31 May 2017

Peer-to-peer Lending: Commerce Commission v. Harmoney Ltd

Harmoney’s peer-to-peer lending is under investigation by the Commerce Commission for potential breaches of credit contracts legislation.
Harmoney challenged Commerce Commission requests for a High Court ruling over legal interpretation of peer-to-peer lending saying this was a disguised substitute for a potential prosecution.  Harmoney was prejudiced because any court hearing would not cover the full facts, it said.  Justice Courtney ruled the High Court enquiry could look at who were the parties to any peer-to-peer credit contract and whether the “platform fee” received by Harmoney is a credit fee governed by the Credit Contracts and Consumer Finance Act.   
Peer-to-peer lending is currently regulated by the Financial Markets Conduct Act.  This serves to protect investors putting up the cash; not borrowers receiving peer-to-peer loans.  Investors register online and deposit cash into a trust account controlled by Harmoney.  Borrowers also register online.  They are assigned an interest rate after an assessment of their individual risk profile.  Investors nominate which borrowers they will support.  When an order is filled, investor funds are packaged together and transferred to a trustee for delivery to the borrower.  A “platform fee” is deducted by the trustee and paid to Harmoney before handing over the balance to the borrower.
The Commerce Commission is seeking to identify, as a matter of law, who is the creditor making the loan in peer-to-peer lending.  Creditors must comply with credit contracts legislation.
Commerce Commission v. Harmoney Ltd – High Court (31.05.17)

17.059