms Britten’s written submissions had been successfully filed on 1 September 2026, my chambers sent an email to the parties notifying them that I proposed to treat Ms Britten’s submissions as being before the Court for the purpose of determining the costs applications, despite them having been filed after the time fixed by the order made on 3 August 2026. In response to that email, Ms Britten sent two emails to the Court and the other parties to the proceeding in quick succession. The first read, “Thankyou is there any further service requirements from me ?”. The second of Ms Britten’s emails read:

apologise for late delivery I have been recovering from being bashed from the second to fourth respondents , i can provide medical records if you wish

47    On 4 September 2026, my chambers received a very lengthy email from Ms Britten that was sent to multiple email addresses, not limited to those of the parties and solicitors in this proceeding. The recipients included email addresses for the Attorney-General for South Australia, the South Australian Courts’ Sheriff’s Office, the Australian Securities and Investments Commission, the Australian Human Rights Commission, the JusticeNet SA Federal Court self-representation service, a medical practice and a private investigation agency. Ms Britten’s email starts by referring to “the incident at [the Property] on 20 August 2026, my formal notice of personal injury dated 26 August 2026, Summer Lawyers’ letter reference 21869, and my detailed response sent on 3 September 2026”. There are six attachments to the email which are apparently photos and videos that also relate to the “incident”, but only one of them could be opened without password access to a Google drive.

48    On 7 September 2026, Ms Britten sent an email to the Court and to the other parties to the proceeding, seeking (among other things) that the costs applications be listed for a short oral hearing. The email also contained lengthy uninvited submissions including a range of factual assertions, and setting out Ms Britten’s position in relation to certain issues arising on the costs applications. This email again plainly went well beyond the limits of appropriate communication, as they had been repeatedly explained to Ms Britten.

49    In light of Ms Britten’s email and the applicants’ written submissions, I formed the view that, notwithstanding that Mr Britten and Ms Britten had not filed evidence of their own in relation to the costs applications, there were “real issue[s] of fact relevant to determination of the matter”, including as to the inferences to be drawn regarding the knowledge and motivations of Mr Britten and Ms Britten. In those circumstances, given that Ms Britten did not consent to the determination of the costs applications on the basis of written submissions, I considered that s 20A(2)(c) of the FCA Act did not apply, and that the costs applications should be determined following an oral hearing.

50    On 9 September 2026, my chambers sent an email to the parties notifying them of the proposed listing of the costs applications for oral hearing, and noting that there would be no opportunity for the filing of further evidence or written submissions. The parties were informed that I intended to have regard to all of the email communications that had been sent by the parties to chambers, and that the parties would have the opportunity to address the Court on the significance of any of those communications at the hearing of the costs applications.

51    Later the same day, in an email in reply, Ms Britten confirmed receipt of the correspondence and included the following further uninvited submission:

As to Mr Britten, I respectfully reiterate only that I prepared and conducted this proceeding. Mr Britten is a quiet and private person, but that should not be mistaken for indifference, nor does it lessen the genuine harm and distress he has experienced. His authority, participation and responsibility are separate questions that I respectfully wish to clarify orally.

52    On 9 September 2026, my chambers received a further email from Ms Britten asking whether she “may bring a USB drive to the hearing containing electronic copies of the evidence, written submissions and email communications already before the Court, for ease of reference during [her] oral submissions?” Ms Britten went on to acknowledge that no further evidence or written submissions were permitted to be filed, and to state that she was “not seeking to introduce new material or provide material privately to Chambers … [but] merely wish[ed] to ensure that the existing material can be located efficiently during the hearing”.

53    On 11 September 2026, an email was sent by my chambers to the parties confirming the listing details for the interlocutory hearing on 1 October 2026 and advising Ms Britten that:

… all of the documents filed and correspondence sent to and from chambers in this matter will be before the Court at the interlocutory hearing. It is open to the parties and practitioners to have any electronic or hard copy documents with them in the courtroom, however, there will not be any need for a USB drive to be provided for the Court.

54    My chambers received an email in response from Ms Britten on 14 September 2026, which included the following explanation:

For clarity, some of my correspondence refers to the serious incident at the Mount Jagged property on 20 August 2026 and its consequences. I hold photographs and video recordings of that incident and its immediate aftermath, including material relating to the injuries and circumstances referred to in my correspondence.

Could you please confirm whether those photographs and video recordings are already regarded as being before the Court if they were referred to, but not physically attached to, the correspondence? If they are not presently before the Court, could you please advise whether I may bring them to the hearing on a USB drive for the limited purpose of seeking leave to rely upon or tender them, should their relevance arise?

I understand that no further evidence or written submissions may be filed without leave. I therefore do not propose to send the recordings or photographs to Chambers unless directed. I merely wish to ensure that the material is available in court if his Honour wishes to see it or if I am permitted to rely upon it in connection with the matters addressed in my evidence and correspondence.

I will also bring hard copies of the documents already filed and correspondence already exchanged for my own reference.

55    By email sent to the parties on 18 September 2026, my chambers informed Ms Britten that her email of 4 September 2026 addressed to “Ms Reynolds, Ms Keach, Mr Robertson, Mr Maharaj and Mr Blackburn”, described at [46] above, and the one image attached to that email, would be before the Court. The email from my chambers further noted that the other images and recordings referred to in Ms Britten’s email of 4 September 2026 were not before the Court, and that the question of whether the incident on 20 August 2026 is relevant to the costs applications could be addressed at the interlocutory hearing listed on 1 October 2026, and should not be the subject of further correspondence.

56    On 1 October 2026, the oral hearing of the costs applications took place. The respondents appeared by counsel and made submissions. Ms Britten appeared and made submissions. She attempted to provide new evidence but I declined to accept it since it had not been filed within the extended timetable previously fixed. Mr Britten did not appear at the hearing.

57    On 5 October 2026 at 4.13pm, Ms Britten sent a lengthy email to my chambers, purportedly “for [herself] and David John Britten”, in which she sought to clarify her position on various issues. The email referred to Ms Britten’s intention to initiate a fresh proceeding in the Federal Court in the name of CJDJ. The email attached what purported to be a copy of a notice of discontinuance dated 28 May 2026. As I have noted above, despite Ms Britten having been ordered to file a notice of discontinuance to give effect to her asserted position that she intended to discontinue the proceeding, no such notice was filed. In any event, whether a notice of discontinuance was prepared but not filed is unimportant in the whole context of the considerations bearing upon the costs orders to be made in this matter. The sending of this email was inappropriate. Even though the email contained an assertion that “[w]e do not seek to reargue the case through correspondence with Chambers”, it was a transparent attempt to provide further substantive submissions, and evidence, after the completion of the hearing, to which the respondents would not have an opportunity to respond. It is another example of inappropriate conduct on the part of Ms Britten which is directly contrary to expectations that were clearly communicated to her, and apt to occasion additional and unnecessary costs for the respondents. It is also a further example of Ms Britten purporting to act in the proceeding on behalf of Mr Britten. Insofar as Ms Britten claims that the notice of discontinuance was ever filed, that claim is false and I reject it.

58    On 5 October 2026 at 4.37pm and on 6 October 2026 at 4.05pm, Ms Britten sent further emails to my chambers, which purported to be sent on behalf of Mr Britten. They relate to a separate proceeding in the Supreme Court of South Australia to which Mr Britten is a party. The copying of these emails to my chambers was inappropriate. I have not had regard to them.

Should Ms Britten be required to pay the respondents’ costs?

59    The Court has jurisdiction to award costs in the proceeding: FCA Act, s 43(1). It is well established that, in the absence of special circumstances justifying some other order as to costs, a successful litigant is ordinarily entitled to an award of costs in their favour: see Swancom Pty Ltd v Jazz Corner Hotel Pty Ltd (2022) 407 ALR 93; [2022] FCAFC 157 at 115 [133]; Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7].

60    Pursuant to r 40.02 of the Federal Court Rules, the Court has a broad discretion to make orders relating to costs. Rule 40.02 provides as follows:

A party or a person who is entitled to costs may apply to the Court for an order that costs:

(a)    awarded in their favour be paid other than as between party and party; or

(b)    be awarded in a lump sum, instead of, or in addition to, any taxed costs; or

(c)    be determined otherwise than by taxation.

Note 1: The Court may order that costs be paid on an indemnity basis.

Note 2: The Court may order that the costs be determined by reference to a cost assessment scheme operating under the law of a State or Territory.

61    As set out above, the applicants commenced the proceeding on 28 January 2026 and later abandoned their claims. The originating application was dismissed on 14 May 2026, insofar as it was brought by Mr Britten and, on 29 May 2026, insofar as it was brought by Ms Britten. In the ordinary course, the respondents would be entitled to their costs incurred in relation to the claims brought by each of the applicants.

62    It is also relevant to note that r 26.12(1) of the Federal Court Rules provides that a party may discontinue a proceeding in whole or in part by filing a notice of discontinuance. Rule 26.12(7) provides that, unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued. In this case, Mr Britten and Ms Britten each separately indicated, at different times, that they wished to discontinue the proceeding insofar as it was brought by them. Neither of them filed a notice of discontinuance to give effect to that decision, and the proceeding was instead brought to an end by the making of orders that it be dismissed. Those orders were made on the basis of the indication given by each of Mr Britten and Ms Britten that they wished to discontinue the proceeding insofar as it was brought by them, and their evident unwillingness to file the appropriate form to give effect to that election. Thus, while r 26.12 does not apply directly, it provides a further indication that, in the absence of circumstances that warrant making a different order, Mr Britten and Ms Britten should be liable to pay the costs of eBroker.com.au and the Lenders in respect of that part of the proceeding which each of them elected to discontinue.

63    Ms Britten contends that there should be no order as to the costs of the proceeding on the bases that:

(a)    “the proceeding ended without a merits determination after an external standing development”;

(b)    she “acted promptly” to prevent the parties from incurring costs in relation to the interlocutory hearing listed on 22 May 2026;

(c)    “the underlying dispute continued through AFCA”; and

(d)    “the respondents seek to rely on untested characterisations of the claim”.

64    None of these reasons justifies a departure from the ordinary rule that costs should follow the event, and that an applicant who elects to discontinue or abandon the prosecution of a proceeding should pay the costs of the respondents.

65    Ms Britten points to serious health problems, difficulties in securing legal representation, her financial incapacity and the acute stress she has experienced as a result of litigation in the Supreme Court of South Australia (involving Dynamic’s attempt to take possession of the applicants’ home) as factors contributing to her decision to discontinue the proceeding. Although she was given an opportunity to file evidence in relation to these matters, Ms Britten did not do so. Having failed to comply with orders for the filing of evidence in accordance with a timetable fixed by the Court, which was subsequently extended to accommodate her request for more time, at the hearing of the costs applications, Ms Britten asked the Court to receive further medical evidence. I declined to receive that evidence. To do so at that stage of the proceeding would have been unfair to the respondents, who had prepared detailed evidence and submissions on the basis that Ms Britten had elected not to file any evidence on the costs applications.

66    Despite the failure of Ms Britten to file evidence supporting her assertions, I am nevertheless prepared to accept that Ms Britten’s decision to discontinue the proceeding was influenced by a combination of factors, including considerations of the kinds to which she has referred.

67    Ms Britten takes issue with the correspondence sent by my chambers to the parties to the proceeding on 20 May 2026, set out above at [27]. That correspondence attached my reasons for judgment in Britten v Grant, and informed the parties that the interlocutory hearing that was then listed on 22 May 2026 would be confined to the issue of whether she had standing, having regard to the fact that she remained an undischarged bankrupt following the determination of her application in Britten v Grant. Ms Britten submitted that the provision of the reasons in Britten v Grant by email to the parties to this proceeding “placed her at a grave forensic disadvantage”. She states that the “extreme stress” of the litigation and the fact that she “was medically unwell” resulted in her being “unable to prepare an adequate standing argument within two days”.

68    Ms Britten’s submission mischaracterises the effect of what occurred. The summary dismissal applications were listed for hearing on 22 May 2026. The issues raised by those applications included whether Ms Britten had standing to commence and continue the proceeding in light of the fact that she was an undischarged bankrupt and, thus, that any right she may have had to commence the proceeding was vested in her trustee in bankruptcy. Given that the proceeding had already been dismissed insofar as it was brought by Mr Britten, the issue of Ms Britten’s standing loomed as a threshold issue that, if decided against her, would be determinative of the proceeding.

69    Ms Britten was not given two days’ notice of the hearing on 22 May 2026, or of the issue concerning the effect of her bankruptcy. The effect of the email sent from my chambers on 20 May 2026 was to inform the parties that the hearing on 22 May 2026 would be limited to that threshold issue. Before the delivery of my judgment in Britten v Grant, Ms Britten was already an undischarged bankrupt, and, to her knowledge, had been an undischarged bankrupt throughout the time that the present proceeding was on foot. The decision in Britten v Grant did not change the position, but rather confirmed that Ms Britten’s application to have her bankruptcy annulled had been unsuccessful and that she was, therefore, still an undischarged bankrupt. The significance of the effect of the decision was to confirm that that apparent bar to Ms Britten prosecuting the proceeding remained in existence and that (subject to any appeal) this was not a state of affairs that was about to change. The judgment in Britten v Grant that was sent to the parties was directly relevant to that issue, and was a publicly available judgment of the Court. It was appropriate that the parties be made aware of, and provided with a copy of, the reasons for judgment in a timely fashion ahead of the interlocutory hearing of the summary dismissal applications that were listed on 22 May 2026.

70    Ms Britten had earlier foreshadowed a possible application to adjourn the interlocutory hearing on 22 May 2026 on the basis that (as she claimed) she was preparing and wished to file further affidavit material, written submissions and an amended statement of claim, despite having been given ample opportunity to file such documents (the time within which to do so having been extended at her request), and despite having filed (late) voluminous written submissions. However, as Ms Britten acknowledged, she had made no application for an adjournment. She had indicated a preference that the hearing be adjourned, while expressly stating that she did not agree to pay the respondents’ costs thrown away by reason of the adjournment. Given that the issue relating to the effect of her bankruptcy did not involve factual matters that were sensibly capable of being disputed, the decision to limit the hearing on 22 May 2026 to that threshold issue was designed to avoid any possible prejudice which Ms Britten might claim to suffer if she were not permitted to file further documents of the kinds to which she had referred.

71    I find that a substantial reason why Ms Britten communicated her intention to discontinue the proceeding when she did was because she appreciated that the fact that she remained an undischarged bankrupt was likely to lead to the summary dismissal applications being successful. As I have said, I am prepared to accept that this reason bore on Ms Britten’s decision in conjunction with other factors relating to her personal circumstances.

72    In the course of the proceeding, Ms Britten has frequently asserted that she is pursuing a complaint to AFCA against one or more of the respondents. The fact that Ms Britten has also made complaints against the respondents using another process, in parallel with the proceeding, is not a factor that supports a departure from the usual rule in relation to costs. Ms Britten has said that her complaint to AFCA was made before she commenced the present proceeding. It does not provide an explanation for the abandonment of the proceeding that would warrant a departure from the ordinary rule that costs should follow the event.

73    I do not accept that Ms Britten can be said to have acted promptly in discontinuing the proceeding to prevent the parties from incurring costs in relation to the interlocutory hearing listed on 22 May 2026. Ms Britten first informed the respondents and the Court of her intention to discontinue the proceeding on 20 May 2026, two days before the interlocutory hearing. By that stage, the respondents had filed evidence and detailed written submissions in support of the summary dismissal applications. Ms Britten had filed two expansive sets of written submissions in response. Further, despite informing the Court that she would do so, and despite an order requiring her to do so, Ms Britten did not actually file a notice of discontinuance. To the extent that Ms Britten saved the respondents costs by indicating an intention to discontinue the proceeding when she did, that will be reflected in the quantum of costs that she will be required to pay.

74    I accept that, after the parties were informed of the decision in Britten v Grant, Ms Britten then acted promptly to inform the Court that she intended to discontinue the proceeding, but the effect of her bankruptcy on the proceeding was one of which she had long been aware.

75    I accept that the effect of Ms Britten’s decision to discontinue the proceeding means that there has not been a final determination of Ms Britten’s claims on their merits, or of the summary dismissal applications. That is the usual situation when an applicant elects to discontinue a proceeding and, in the circumstances of this case, it is not a factor to which I attach any weight in deciding whether costs should follow the event. To the extent that Ms Britten’s decision to discontinue the proceeding has saved the respondents costs that they would have incurred had their summary dismissal applications been heard and determined on their merits, that will naturally be reflected in the quantum of costs.

76    Ms Britten has been actively involved throughout the proceeding. Accordingly, Ms Britten should be liable to pay the respondents’ costs of the whole proceeding.

Should Ms Britten be required to pay the respondents’ costs on an indemnity basis?

Introduction

77    The next question is whether the costs payable by Ms Britten should be ordered on a party and party basis or an indemnity basis. For the following reasons, I have concluded that Ms Britten should be required to pay the costs of the proceeding on an indemnity basis.

78    In some cases, the fact that an applicant has commenced a proceeding and then chosen not to pursue it may itself warrant the imposition of an order requiring the applicant to pay the respondents’ costs on an indemnity basis: cf Palmer v Premiair Aviation Maintenance Pty Ltd [2022] FCA 185 at [24]. In this case, however, I would not make an order of that kind merely because the applicants elected to discontinue or abandon the proceeding. I am conscious that making an order for indemnity costs in circumstances where a claim has been discontinued without a hearing and determination of the merits might tend to act as a disincentive to applicants to abandon an unmeritorious case.

79    Ms Britten had not been a party in the earlier proceeding in the Supreme Court of South Australia, which led to the judgment of B Doyle J in Britten v Dynamic Business Enterprises Pty Ltd [2026] SASC 2 (Britten v Dynamic). The Supreme Court declined to allow her to conduct proceedings on behalf of Mr Britten, but it is clear that she was nevertheless actively involved in the conduct of those proceedings. In the course of her submissions on the costs applications in this Court, Ms Britten stated that she:

… wasn’t a party to the action [in the Supreme Court]. In fact, I’ve been silenced completely throughout this. I’ve never been allowed to speak. This [ie, the present proceeding] is the first time that I’ve actually really been able to speak.

80    I find that at least one reason why Ms Britten included herself as the second applicant in the present proceeding was so to enable herself to conduct the proceeding, and so that she could speak and correspond with the Court.

81    I am prepared to accept that Ms Britten genuinely commenced, and continued to pursue, the proceeding for the purpose of obtaining relief of the kind sought in the originating application, and not for some ulterior purpose. Ms Britten strongly rejected any suggestion that she had started the action “just to be vexatious”, that she was “running a vexatious case”, or that the proceeding was an abuse of process. I accept that Ms Britten did not commence the proceeding for the subjective purpose of “be[ing] vexatious”. However, the proceeding, and the manner in which it has been conducted by Ms Britten, is properly objectively characterised as vexatious in significant respects.

82    Although I do not consider it appropriate to exhaustively consider the merits of the applicants’ claims, or the summary dismissal applications, there are certain features of the claims advanced by the applicants that I do consider bear on the question of whether the respondents should have their costs paid by the applicants on an indemnity basis. They demonstrate that at least substantial aspects of the claims advanced by the applicants were untenable, and that the manner in which the proceeding was approached by Ms Britten has caused the respondents unnecessarily to incur substantial costs.

No reasonable basis for claims advanced by Ms Britten, in light of her bankruptcy

83    Throughout the time the proceeding has been on foot, Ms Britten has, to her knowledge, been an undischarged bankrupt. Before commencing the proceeding, Ms Britten had commenced the proceeding in Britten v Grant, in which she sought orders annulling her bankruptcy. At least since the first case management hearing (when it was raised by the Lenders), Ms Britten has been on notice of the respondents’ contention that she lacked standing to bring the proceeding because any right of action she may have had was vested in her trustee in bankruptcy.

84    I am prepared to assume, in Ms Britten’s favour, that, at the time when she commenced the present proceeding, Ms Britten subjectively believed that it was likely that she would succeed in convincing the Court to annul her bankruptcy. However, even if that belief was genuinely held, it was unreasonable.

85    Ms Britten’s application for the annulment of the bankruptcy depended heavily on her assertion that, until early 2025, she had been unaware that a sequestration order had been made against her in July 2022. As I explained in Britten v Grant, that assertion is inconsistent with a significant body of objective evidence, including numerous contemporaneous emails that I found to have been sent by Ms Britten. While I accept that, subjectively, Ms Britten may well have believed that the Court would accept her false assertion that she was unaware of the bankruptcy, that belief was unreasonable.

86    At the hearing of the costs applications, Ms Britten persisted in her claim that she had been unaware of her bankruptcy until early 2025. When it was pointed out that that submission was inconsistent with the findings in Britten v Grant, she maintained that no finding had been made that she had been aware of the bankruptcy. That submission is incorrect. In Britten v Grant at [122]-[124], I said:

I find, on the balance of probabilities, that every one of the emails sent from cathyhogben@gmail.com, cathynoreplyhogben@gmail.com and cathylegalcjsph
@gmail.com to which reference has been made at [12]-[84] above was written by Ms Britten, and was sent by her. I find that Ms Britten was fully aware of the nature and content of all of the attachments to every one of those emails.

The emails sent from the three email addresses associated with Ms Britten in the lead-up to 13 July 2022 exhibit an awareness of what was happening in connection with the FCFCOA Proceeding, and many of the emails that were sent were in reply to, or were responsive to, emails that had been sent to one or more of the three email addresses associated with Ms Britten. I find, on the balance of probabilities, that Ms Britten received (at the least) all emails sent to those three email addresses in the period between 24 February and 9 August 2022 which related to the Bankruptcy Notice, the Creditor’s Petition and the FCFCOA Proceeding.

I find that Ms Britten in fact received notice of the Sequestration Order shortly after a copy of it was sent to cathyhogben@gmail.com by the Senior Legal Case Manager using the email address for the Queensland registry, on 13 July 2022 at 4.40pm. It follows that Ms Britten’s contentions that she was unaware, until early 2025, of the fact that a sequestration order had been made on 13 July 2022 must be rejected.

87    Further, on each of 22 July and 9 August 2022, Ms Britten responded to subsequent emails sent to her by the Australian Financial Security Authority regarding her bankruptcy: see Britten v Grant at [82]-[84], [135]. I note that Ms Britten has not appealed against the decision in Britten v Grant.

88    In any event, at the time when Ms Britten commenced the present proceeding, she remained, to her knowledge, an undischarged bankrupt. Any entitlement to pursue any cause of action of the kind she sought to bring against the respondents was vested in her trustee in bankruptcy. Ms Britten submits that the effect of s 116(2) of the Bankruptcy Act was that she was not prevented from pursuing certain claims personally. However, she was not able to explain why any of the claims she had pursued against any of the respondents in the present proceeding was a claim of a kind to which s 116(2) would apply.

No reasonable basis for alleged contraventions of the National Credit Code

89    In the statement of claim filed by Ms Britten, it was asserted that “the central legal issue in the proceeding” was “whether the loan and mortgage arrangement was subject to the Commonwealth credit legislation including the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code”. Consistently with this assertion, many of the applicants’ claims relate to alleged conduct of the respondents which they claim constituted contraventions of the National Credit Code.

90    The National Credit Code is Sch 1 to the NCCP Act, and has effect as a law of the Commonwealth by operation of s 3 of the NCCP Act. A central premise of the applicants’ case was that the National Credit Code applied to the loan transaction that was the subject of the proceeding. As has been explained above, the debtor under the loan was CJDJ, a company of which Ms Britten was the sole director (despite her bankruptcy and consequential disqualification from acting as a director).

91    The application of the National Credit Code is relevantly addressed in s 5(1) of the National Credit Code, which states as follows:

5 Provision of credit to which this Code applies

(1)    This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:

(a)    the debtor is a natural person or a strata corporation; and

(b)    the credit is provided or intended to be provided wholly or predominantly:

(i)    for personal, domestic or household purposes; or

(ii)    to purchase, renovate or improve residential property for investment purposes; or

(iii)    to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and

(c)    a charge is or may be made for providing the credit; and

(d)    the credit provider provides the credit in the course of a business of providing credit carried on in this jurisdiction or as part of or incidentally to any other business of the credit provider carried on in this jurisdiction.

…

92    It is clear from the terms of s 5(1) that the National Credit Code did not apply to the loan transaction to which the proceeding relates, because the only debtor was CJDJ, which was not a natural person or a strata corporation, and because the credit was provided wholly for the purposes of the business of CJDJ, and not for any of the purposes referred to in s 5(1)(b). Ms Britten has been unable to explain any plausible basis on which the provisions of the National Credit Code could apply to the respondents in relation to the relevant loan transaction.

93    I find that it was unreasonable for the applicants to commence, and to continue to pursue, claims against the respondents based on the application of the National Credit Code in connection with the loan transaction.

No reasonable basis for claims against eBroker.com.au

94    eBroker.com.au submits that a factor that supports the award of costs on an indemnity basis is “the overwhelming lack of merit to the claims brought against it”. It describes the applicants’ claims against eBroker.com.au as “hopeless, vexatious and, in all of the circumstances, an abuse of process”.

95    In the statement of claim filed by Ms Britten, it was alleged that eBroker.com.au:

(a)    “acted as the entry point through which the Applicants were introduced into the lending structure”;

(b)    “held itself out as a broker capable of arranging finance through connections with lenders and credit providers”; and

(c)    “introduced the Applicants into communications with persons associated with the lender entities”.

96    The statement of claim asserted that “if [eBroker.com.au] held an Australian Credit Licence or acted as a credit intermediary in arranging the loan, then the conduct of the Respondents must be examined within the framework of the Commonwealth credit legislation”. The statement of claim alleged no conduct on the part of eBroker.com.au which, if proved, would be capable of establishing a plausible cause of action against it.

97    eBroker.com.au submits that no plausible cause of action against it has ever been identified in the proceeding. I accept this submission. Ms Britten maintains that the claim against eBroker.com.au was genuinely and properly brought because it was eBroker.com.au that introduced the applicants to the Lenders. However, that undisputed fact clearly does not itself identify or support any cause of action against eBroker.com.au.

98    Moreover, an email sent by eBroker.com.au to Ms Britten on 13 February 2024 at 11.05am, establishes that eBroker.com.au had clearly communicated that it would not be involved in the loan transaction. That email stated:

Hi Cathy,

Thank you for taking the time to apply with Ebroker. After having conducted our due diligence on your application we have come to the decision not to proceed further with the application as it does not meet our Responsible Lending standards. During the application process there has been a breakdown in communication resulting in the application being referred to First Cashflow Solutions. I understand that Amal from First Cashflow Solutions is still wishing to proceed which is entirely their decision. Please acknowledge, by way of return email, that if you are to proceed with finance from First Cashflow Solutions that Ebroker.com.au Pty Ltd has no involvement with the finance application or any part of this referral.

Kind Regards,

Tracy Ellwood | Operations Manager

99    When counsel for eBroker.com.au made reference to this email in the course of her submissions on the costs applications, Ms Britten interrupted her, asserting that Ms Britten “didn’t have that email, at that time. It’s a different email address.”

100    This assertion was brazenly dishonest. The email address to which this email was sent was the address which Ms Britten had been using to communicate with eBroker.com.au. Moreover, four minutes after the email from eBroker.com.au was sent to her, Ms Britten, using the same email address, replied (in the same email chain) in the following terms:

Thankyou Tracey – we confirm that we are still proceeding with first cashflow solutions without ebrokers Involvement

regards

101    For these reasons, I accept the submission of eBroker.com.au that the conduct of the applicants in commencing and continuing the proceeding against eBroker.com.au was objectively unreasonable, and vexatious. This supports the award of indemnity costs in favour of eBroker.com.au.

102    I note that Ms Britten’s untruthful assertion that she was not using a particular email address at a particular time when a crucial email was sent is consistent with similar demonstrably false assertions repeatedly made by her in this proceeding. A similar pattern of conduct is evidenced from the reasons for judgment in Britten v Grant.

No cause of action identified against Mr Blackburn

103    In the statement of claim, the only facts pleaded specifically in relation to Mr Blackburn are that he:

(a)    “holds a credit licence under connective”;

(b)    “was involved in communications and dealings with the Applicants concerning the loan”;

(c)    “was associated with entities involved in the lending chain including [FCFS]”; and

(d)    was a director of both FCFS and Dynamic.

104    The statement of claim also includes an assertion that “the involvement of [Mr Blackburn] is significant because it demonstrates that the loan was not merely a passive investment but part of an organised lending structure”.

105    Mr Blackburn was the director of FCFS and, in his dealings with CJDJ, Ms Britten and Mr Britten, was evidently acting in his capacity as either a director or employee (or both) of FCFS. There is no basis to suggest (and it has not been suggested) that he contracted with CJDJ, Mr Britten or Ms Britten in his personal capacity.

106    The allegations pleaded against Mr Blackburn, if proved, would not be capable of establishing a cause of action against him. The mere assertion of Mr Blackburn’s having been involved in communications with Mr Britten and Ms Britten provides no reasonable basis for joining him as the fourth respondent. The only explanation Ms Britten advanced as to why Mr Blackburn was named as a respondent is that “he has a credit licence”. It is relevant to recall that orders were made, at Ms Britten’s request, permitting her to file an amended statement of claim to address deficiencies identified by the respondents, and she did not take up that opportunity. I accept the submission of the Lenders that the conduct of the applicants in commencing and continuing the proceeding against Mr Blackburn, in circumstances where no basis for a cause of action against him has been identified, was objectively unreasonable.

107    There are other bases on which the Lenders contended that the applicants’ claims against both FCFS and Mr Blackburn were doomed to fail, but I do not find it necessary to address them.

Unreasonable conduct in connection with the proceeding

108    There are several respects in which Ms Britten’s conduct in connection with the proceeding has been unreasonable.

109    Ms Britten’s communication with my chambers by email in relation to this proceeding has been frequent, and often inappropriate. The limits of appropriate communication and the importance of the distinction between factual assertions and evidence were explained to Ms Britten at the first case management hearing, as well as repeatedly by way of email correspondence from chambers. Despite being reminded not to do so, Ms Britten has repeatedly sent lengthy emails to chambers in which she has made substantive submissions and factual assertions, without filing supporting evidence. She has repeatedly professed that she is conscious of the limits of appropriate communication with chambers while, often in the same email, flagrantly transgressing the limits previously communicated to her.

110    Ms Britten has adopted a strategy of making factual claims in email correspondence and in submissions which are unsupported by evidence, while asserting that evidence of those matters can be provided if necessary. When given the opportunity to file evidence in connection with both the summary dismissal applications and the costs applications, she did not do so (even where the time to do so had been extended at her request). In Ms Britten’s correspondence and submissions regarding the costs applications, she has repeatedly made assertions about factual matters which are irrelevant to the issues arising on those applications, and which are evidently designed to excite either sympathy for her or prejudice against the respondents. Otherwise, her oral submissions on the costs applications were principally directed to the merits of the claim that she had abandoned, but largely did not directly address the specific matters relied on by the respondents. Ms Britten sought to rely on selective evidential material that is not in evidence, well after the time fixed for the filing of evidence has passed, and thus in circumstances where the respondents do not have a fair chance to file evidence in response.

111    Ms Britten has boldly made factual assertions, particularly in relation to the use of email addresses and the receipt of emails by both herself (as to which, see, for example, [98]-[100] above) and Mr Britten (as to which, see [125]-[126] below), which are readily shown to be false by reference to evidence such as contemporaneous documents. As noted above, in this proceeding, Ms Britten has also continued falsely to maintain (despite the findings made in Britten v Grant) that she was unaware of her bankruptcy before early 2025.

112    Considered cumulatively, and objectively, this behaviour on the part of Ms Britten is properly characterised as unreasonable and vexatious. I am confident that the manner in which she has conducted the proceeding has led to the respondents incurring costs in connection with the proceeding which are significantly greater than they would otherwise have been.

Ms Britten’s unreasonable conduct in acting on behalf of Mr Britten

113    Finally, at the hearing of the costs applications, Ms Britten accepted that she made “a crucial error in making so much on behalf of Mr Britten” – that is, by filing documents in the proceeding on his behalf in circumstances where he was not fully aware of what was being done in his name. While Ms Britten claimed that this was “an innocent assumption that [she] had”, she conceded that her conduct was “totally unreasonable”, that she “should not have done that”. She stated that she “had always had ambitions of being involved in the legal field”, and that she thought she was doing the right thing by her husband. Although I do not accept that the proceeding was unauthorised by Mr Britten, I accept that, after it was commenced, Mr Britten allowed Ms Britten to conduct the proceeding on his behalf, remaining wilfully ignorant of what she was purporting to do in his name. I accept that Ms Britten corresponded with the Court and filed documents in the proceeding, purportedly on behalf of Mr Britten as well as herself and, to the extent that she corresponded and filed documents in his name without his prior knowledge of their content, I accept her concession that it was unreasonable for her to do so.

Conclusion

114    I consider that, when the matters referred to above are considered in combination, they comfortably support the conclusion that it is appropriate that Ms Britten be required to pay the costs of the respondents on an indemnity basis. It is unnecessary to consider any other matters relied on by the respondents.

115    I note that, on 25 March 2026, I ordered that the applicants pay, on an indemnity basis, the respondents’ costs of the interlocutory application which was filed by the applicants together with their originating application and abandoned at the first case management hearing. In deciding whether the remainder of the costs of the proceeding should be paid on an indemnity basis, I have not had regard again to the particular reasons for making that order.

Should Mr Britten be required to pay the respondents’ costs?

116    The next issue for consideration is whether a costs order should be made against Mr Britten. Mr Britten himself has not advanced any submissions in relation to costs. Ms Britten opposes any costs order being made against Mr Britten and submits that any order that the applicants be jointly and severally liable to pay the respondents’ costs “would be particularly unjust”. In her written submissions, Ms Britten contends as follows:

[Ms Britten] accepts sole responsibility for preparing and lodging the originating material and subsequent material in the names of both applicants. [Mr Britten] knew that [Ms Britten] was attempting to pursue the underlying dispute, but he did not personally prepare or lodge any document, instruct [Ms Britten] to act for him, approve the later filings, attend a hearing, or control the conduct of the proceeding. [Ms Britten] accepts that she did not obtain his informed authority to conduct Federal Court litigation on his behalf. This is not put forward to avoid her own responsibility, but because costs must be determined separately by reference to each applicant’s conduct and causation.

117    The originating application by which the proceeding was commenced was filed along with the interlocutory injunction application, an affidavit sworn by Ms Britten on 27 January 2026, and an affidavit sworn by Mr Britten on 27 January 2026.

118    Ms Britten asserts that her actions in the conduct of the proceeding “should not be attributed to Mr Britten without proof of authority, instruction or control”. She seeks to draw a distinction between the swearing of an affidavit “concerning factual events” by Mr Britten and his giving authority to Ms Britten “to commence, conduct and make forensic decisions in litigation”.

119    Throughout the proceeding, Ms Britten has repeatedly purported to correspond with the respondents and the Court on behalf of both herself and her husband. She filed documents, including a statement of claim and lengthy written submissions, that were identified as being filed on behalf of both herself and Mr Britten. At the case management hearing on 25 March 2026, Ms Britten informed the Court that both she and Mr Britten had engaged a lawyer, but that that lawyer had discovered a conflict of interest, and that they were both taking steps to obtain legal representation in the proceeding. This strongly implied that Mr Britten was aware of, and was continuing to prosecute, the proceeding.

120    At the hearing of the costs applications, Ms Britten was asked to confirm whether her position was that she had been filing documents in Mr Britten’s name without his authority. She accepted that she had filed documents in his name but said, “Not necessarily without his authority, no. But I was, I was running this case. I felt that I could run it. I felt that I was extremely competent to run it …”. Ms Britten’s position in relation to the extent to which she was acting with the knowledge and authority of Mr Britten has been inconsistent and obfuscatory.

121    The proceeding relates to a loan in which CJDJ was the debtor. Mr Britten and Ms Britten were guarantors, but the statement of claim filed by them makes no reference to the guarantee. The relief sought includes injunctions relating to the Property, which is registered in Mr Britten’s sole name. It is not apparent from the originating application or the statement of claim that Ms Britten had any cause of action against the respondents herself; at the least, it can be said that Mr Britten’s circumstances made him the more obvious applicant for the injunctive relief sought in relation to the Property. Further, as has been explained, Ms Britten is an undischarged bankrupt. Although Ms Britten has asserted that she holds a life interest in the Property, it would appear that, even if that had been the case, any proprietary interest held by her is now vested in her trustee in bankruptcy: see Bankruptcy Act, s 58(1)(a). Mr Britten was named in the proceeding as the first applicant and Ms Britten as the second applicant.

122    As has already been noted, on 27 January 2026, Mr Britten swore an affidavit for filing in the proceeding. Mr Britten’s affidavit itself identifies him as the first applicant in the proceeding. The affidavit states that it is made in support of the originating application and the application for interlocutory relief. I find that Mr Britten played a central role in the commencement of the proceeding. I find that he was aware of, and authorised the commencement of, the proceeding, the interlocutory application and the filing of the affidavit by Ms Britten on his behalf. He knew that he was the first applicant in the proceeding and, at the least, that Ms Britten was continuing to prosecute the proceeding. Neither Mr Britten nor Ms Britten has filed any affidavit evidence to support any claim that Mr Britten did not authorise the commencement of the proceeding. It is, in any event, a safe inference that a party who has commenced a proceeding in the Court, supported by an affidavit sworn by them, has authorised its commencement.

123    Furthermore, correspondence relating to the proceeding (up to the dismissal of the originating application insofar as it was brought by him) was sent to Mr Britten, at the separate email address which he has used to correspond with the Court in relation to the proceeding, as well as to Ms Britten. This includes correspondence providing Mr Britten with copies of all orders made by the Court in the proceeding, each of which clearly identifies him as the first applicant.

124    At the hearing of the costs applications, Ms Britten asserted that Mr Britten “doesn’t actually even know that this [ie, the hearing] is on today”. I pointed out that Mr Britten had been informed by email of the listing of the hearing of the costs applications. Ms Britten then asserted that the email address on file for Mr Britten, to which all correspondence relating to the proceeding was sent, was an address “which he just doesn’t use, and hasn’t used for quite some time”. She then submitted:

He doesn’t use email to start off with. I can’t even verify these emails. I can’t. It says David Britten. It doesn’t have an email address. You can’t – if you click down on that, you should be able to see the details underneath those emails …

125    Ms Britten was referring to the printed copy of the emails sent by Mr Britten which were in evidence, which recorded his name but not his email address. However, the emails in question were sent or copied to all parties to the proceeding, and Mr Britten’s email address was clear to all recipients. I reject all these submissions. Mr Britten knew that he was the first applicant in the proceeding, was well aware of the application for costs against him (and at one point even requested that he be heard orally on the application), and knew that correspondence regarding the proceeding was being sent to him at his email address. Ms Britten’s assertion that Mr Britten did not know about the hearing of the costs applications and that he did not use the relevant email address are insincere. Her suggestion that she could not “verify” the emails, which had been sent to both her and Mr Britten at the same time, is disingenuous.

126    I accept that Ms Britten has been responsible for the running of the litigation, in the practical sense of taking active steps in the litigation. However, Mr Britten knew that the proceeding was on foot, and that he was the first applicant. In his email to my chambers on 14 May 2026, he expressly stated that he “had only wanted to be involved if [Ms Britten] could present for [him]”. At best, having authorised and knowing that a proceeding in which he was the first applicant had been commenced, and was being advanced by Ms Britten as the second applicant, Mr Britten adopted a position of wilful blindness in relation to the manner in which the proceeding was being conducted by Ms Britten, leaving it up to her to act on his behalf as she saw fit. He took no steps to communicate his unwillingness to be involved, or to discontinue the proceeding, until he sent the email on 14 May 2026.

127    Mr Britten’s email to my chambers on 3 August 2026 includes assertions that “[t]here are no signatures no authorities for me for this matter” and “I haven’t got involved she did not seek my permission”. These assertions are impossible to reconcile with the content of Mr Britten’s affidavit and the statement in his email of 14 May 2026 that he had “only wanted to be involved if [Ms Britten] could present for [him]”. I am not prepared to accept them. Again, I note that the applicants, although given ample opportunity to do so, filed no evidence on the costs applications.

128    Ms Britten asserts that she “accepts responsibility” for the preparation and filing of documents in, and the conduct of, the proceeding. The fact that she claims to accept such responsibility is not entitled to any weight in the exercise of the costs discretion. Ms Britten’s attempt to argue against an order that Mr Britten be ordered to pay costs – in circumstances where it is doubtful whether a costs order against Ms Britten alone will be of much practical benefit to the respondents, and where Ms Britten is married to Mr Britten and stands to benefit in a practical sense if Mr Britten is able to avoid a costs order – should be rejected.

129    I am satisfied that Mr Britten was aware of, and authorised, the filing of the originating application, naming him as the first applicant, that he knew Ms Britten was conducting the proceeding and that he permitted her to do so on his behalf. There is no sufficient reason why the ordinary rule, that costs follow the event, should not be applied to Mr Britten.

130    As the respondents accepted, the costs to be borne by Mr Britten in respect of the substantive issues in the proceeding should be limited to those incurred in the period up to 14 May 2026, when Mr Britten indicated that he did not wish to participate further in the proceeding, and when orders were made dismissing the originating application insofar as it was brought by Mr Britten. The costs incurred by the respondents after 14 May 2026 in relation to the substantive issues in the proceeding (including the summary dismissal applications) should be borne by Ms Britten alone.

131    Mr Britten should also be required to pay the respondents’ costs of the costs applications. This is so notwithstanding the fact that he did not take an active position on the costs applications, has never accepted that he should pay the respondents’ costs (and asserted by email that he should not), and took no action while Ms Britten actively advanced a submission that he should not be required to pay costs.

Should Mr Britten be required to pay the respondents’ costs on an indemnity basis?

132    Apart from authorising the commencement of the proceeding, making his affidavit dated 27 January 2026, and sending the emails set out at [24], [26], [35], [37] and [40] above, Mr Britten has chosen not to take an active role in the proceeding. He was, as I have said, content to allow Ms Britten to conduct the proceeding in whatever manner she saw fit, lending his name to her conduct of the proceeding on his behalf, and enabling Ms Britten to engage in the conduct which I have found to warrant an award of indemnity costs against her.

133    Ms Britten’s submissions sought to paint Mr Britten as unsophisticated. She asserted that he did not understand the difference between the Federal Court and the Supreme Court of South Australia. She said he had never been to the Supreme Court. I do not accept these submissions. The affidavit made by Mr Britten and filed in this proceeding displays a detailed understanding of the proceeding in the Supreme Court (to which he was a party) as well as the nature of the issues raised in this proceeding. The applicants chose to file no evidence in respect of Mr Britten’s knowledge or understanding, and there is no basis to make the serious finding that he swore an affidavit without understanding its contents. Mr Britten’s own email correspondence to the Court distinguishes between his proceeding in the Supreme Court and the present proceeding in the Federal Court. It is also clear from the judgment in Britten v Dynamic (at [30]-[31]) that Mr Britten attended the Supreme Court (together with Ms Britten) and made submissions in person. Further, the way in which Ms Britten was conducting the present proceeding must have been apparent to Mr Britten, because he was (except in the period between 14 and 21 May 2026) copied into email correspondence between the parties and with the Court (including multiple lengthy emails sent by Ms Britten), and was served with documents filed in the proceeding.

134    Despite having been told that she could not represent Mr Britten, Ms Britten continued, in practical reality, to prosecute the proceeding on behalf of both applicants, including by filing a statement of claim setting out their joint case and lengthy written submissions identified as submissions of both of them. She did so with Mr Britten’s knowledge. Before sending the email on 14 May 2026 by which Mr Britten confirmed that he no longer wished to participate in the proceeding, he had taken no steps either to distance himself from Ms Britten’s conduct of the proceeding or to prosecute the proceeding independently on his own behalf. Rather, he was content for Ms Britten to carry on the proceeding on behalf of both of them.

135    In Moss v Aquisite Pty Ltd [2024] FCA 455 at [48], O’Callaghan J considered that the “wholesale failure” of the appellant in that case to prosecute his case or to comply with the Court’s orders were “circumstances that warrant[ed] departure from the usual rule” and that costs should be awarded on an indemnity basis. In this case, similarly, Mr Britten took no steps, independent of Ms Britten, to prosecute the proceeding, in circumstances where he was, or ought to have been, aware of her conduct in prosecuting the proceeding (including by filing documents in his name).

136    Furthermore, in light of Ms Britten’s bankruptcy, Mr Britten would appear to have been the only person (other than CJDJ) with standing to bring the claims advanced against the respondents, so the applicants’ case was dependent on his continuing tacit approval of Ms Britten’s conduct of the proceeding, including by filing documents in their joint names. In oral submissions, Ms Britten asserted that “this year” Mr Britten had signed 109 affidavits, all of which she had prepared for him. Regardless of whether that figure is correct, the submission confirms Mr Britten’s willingness to enable Ms Britten in connection with carrying on proceedings on his behalf.

137    To be clear, I am not simply attributing all of Ms Britten’s conduct to Mr Britten. I am, rather, assessing the reasonableness of Mr Britten’s conduct of the litigation in light of his knowledge that the proceeding had been commenced in his name, with his approval, and with the ability to appreciate what Ms Britten was doing in connection with the proceeding. As explained above, to commence the proceeding against at least some of the respondents and to pursue at least some of the claims was unreasonable. Mr Britten was, or ought reasonably to have been, aware that the manner in which Ms Britten was conducting the proceeding (including on his behalf) was unreasonable and vexatious. In all the circumstances, it seems to me appropriate to order that Mr Britten be required to pay the respondents’ costs of the proceeding on the same basis as Ms Britten.

138    For these reasons, it is also appropriate that Mr Britten be required to pay that part of the respondents’ costs for which he is to be liable on an indemnity basis.

Joint and several liability for costs

139    There is no sufficient reason to depart from the ordinary rule that the unsuccessful applicants should be jointly and severally liable for costs. I am conscious that the practical effect of this may be that Mr Britten may end up having to pay all or most of the respondents’ costs (although this is not clear, since there is no evidence of the financial position of the applicants). If so, this is the consequence of the usual position that joint parties who are unsuccessful in litigation should be jointly and severally liable for costs, and reflects the fact that costs are compensatory. It is also what a person who lends their name to litigation, in the understanding or hope that it is to be conducted on their behalf by another litigant in person who is an undischarged bankrupt, ought reasonably to expect in the event that the litigation is ultimately unsuccessful.

Costs should be ordered on a lump sum basis

140    Federal Court Costs Practice Note (GPN-COSTS) (Costs Practice Note) states (at [4.1]) that the preference of the Court is to fix costs in a lump sum where it is practicable and appropriate to do so. The basic principles applicable to the exercise of the Court’s discretion to order that costs be fixed in a lump sum were recently summarised by O’Brien J in Swancom Pty Ltd v Jazz Corner Hotel Pty Ltd (No 5) [2025] FCA 505 at [32]. His Honour’s summary included the following:

Rule 40.02(b) of the Federal Court Rules 2011 (Cth) (Rules) stipulates that a party entitled to costs may apply to the Court for an order that costs be awarded in a lump sum instead of, or in addition to, any taxed costs. The purpose of such a rule is “to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 … at 120. The assessment of costs under a lump sum order does not require a process similar to taxation: Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd [2008] FCA 1051; 249 ALR 371 (Ginos Engineers) at [23]. … While the assessment involves the “application of a much broader brush than that applied on taxation” and “is one of estimation or assessment and not of arithmetic calculation or precision”, the approach is one which must be “logical, fair and reasonable”: Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 at [8]. It is common for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs, and to discount that figure to take account of the acceptability of the charges made, the conduct of the proceeding and the measure of success on issues, to arrive at a figure which as a matter of judgment is neither over-compensatory nor prejudicial to the successful party: Ginos Engineers at [24]; Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2011] FCA 1463 at [5].

141    “There is no particular characteristic that a case must possess for it to be suitable for the making of a lump sum costs order”: Paciocco v Australia and New Zealand Banking Group Ltd (No 2) (2017) 253 FCR 403; [2017] FCAFC 146 at 407 [20]. One circumstance that may bear on whether a lump sum order is appropriate is where it may be unlikely that the costs (including the additional costs of a taxation) will be recovered: see, eg, Julien v Secretary, Department of Employment and Workplace Relations (No 2) [2009] FCA 1259 at [10]; McDonald v South Australia [2020] SASC 112 at [12].

142    Ms Britten opposes the making of any costs order on a lump sum basis. She contends that the quantum of the lump sums sought by the respondents is excessive. She submits that the respondents should not be permitted to recover costs for the same work twice, or for work “not reasonably connected with this Federal Court proceeding”.

143    There is, however, no basis to suggest that the costs identified in the affidavit evidence filed by the respondents include any double-counting of costs, or any costs that are not connected with the present proceeding. It is not surprising that the costs incurred by the respondents might be relatively high (for a proceeding that was discontinued shortly before the hearing of a summary dismissal application), having regard to:

(a)    the nature of the issues in the proceeding, the difficulty in understanding and responding to the applicants’ pleaded case;

(b)    the work necessary to respond, by way of both evidence and submissions, to the interlocutory injunction application;

(c)    the length and style of the written submissions filed by the applicants and the wide range of matters addressed therein;

(d)    the general way in which the proceeding has been conducted by Ms Britten (including, in particular, the matters referred to at [109]-[111] above); and

(e)    the fact that, in the case of the Lenders, there were three respondents with common representation but with different issues to be addressed in respect of each of them.

144    In this case, there are two principal reasons why it is appropriate to assess costs on a lump sum basis. The first is that, having regard to the manner in which Ms Britten has conducted the proceeding to date, there is reason to think that the process of taxation of costs is likely to be drawn out and unduly expensive, with a real risk of the resources of the parties and the Court being diverted by attempts to raise irrelevant or unarguable issues. As eBroker.com.au submits, even in the course of dealing with the costs applications, Ms Britten has demonstrated a tendency to delay the proceeding and the applicants have failed to comply with orders made by the Court, including those made to accommodate Ms Britten’s own requests for extended time to comply. Particularly where the applicants have in substance discontinued their claim without any determination being made on the merits, it is desirable that this proceeding now be brought to finality as efficiently as possible.

145    The second reason that supports the making of a lump sum costs order is that there is reason to believe that the respondents may experience difficulty recovering costs from the applicants. Mr Britten’s financial position is unclear. Ms Britten is an undischarged bankrupt, and her current bankruptcy arose as a result of her failure to pay a costs order made in another court proceeding. Neither of the applicants filed any evidence disclosing their financial circumstances. At the hearing of the costs applications, Ms Britten stated that she had recently received a substantial sum of money by way of a settlement. The actual sum was not disclosed, and she also appeared to suggest that those funds would not be available to meet an adverse costs order. These assertions were not supported by evidence. It is desirable that the amount of the costs orders be fixed without the respondents having to incur the further costs of a taxation which may well be practically difficult for them to recover.

Fixing the amount of the lump sums

146    In fixing the amount of a lump sum costs order, the Court may proceed on an evaluative basis and need not achieve the precision of a taxation. In Innes v AAL Aviation Ltd (No 2) [2018] FCAFC 130, the Full Court explained at [17]-[18]:

Many of the authorities have recognised that the starting point for the fixing of lump sum costs is the charges rendered by the costs applicant’s solicitors. However, the authorities also recognise that the costs fixed should be proportionate to the nature, including the complexity, of the case: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] (Kenny J). See also Hislop v Paltar Petroleum Ltd (No 4) [2017] FCA 1632 at [7] (Gleeson J).

Finally, we respectfully agree with the statement of Markovic J in Fewin v Burke (No 3) [[2017] FCA 693] at [61] that, in assessing quantum, “the Court is entitled to take into account the evidence that is before it; its own observations of the proceedings and the judge’s own assessment experience”. …

147    The respondents relied on affidavit evidence from their respective solicitors which identified the actual costs incurred by the respondents. That evidence explained the hourly rates charged and the solicitors who worked on the matters, the number of hours of work undertaken by each solicitor, and a breakdown, at a general level, of the kinds of work undertaken by them. I note that, in the case of the Lenders, the evidence is that more senior solicitors have charged all their work at the hourly rates that would normally be charged for the work of more junior solicitors. It is appropriate to act on the evidence of the solicitors as establishing the actual fees and disbursements for which the respondents are liable. While the solicitors have indicated that the costs they have identified are those which they regard as fair and reasonable, neither eBroker.com.au nor the Lenders adduced evidence from an independent expert in support of the reasonableness of the costs claimed. I am not critical of the respondents for not incurring the additional costs of obtaining evidence from an independent costs expert, but I shall take this limitation of the evidence into account.

148    eBroker.com.au seeks costs (on an indemnity basis) fixed in a lump sum of $68,035.28. This figure is based on the actual liability of eBroker.com.au for fees and disbursements in respect of the proceeding, but additionally incorporates a loading of $2,000 for skilled care and responsibility. However, as eBroker.com.au acknowledges, it would seem inappropriate to include such a loading if (as I have determined) costs are to be awarded on an indemnity basis. Accordingly, with respect to eBroker.com.au, it is appropriate to take, as a starting point, the amount of $66,035.28, being the total of the fees and disbursements actually charged to eBroker.com.au.

149    The Lenders seek costs (on an indemnity basis) fixed in a lump sum of $114,770.60. While the costs of the Lenders are substantially higher than those of eBroker.com.au, this partly reflects the number of issues raised, and the distinct positions of the three Lenders. It may also reflect the fact that the Lenders engaged senior counsel. The same counsel had previously appeared for Dynamic in another proceeding involving related claims made by Mr Britten (and in which Ms Britten had substantial involvement), having been briefed in that proceeding before his appointment as senior counsel. In those circumstances, and having regard to the range and nature of the issues involved, the additional costs resulting from the engagement of senior counsel should not be characterised as having been incurred unreasonably.

150    As explained above, Mr Britten should not be required to pay that part of the respondents’ costs attributable to the summary dismissal applications which were incurred after 14 May 2026 (when the proceeding was dismissed insofar as it was brought by Mr Britten). The evidence filed by the respondents does not separately identify the particular costs attributable to that period. Having regard to the fact that most of the respondents’ preparation for the hearing of the summary dismissal applications, including the filing of evidence and written submissions, was evidently completed prior to 14 May 2026, the distinct position of Mr Britten and Ms Britten is appropriately reflected in orders that $7,000 of eBroker.com.au’s costs and $10,000 of the Lenders’ costs be payable by Ms Britten alone, with all other costs in the proceeding to be payable by both Ms Britten and Mr Britten.

151    It has been said that, where costs are to be paid on an indemnity basis and a lump sum costs order is made, a successful party might typically expect to recover an amount that is less than its actual costs, by around 15%, reflecting the fact that only costs which are reasonably incurred are recoverable on an indemnity basis and that not all costs for which a party is actually liable would be likely to be recoverable on a taxation: see, eg, Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 at [56], [59]. This may be contrasted with the more significant reductions applied to establish a figure for party and party costs, which often range between 65% and 75%: see SunshineLoans Pty Ltd v Australian Securities and Investments Commission (No 2) [2025] FCAFC 60 at [19]; Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 7) [2017] FCA 1469 at [34]. I am also conscious that the Court “must be astute not to cause an injustice to the successful party” by applying “an arbitrary ‘fail safe’ discount on the costs estimate submitted to the court”: Frigger v Professional Services of Australia Pty Ltd (No 7) [2025] FCA 1639 at [6(5)].

152    The assessment of the reasonableness of the respondents’ costs must necessarily be considered in a broad-brush fashion. I consider that it is appropriate to apply a slightly greater reduction, in the order of 20%, so as to avoid the risk of Mr Britten and Ms Britten being unfairly required to pay costs fixed in too high an amount, including having regard to the fact that there is no independent evidence verifying the reasonableness of the costs, and to ensure that the costs for which they are liable are not disproportionate to the proceeding and the stage at which it was terminated.

153    In the result, I consider it appropriate to order that:

(a)    the costs of eBroker.com.au for which Ms Britten and Mr Britten are jointly and severally liable be fixed in the amount of $46,000;

(b)    the costs of eBroker.com.au for which Ms Britten alone is liable be fixed in the amount of $7,000;

(c)    the costs of the Lenders for which Ms Britten and Mr Britten are jointly and severally liable be fixed in the amount of $82,000; and

(d)    the costs of the Lenders for which Ms Britten alone is liable be fixed in the amount of $10,000.

154    To avoid doubt, the lump sums are inclusive of the costs of the interlocutory injunction application, which were the subject of the costs orders made on 18 February and 25 March 2026.

Conclusion

155    For the reasons explained above, it is appropriate to make the orders set out at the beginning of these reasons.

Associate:

Dated:    13 October 2026

SCHEDULE OF PARTIES