Berhero Pty Ltd (trading as Acuity Funding) v Dinsey

Berhero Pty Ltd, trading as Acuity Funding, filed a suit against Dinsey in the Federal Circuit and Family Court of Australia. The dispute concerns the refund of a processing fee paid to Acuity Funding by Dinsey. Dinsey paid Acuity Funding a processing fee for loan services, but later sought a refund on the grounds that the loan was not processed. The primary decision ordered the refund, and Acuity Funding sought leave to appeal this decision.

The primary issue before the court was whether the primary decision ordering the refund was correctly made. Specifically, the court needed to determine if the processing fee was refundable due to the total failure of consideration. Additionally, the court had to decide if the processing fee was refundable if the recipient defaulted, leading to a total failure of consideration, and if the moneys had and received by the broker were to the use of the applicant client. The court also needed to consider whether leave to appeal should be granted.

In its reasoning, the court held that the primary decision was not in error. The court found that the processing fee was not refundable due to the total failure of consideration. It also found that the fee was not refundable in the event of default by the recipient, and that the moneys had and received by the broker were not to the use of the applicant client. Consequently, the court refused leave to appeal, upholding the original decision not to order a refund.