Event and Time
Event Description
On 1 February 2020, the Purchasers exchanged contracts with the Vendors to purchase a property in Sans Souci for $560,000. An agent, Sans Souci Developments Pty Ltd, was engaged to facilitate the sale. A contractual requirement mandated a 10% deposit, which was to be paid by cheque, not electronically. However, during the payment process, a fraudster intercepted communications and directed the Purchasers to send the deposit to a fraudulent account. The Vendors subsequently terminated the contract on grounds of non-payment of the deposit.
Application and Claims
The Purchasers sought interim relief to restrain the Vendors from dealing with the property, a declaration that the contract remained valid, and damages against the Agent for misleading or deceptive conduct. They claimed that the Agent was acting under the Vendors' authority when advising them to pay electronically, despite the contract's stipulations.
Judicial Decisions
The application for interim relief was refused. The court noted that the Agent had no authority, under the terms of the contract, to direct or facilitate any payment method other than via cheque. The Purchasers' claims were undermined by the lack of evidence that the Vendors had provided such authority to the Agent.
Dispute Points and Legal Basis
Dispute Points
- Purchasers’ Claims
- Alleged that the Agent's advice to pay the deposit electronically warranted that it was authorized by the Vendors. - Claimed misleading conduct under s 18 of the Competition and Consumer Act 2010 after suffering loss due to the deposit being lost to a fraudster. - Sought a declaration that their contract remained enforceable and compensation for damages due to the Agent's advice.
- Vendors’ Defense
- Asserted that the contract specifically required payment by cheque and that they had not authorized the Agent to direct payment via EFT. - Argued that they had no dealings with the Purchasers regarding payment and had no responsibility for the fraud committed.