Late
payment fees of $A500,000 per week promised by George Kerr as a sweetener to
get a sixty day $A37 million short-term loan in 2012 for his financially
pressed Torchlight Fund were struck down by the High Court as an unenforceable
penalty after Australian businessman John Grill tried to recover fees of over
$A30 million for late payment.
Torchlight was set up by Mr Kerr in 2009
to invest in distressed assets.
Torchlight itself was in dire financial straits in mid-2012, up against
a repayment deadline to Bank of Scotland.
Raising equity was not an option; Mr Kerr was very much in the public
eye with the Financial Markets Authority looking into his business activities.
The High Court was told he turned to Mr
Andrew Skidmore, fomerly associated with Macquarie Bank in Sydney, to find short-term
funding. Evidence was given of Mr
Skidmore acting as go-between in negotiations between Mr Kerr and Mr John
Grill, a wealthy Australian engineer and founder of publicly-listed
WorleyParsons. Negotiations took a
little over two weeks, with Mr Skidmore providing written updates for Mr Kerr
to be presented to Bank of Scotland where repayment was already overdue. These updates were deliberately misleading,
designed to have the Bank think negotiations were closer to finality than they
in fact were. To get the deal over the
line, Mr Kerr suggested a late payment fee of $A100,000 per week be written
into the contract. Mr Grill countered
with a weekly late payment fee of one million, settling later on $A500,000.
After getting the $A37 million loan, Torchlight
defaulted on repayment due in October 2012.
It eventually made full repayment in tranches over the subsequent seven
months. Wilaci Pty Ltd, the corporate
vehicle used by Mr Grill, later sued for just over a further $A30 million claimed
payable on the late payment clause.
The courts do not enforce penalty clauses
in credit contracts if they bear no relation to the creditor’s expected losses,
but rather are designed to terrorise the debtor into making payment. Mr Grill had not used his own funds to
finance the Torchlight advance; he borrowed from Credit Suisse against his
WorleyParsons shares and was liable for interest on this advance.
Wilaci argued the late payments levied were
not a penalty, they were fees payable for a collateral agreement extending the
loan to Torchlight beyond sixty days.
Justice Muir rejected this argument.
There was no evidence of any agreement that the loan would be extended. He ruled the late payment clause was a
penalty, unrelated to Wilaci’s losses, and was unenforceable. There was evidence the weekly late payment
fee claimed from Torchlight was some fourteen times greater than the ongoing
interest payments Wilaci would be paying Credit Suisse.
Torchlight Fund was ordered to pay $1.18
million for fees incurred when Wilaci put it into receivership.
Torchlight
Fund v. Johnstone – High Court (19.10.15)
15.116