Is a Brokerage Fee Payable Upon Acceptance of a Prospective Approval Indication Regardless of Loan Outcome, and Does Such a Clause Constitute an Unenforceable Penalty?

Non-Bank Construction Finance “Prospective Approval” Fees: When Does a Brokerage Fee Become Payable Even If No Loan Settles, and Why Is the Clause Not a Penalty?

Based on the authentic Australian judicial case Union Fidelity Finance (Aust.) Pty Ltd v Renauf [2025] NSWSC 356, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales, Equity Division, Real Property List :contentReference[oaicite:1]{index=1}

Presiding Judge: Pike J :contentReference[oaicite:2]{index=2}

Cause of Action: Claim for contractual brokerage fee under a “Prospective Approval Indication” contract, and associated caveatable charge issues :contentReference[oaicite:3]{index=3}

Judgment Date: 15 April 2025 :contentReference[oaicite:4]{index=4}

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Contract construction

Keyword 3: Brokerage fee

Keyword 4: Caveatable charge and caveat practice

Keyword 5: Relief against penalties

Keyword 6: Non-bank lending market

Background

The First Plaintiff and Second Plaintiff operated in the non-bank, non-conforming lending market. Their business model was to connect borrowers who could not obtain bank finance with lenders willing to consider funding higher-risk transactions. In practical terms, their work involved identifying a lender, progressing preliminary pricing discussions, and moving the borrower into the lender’s formal credit process. :contentReference[oaicite:5]{index=5}

The Defendant owned a property being redeveloped and sought significant construction finance. A written document described as a “Prospective Approval Indication” was issued and then accepted by the Defendant. A dispute followed when the contemplated loan did not proceed, but the First Plaintiff demanded payment of a substantial brokerage fee said to be payable “regardless of whether the loan proceeds or not”. :contentReference[oaicite:6]{index=6}

Importantly, this chapter does not reveal the outcome. It frames why the matter became litigation: the parties disagreed about when fees crystallise in a non-bank finance pipeline, and whether a “pay even if no loan” clause is enforceable.

Core Disputes and Claims

The Court distilled the case into three ultimate questions:

The proper construction of the Prospective Approval Indication provisions governing payment of the brokerage fee where no loan was ultimately advanced. :contentReference[oaicite:7]{index=7}
Whether, on the facts that eventuated, the brokerage fee was payable in accordance with the contract as properly construed. :contentReference[oaicite:8]{index=8}
Whether the “pay regardless” clause was unenforceable as a penalty. :contentReference[oaicite:9]{index=9}

Relief sought by the Plaintiffs included: judgment for a substantial fee, declaratory relief that the property was charged as security for that fee, and orders facilitating caveat protection of that alleged charge. :contentReference[oaicite:10]{index=10}

The Defendant’s central positions were: no fee was payable unless formal loan approval was granted; alternatively, the lender withdrew without borrower default so no fee was payable; alternatively, the clause was a penalty. :contentReference[oaicite:11]{index=11}

Chapter 2: Origin of the Case

Content: How a Borrowing Plan Becomes a Legal Problem

The narrative began in a familiar commercial setting: a borrower planning a redevelopment, needing a lender willing to take on complexity, speed, and risk. Through a broker, the Defendant approached the Plaintiffs with a proposal that included headline numbers and development materials. The Plaintiffs then began the typical aggregator tasks: requesting further information, preparing indicative feasibility inputs, and approaching potential lenders to test appetite. :contentReference[oaicite:12]{index=12}

The lender engagement shows a key practical feature of this market: early “ballpark” pricing discussions occur before full diligence. A lender may express willingness to proceed subject to valuation, builder scrutiny, quantity surveyor costing, and credit committee review. The documentary trail recorded lender insistence on risk controls such as a fixed price building contract, plus ongoing concerns about valuation evidence. :contentReference[oaicite:13]{index=13}

The “Prospective Approval Indication” document was then issued and accepted, with the Defendant paying an upfront processing fee as part of acceptance mechanics. :contentReference[oaicite:14]{index=14}

Detail Reconstruction: Relationship, Money, and Friction Points

What financially intertwined the parties was not a loan advance, but a pipeline transaction:

The Plaintiffs introduced and progressed the Defendant into the lender’s process. :contentReference[oaicite:15]{index=15}
The contract asserted that, upon acceptance, the brokerage fee and disbursements were payable regardless of whether the loan proceeds. :contentReference[oaicite:16]{index=16}
A “caveatable charge” clause purported to charge the Defendant’s land to secure amounts due and authorised lodgement of a caveat upon default. :contentReference[oaicite:17]{index=17}

Commercially, this resembles paying for an introduction and a committed funding pathway, not paying for a settled loan. That difference becomes critical when the loan stalls.

Conflict Foreshadowing: The Decisive Moments

The conflict emerged when lender diligence questions escalated, particularly around the GST position on the contemplated sale and the demand for a GST clearance certificate. The lender required more comfort than a brief accountant letter. The broker then communicated that the Defendant would not proceed, citing inability to provide the requested certificate and looming loan maturity pressures. :contentReference[oaicite:18]{index=18}

The chronology that mattered legally was blunt: the Defendant withdrew the application first, and the lender later confirmed it would not proceed. :contentReference[oaicite:19]{index=19}

That sequence set up the core legal fight: was non-progression a lender decision (which might fit the “no further brokerage fees” carve-out), or a borrower election or inability (which would keep the fee payable)?

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

Evidence relied upon by the Plaintiffs was largely documentary:

The Prospective Approval Indication contract itself, including the “Conflict” section and the clause stating: “Payment of Fees regardless of whether the loan proceeds or not”. :contentReference[oaicite:20]{index=20}
The schedule identifying the brokerage fee amount and the payment mechanics. :contentReference[oaicite:21]{index=21}
Email chronology showing lender conditions, discussions about valuation, and the GST clearance certificate requirement. :contentReference[oaicite:22]{index=22}
The broker’s withdrawal email stating the client decided not to proceed due to inability to provide the GST clearance certificate and time constraints. :contentReference[oaicite:23]{index=23}

Core argument: the contract, read as a whole, made the brokerage fee payable upon acceptance unless the lender withdrew under its discretion without any borrower inability or unwillingness to proceed. :contentReference[oaicite:24]{index=24}

Respondent’s Main Evidence and Arguments

The Defendant relied on:

The contract’s repeated references to “loan approval” to argue that “pay regardless” operated only after formal approval. :contentReference[oaicite:25]{index=25}
The lender’s later email stating it could not proceed, said to support that non-progression was lender withdrawal rather than borrower default or election. :contentReference[oaicite:26]{index=26}
The penalty doctrine: the brokerage fee was characterised as collateral, in terrorem, and extravagant relative to any legitimate measure. :contentReference[oaicite:27]{index=27}

Core Dispute Points

What “loan” and “loan approval” meant in the Prospective Approval Indication: a formal loan approval, or the prospective approval process described in the document. :contentReference[oaicite:28]{index=28}
Whether the second carve-out in clause (c)(ii) applied: lender withdrawal without borrower default notice, or borrower election/inability. :contentReference[oaicite:29]{index=29}
Whether the penalties doctrine applied at all to the brokerage fee clause, and if so, whether it was penal. :contentReference[oaicite:30]{index=30}

Chapter 4: Statements in Affidavits

Content: How Affidavits Frame Facts Into Law

Although the dispute was heavy on documents, the litigation still required parties to stitch the chronology into admissible form. The persuasive task in affidavit drafting here is predictable:

The Plaintiffs needed a clean narrative that their work product was the introduction and progression into lender consideration, and that acceptance of the Prospective Approval Indication triggered fee liability. :contentReference[oaicite:31]{index=31}
The Defendant needed to frame the non-progression as lender-driven, not borrower-driven, and to characterise the brokerage fee clause as punitive rather than bargained-for remuneration for services. :contentReference[oaicite:32]{index=32}

A common affidavit battleground in cases like this is “who pulled the plug first” and “why did the plug get pulled”. Here, the chronology materially favoured a finding that the borrower withdrew first. :contentReference[oaicite:33]{index=33}

Strategic Intent: Procedural Direction Logic

The case moved quickly and was heard on a final basis without pleadings. That procedural shape forces affidavits to do extra work: they become the structured substitute for pleaded issues, crystallising the contractual questions and the key chronology. :contentReference[oaicite:34]{index=34}

Chapter 5: Court Orders

Content: Procedural Arrangements Before Final Hearing

The dispute began with caveat urgency. The Court made consensual arrangements that removed the initial caveat but permitted a further caveat to be filed in the same interest. A second caveat was then registered. :contentReference[oaicite:35]{index=35}

At the conclusion, the Court directed the parties to confer and seek to agree final orders giving effect to the reasons, including interest and costs, and required proposed agreed or competing orders and submissions by specified dates. :contentReference[oaicite:36]{index=36} :contentReference[oaicite:37]{index=37}

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Perspective: Objective Third-Party Perspective

This was a documentary contest. The hearing proceeded without witnesses being cross-examined. :contentReference[oaicite:38]{index=38} That procedural fact matters: when there is no cross-examination, the Court’s reasoning often turns on text, chronology, and commercial sense.

Process Reconstruction: Live Restoration

The “courtroom drama” here occurred on the page, not in the witness box:

Counsel argued about grammatical meaning and how commercial contracts are construed as a whole, with context and purpose informing meaning but not displacing clear language. :contentReference[oaicite:39]{index=39}
The Defendant pressed that “loan approval” meant formal approval and that the fee should not crystallise without it. :contentReference[oaicite:40]{index=40}
The Plaintiffs pressed the opposite: the Prospective Approval Indication is itself the relevant commitment point, and the carve-out only applies where lender withdrawal occurs without borrower inability or unwillingness. :contentReference[oaicite:41]{index=41}

Core Evidence Confrontation

Two pieces of evidence did the heavy lifting:

The contract clause stating that on acceptance the brokerage fee is payable regardless of whether the loan proceeds. :contentReference[oaicite:42]{index=42}
The chronology showing borrower withdrawal before lender confirmation, and the withdrawal being linked to the inability to provide the GST clearance certificate. :contentReference[oaicite:43]{index=43} :contentReference[oaicite:44]{index=44}

Those two items make it difficult to characterise the non-progression as a lender withdrawal without borrower default-related causation.

Judicial Reasoning: How Facts Drove the Result

The Court approached clause construction by focusing on the plain meaning of clause (c)(i) and then reading clause (c)(ii) harmoniously. The Court held that the carve-out was narrow and was confined to a scenario where the lender withdraws under its discretion and there is no borrower inability or unwillingness to proceed. :contentReference[oaicite:45]{index=45}

The Court then applied the chronology and concluded that the borrower was first to withdraw and that the lender’s later decision was likely in circumstances connected to the borrower’s inability to provide the required certificate. :contentReference[oaicite:46]{index=46}

Judicial Original Quotation Principle: Determinative Dictum

“To be clear, if the Borrower, having accepted the PAI, decides not to proceed with the proposed loan, the Brokerage Fee is payable. If the reason why the Borrower does not wish or is unable to proceed is because the Borrower is unable or unwilling to comply with a term imposed by the Lender, the Brokerage Fee is payable.” :contentReference[oaicite:47]{index=47}

This statement was determinative because it collapses the dispute into a simple decision tree. Once acceptance occurred, the only escape route was the narrow lender-withdrawal scenario without borrower inability or unwillingness. The facts did not fit that carve-out.

Chapter 7: Final Judgment of the Court

Content: Orders and Directions

The Court held that the Plaintiffs succeeded and that the First Plaintiff was entitled to judgment for the sum sought, plus pre-judgment interest. :contentReference[oaicite:48]{index=48}

The Court directed the parties to confer and attempt agreed final orders to give effect to the reasons, including interest and costs, with timetabled steps for providing proposed agreed or competing orders and submissions. :contentReference[oaicite:49]{index=49}

The cover sheet recorded the operative directions in similar terms, including timetables for submissions on remaining issues. :contentReference[oaicite:50]{index=50}

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis: Jurisprudential Value and Unusual Aspects

This decision’s jurisprudential value is its practical clarification of how “prospective approval” style finance documents operate in a non-bank market. The Court treated the fee as remuneration triggered by acceptance of the pathway, not by settlement of the loan. That is commercially significant because it aligns contractual risk allocation with the service provided: introduction and commitment into the lender’s approval pipeline.

It also clarifies the penalty doctrine boundary in a context where the fee is large and payable even if the loan never settles. The Court concluded that the penalty doctrine was not engaged because the contract did not impose an additional detriment upon failure of a primary obligation to proceed; rather, it made the fee payable upon acceptance. :contentReference[oaicite:51]{index=51}

Judgment Points: 8 In-depth Victory Points

Define the transaction as an introduction and commitment, not a funded loan contract
The Court characterised the Prospective Approval Indication as an agreement that the Plaintiffs had identified a lender willing to consider approving the requested loan on particular terms, with the lender retaining discretion to amend or impose new conditions. :contentReference[oaicite:52]{index=52}
This framing matters because it sets the “service delivered” at the moment of introduction and acceptance, not at settlement.
Start with grammar and structure, then test coherence across the whole document
The Court emphasised that clause construction begins with literal meaning, then legal meaning, then an iterative process that checks competing meanings against the rest of the document and commercial consequences. :contentReference[oaicite:53]{index=53}
The Plaintiffs’ reading preserved internal coherence: clause (c)(i) states “pay regardless”, clause (c)(ii) creates a narrow carve-out.
Treat “loan approval” language as referring to the prospective approval process where context supports it
The Defendant’s argument depended on reading “loan approval” as formal lender approval. The Court rejected that because it was inconsistent with clause (c)(i)’s clear text and because the broader context was a document expressly not constituting a lender’s formal offer. :contentReference[oaicite:54]{index=54}
Practically, this shows courts will resist importing an external “formal approval” requirement when the contract’s mechanism is acceptance of an indicative pathway.
Read the carve-out narrowly: lender withdrawal without borrower inability or unwillingness
The Court held that the second part of clause (c)(ii) is confined to situations where the lender withdraws under its discretion and there is no borrower inability or unwillingness to go ahead. :contentReference[oaicite:55]{index=55}
This is a “tight gate”: it protects borrowers where a lender simply walks away for its own reasons, but not where the borrower cannot meet lender conditions.
Win on chronology: withdrawal timing is legal causation in contract disputes
The decisive factual finding was that the borrower withdrew the application first, before the lender’s later message that it could not proceed. :contentReference[oaicite:56]{index=56}
That timing aligns with the contract’s risk allocation: the fee remains payable where non-progression is anchored in borrower election or inability.
Treat inability to provide a demanded document as borrower inability to comply with lender terms
The broker’s withdrawal cited inability to provide a GST clearance certificate, a lender requirement. :contentReference[oaicite:57]{index=57}
On the Court’s construction, that is squarely within “unable or unwilling to comply with a term imposed by the Lender”, leaving the fee payable. :contentReference[oaicite:58]{index=58}
Keep the penalty doctrine in its proper lane: identify the primary stipulation and the timing of the detriment
Even though the Defendant argued the fee was “in terrorem” and extravagant, the Court held that the Prospective Approval Indication did not impose a primary obligation to proceed with the loan and that the clause did not impose an additional detriment upon failure; the fee was payable on acceptance. :contentReference[oaicite:59]{index=59}
This is a critical lesson: a clause that fixes consideration for entry into a process is analytically different from a clause that punishes breach of a promise to do something.
Preserve property security tools where the contract purports to create a charge
The dispute arose in a caveat setting. The contract included a caveatable charge clause authorising caveat lodgement on default. :contentReference[oaicite:60]{index=60}
Once the Court determined the brokerage fee was payable, it considered there was little utility in determining caveat validity disputes because the Defendant accepted that, if the fee was payable, the Plaintiff could lodge a fresh caveat. :contentReference[oaicite:61]{index=61}
This is a strategic reality: liability findings can render procedural caveat disputes less important than costs.

Legal Basis: What Principles and Authorities Were Applied

The Court applied orthodox commercial contract construction principles, emphasising reasonable businessperson meaning, text-context-purpose, and businesslike interpretation that avoids commercial nonsense. :contentReference[oaicite:62]{index=62}

On penalties, the Court referred to the High Court’s reframing in Andrews v Australia and New Zealand Banking Group Ltd and Paciocco v Australia and New Zealand Banking Group Ltd, and to NSW appellate guidance in Arab Bank Australia Ltd v Sayde Developments Pty Ltd and Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd. :contentReference[oaicite:63]{index=63}

Evidence Chain: Conclusion = Evidence + Legal Meaning

Evidence: the contract clause made the brokerage fee payable on acceptance regardless of whether the loan proceeds. :contentReference[oaicite:64]{index=64}
Evidence: lender imposed additional requirements, including the GST clearance certificate issue, and the borrower withdrew citing inability to provide it and timing pressure. :contentReference[oaicite:65]{index=65}
Finding: borrower withdrew first. :contentReference[oaicite:66]{index=66}
Legal meaning: carve-out only applies where lender withdraws without borrower inability or unwillingness. :contentReference[oaicite:67]{index=67}
Conclusion: fee payable.

Judicial Original Quotation Principle: Penalty Doctrine Determination

“The PAI does not impose any obligation on the Borrower to proceed with the proposed loan. Clause (c)(i) does not impose an additional detriment on the Borrower. It is payable on acceptance of the PAI. The penalty doctrine is not engaged.” :contentReference[oaicite:68]{index=68}

This passage is determinative because it answers the threshold penalties question. Before debating whether the amount is extravagant, the Court identified that the clause is not a collateral punishment for failure of a primary obligation to proceed. It is consideration payable for accepting the prospective approval pathway.

Analysis of the Losing Party’s Failure

The Defendant’s case failed for four interlocking reasons:

Construction mismatch: the attempt to make “formal loan approval” a condition precedent conflicted with the clear words “payable regardless” and the document’s character as not being a lender’s formal offer. :contentReference[oaicite:69]{index=69}
Chronology mismatch: the borrower withdrew first, undermining the lender-withdrawal carve-out. :contentReference[oaicite:70]{index=70}
Causation framing: inability to satisfy a lender requirement was treated as borrower inability to comply with a lender-imposed term, which keeps the fee payable under the Court’s construction. :contentReference[oaicite:71]{index=71}
Penalty threshold failure: the Court held the penalty doctrine was not engaged because there was no additional detriment imposed upon failure of a primary stipulation to proceed; the fee was payable on acceptance. :contentReference[oaicite:72]{index=72}

Implications: 5 Practical Legal Lessons for the General Public

“Acceptance” can be the payment trigger, not “success”
In commercial life, many fees are paid for access, introductions, or a committed process. If you sign a document that says a fee is payable on acceptance, the law often treats that as the bargain, even if the bigger deal never closes.
Read carve-outs as carefully as the main promise
A single sentence exception can be the whole case. Here, the difference between borrower-driven non-progression and lender-driven withdrawal decided six figures.
Your email timeline is your evidence
Courts reconstruct reality from documents. The moment you instruct “we are withdrawing” can fix the legal label of what happened.
Big numbers do not automatically mean “penalty”
The penalty doctrine is not a general fairness review. The legal question is structural: is the clause punishment for failing a primary obligation, or payment for the bargain you accepted?
Property security tools escalate disputes quickly
When a contract asserts a charge over land and authorises caveats, the dispute can move from an invoice to urgent litigation. If a document mentions a caveatable charge, assume the risk is relatively high and seek advice before signing.

Q&A Session

Q1: If the lender later says “we will not proceed”, does that automatically mean the borrower pays nothing?
A: Not necessarily. The legal effect depends on the contract’s carve-outs and the facts. If the borrower has already withdrawn, or if non-progression is linked to borrower inability to satisfy lender requirements, the carve-out may not apply. :contentReference[oaicite:73]{index=73} :contentReference[oaicite:74]{index=74}

Q2: Can a clause that demands a large fee even when no loan settles be challenged as unfair?
A: The relevant legal frame in this case was the penalties doctrine. The Court held it was not engaged because the fee was payable on acceptance and was not an additional detriment for failure of a primary obligation to proceed. :contentReference[oaicite:75]{index=75} Other doctrines may exist in other cases, but outcomes tend to be highly fact-specific.

Q3: Why did caveats matter if the case was really about a fee?
A: Because the Plaintiffs asserted a charge over land and used caveat practice to protect it. Once the Court found the fee payable, the utility of litigating caveat validity reduced, particularly as the Defendant accepted a fresh caveat could be lodged if liability existed. :contentReference[oaicite:76]{index=76}

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Commercial Finance Services Dispute: Prospective Approval Indication Brokerage Fee and Caveatable Charge

Judgment Nature Definition

Final judgment on liability for the brokerage fee, with remaining issues such as interest and costs to be resolved by agreed or further submissions. :contentReference[oaicite:77]{index=77}

2. Self-examination of Core Statutory Elements

⑨ Civil Litigation and Dispute Resolution

Core Test Standards: Jurisdiction, Time, and Proof

Jurisdiction
- Identify whether the Court has jurisdiction over the dispute and the associated property relief.
- Where the dispute concerns a purported charge over land and caveat practice, equity and real property list processes may be engaged.
- Risk note: jurisdictional analysis tends to be determinative at an early stage; however, it is relatively common for contractual and equitable relief to be pursued together in the same proceeding.
Limitation Period
- Determine the limitation period applicable to contract debt claims and whether proceedings were commenced in time.
- Risk note: limitation questions tend to be determined strictly, but can vary by cause of action and jurisdictional statute; the practical risk is relatively high where parties delay after a demand is made.
Pleadings and Issues Identification
- Even in urgent matters proceeding without pleadings, ensure issues are crystallised: contract construction questions, factual causation questions, and any equitable doctrine questions. :contentReference[oaicite:78]{index=78}
- Risk note: failure to identify issues tends to weaken the evidentiary case and can affect costs.
Evidence and Disclosure Discipline
- Build a chronology supported by primary documents: emails, signed agreements, payment receipts, and demand notices.
- The party alleging a contractual trigger event should prove it on the balance of probabilities.
- Risk note: where the dispute turns on who withdrew first, incomplete email chains tend to be a high-risk evidentiary gap.
Relief Selection and Strategy
- Monetary judgment: prove debt under contract.
- Declaratory relief: where security interests such as charges are asserted.
- Interlocutory and protective steps: caveats or injunctions, with undertakings and costs risk.
- Risk note: protective steps can be effective but tend to elevate costs exposure if found unjustified.

3. Equitable Remedies and Alternative Claims

Promissory / Proprietary Estoppel

Was there a clear and unequivocal promise or representation by one party that fees would only be payable on settlement or on formal approval?
Did the other party act in detrimental reliance on that promise, such as abandoning alternative finance pathways or incurring specific costs?
Would it be unconscionable for the promisor to resile from the representation?
Result reference: even without a modified written contract, equity may, in appropriate cases, restrain inconsistent conduct.
Risk note: estoppel claims tend to be fact-intensive; success is relatively sensitive to documentary clarity.

Unjust Enrichment / Constructive Trust

Has one party received a benefit at the other’s expense without juristic reason?
In a fee dispute, the existence of an express contract tends to be a strong juristic reason, making unjust enrichment relatively difficult, but not impossible in exceptional circumstances.
Risk note: unjust enrichment pathways tend to be secondary and are relatively high risk where an enforceable contract governs the field.

Procedural Fairness

Where proceedings move quickly without pleadings, ensure procedural fairness through adequate notice of issues and opportunity to respond.
Risk note: procedural fairness arguments tend to be strongest where surprise issues are determined without opportunity to address them.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Limitation period compliance for contractual debt recovery.
Jurisdictional foundation for land-related declaratory relief and protective steps.
Evidence sufficiency: coherent documentary chain proving acceptance, trigger events, and causation.

Exceptional Channels

Where limitation periods are in issue, consider whether any statutory extension regime applies, noting extensions tend to be narrowly construed.
Where urgent protective relief is sought, consider whether undertakings as to damages and proportionality concerns may affect relief.
Suggestion: do not abandon a potential claim solely because procedure seems complex; exceptional pathways sometimes exist, but they tend to require strong evidence and careful framing.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions involving:

Construction of commercial contracts where “pay regardless of whether the loan proceeds” language is used, especially in non-bank lending contexts. :contentReference[oaicite:79]{index=79}
Threshold engagement of the penalties doctrine where an obligation is characterised as payable on acceptance rather than on breach. :contentReference[oaicite:80]{index=80}

Citation Method

As Positive Support:
– Where your matter involves a signed “prospective approval” or “mandate” document and a borrower later withdraws, this authority can support a construction that fees crystallise on acceptance, with carve-outs construed narrowly by reference to text and commercial coherence.

As a Distinguishing Reference:
– If the opposing party cites this case, emphasise factual differences such as: a lender withdrawing for reasons unrelated to borrower conduct; clear evidence that the borrower did not withdraw first; materially different fee mechanics; or an express promise that fees are only payable on settlement.

Anonymisation Rule

In any publication, do not use real names of parties. Use procedural titles such as Plaintiff / Defendant.

Conclusion

This case shows how Australian courts can enforce commercial allocation of risk in non-bank finance pipelines: if a borrower accepts a prospective approval process on terms that a brokerage fee is payable on acceptance, the Court may enforce that bargain even where the loan never settles, and may reject penalty arguments where the fee is not an additional detriment for breach but the price of entry into the process. :contentReference[oaicite:81]{index=81}

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Union Fidelity Finance (Aust.) Pty Ltd v Renauf [2025] NSWSC 356), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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