A lender who includes errors in mortgage documentation that are within its power to correct cannot rely on the borrower's failure to settle within a nominated period as a ground for withdrawing an offer of finance, where the contractual right to withdraw requires the failure to be for reasons outside the lender's control. An establishment fee that remains fixed at a level calculated on a much larger loan amount, without any demonstrated connection to the lender's legitimate commercial interests in the reduced transaction, may constitute a penalty when claimed as liquidated damages. Maxwell P's separate reasons leave open the question of what evidence is required to assess the penalty character of standard commercial fees charged by non-conforming lenders.
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