Protecting Broker’s Rights

At Semper, we are long-time advocates for regulatory change in the private lending space. We are equally as committed to protecting Broker’s rights to payment of fees when work has been undertaken and an application fails due to misrepresentation or when the applicant withdraws at the last minute.

We recently defended these rights for Semper and the applicant’s Broker in court. In this case the applicants had imposed an almost impossible deadline by seeking a settlement within 2 weeks before Christmas to finalise a business acquisition.

The applicants were developers with considerable experience as commercial borrowers but were indecisive about how they wanted the loan to be structured against their primary residences. Their broker, Andrew Hewlett of Australian Commercial Finance, went above and beyond to negotiate with Semper on behalf of his clients to get them the best deal possible. Semper was commercial and worked with the broker to issue multiple term sheets, the fifth of which was agreeable to the client.

Upon acceptance of our offer and payment of our application fee, Semper arranged urgent valuations, completed its due diligence, secured investment and issued legal documents. Funds were transferred to trust for settlement.

At the 11th hour the borrowers withdrew from the loan, and subsequently brought proceedings against Semper in the Supreme Court of Queensland, claiming unfair contract terms under The ASIC Act 2001 (Cth).

Semper counterclaimed for its 2.2% Establishment Fee, including seeking payment of the Broker’s 1.25% Fee. Mr Hewlett had worked diligently for his client and supported the process of application flawlessly -it was only right he be recompensed.

After a two-day hearing, the judge found in favour of Semper on all counts and orders were made for the payment of fees.

 The following lessons for brokers can be drawn from this case:

1. Broker’s fees are best preserved via a Mandate agreement between the broker and applicant, with fees clearly explained as to what they are for, how they are calculated and when they are due.
2. It is important to keep written records of verbal exchanges. You never know when these might be needed.
3. Brokers should issue a tax invoice to the applicants for their fees and present a copy to the lender prior to settlement.
   
   

We suggest brokers seek advice from their lawyers as to changes that might be necessary to their mandate agreements following ASIC’s November 2023 reforms to Unfair Contract Terms (UCT) and the findings of this case.

For more information on this case please see https://www.queenslandjudgments.com.au/caselaw/qsc/2024/120