The case of Long & Anor v Hijazi [2017] QDC 187 provides an illustration of a contractual dispute between the purchaser and the vendor in the context of real estate sale caused by the transfer of deposit through Electronic Fund Transfer (EFT). The main legal issue brought before the court was whether the purchasers were in breach of their contractual obligation to pay the deposit on the day of acceptance of contract notwithstanding the impracticality associated with moving funds from an account to another in less than one business day.

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BACKGROUND AND FACTS

The parties entered a contract for sale of a residential property located in Queensland. The plaintiffs were the purchasers under the contract and the defendant was the vendor.

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The reference schedule of the contract provided the deposit to be paid "on the day the buyer signs this contract unless another time is specified below". The words below were "acceptance of contract" - namely, acceptance of purchasers' offer by the vendor. The contract made provision for the deposit to be paid by EFT as the BSB and account number of the deposit holder were included.

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The purchasers were informed of the vendor's acceptance of their offer on 19 October 2016 at 2.08 pm and subsequently electronically transferred the deposit to the nominated trust account at 8.30 pm. However, the deposit was received into the trust account the following business day, 20 October 2016.

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On 21 October 2016, the vendor's conveyancer advised the purchasers by email that purchasers were in breach of the contract due to not paying the deposit on the very day the contract was accepted and on that ground the vendor terminated the contract.

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On 25 October 2016, the purchasers' conveyancer informed the vendor's conveyancer that purchasers deny the breach and assert that the contract was still on foot. On the same day, the vendor's conveyancer responded that the vendor agrees that the contract was still on foot and that she withdraws her termination. Later that day, the vendor's conveyancer wrote a without prejudice email to the purchasers' conveyancer advising that the vendor could no longer proceed with the contract because she would suffer financial hardship if she proceeded, and thus will not settle.

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The purchasers brought an action for a claim for specific performance and damages against the vendor at the District Court of Queensland.

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MAIN ARGUMENTS

The vendor, on the ground that the deposit did not reach the trust account on the day of "acceptance of contract", argued that the purchasers were in breach of the contract.

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On the other hand, the purchasers argued that they were not in breach of the contract since they had paid the deposit on the day of acceptance and that the time which the deposit was received was out of their hands and in control of the banking system.

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The vendor relied on a High Court authority of Brien v Dwyer (1978) 141 CLR 378 for the proposition that the earliest practical time for payment of the deposit after communication of acceptance on 19 October 2016 was that afternoon.

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In Brien v Dwyer, the purchaser was required to pay the deposit "upon the signing" of the contract. The majority (Barwick CJ, Gibbs and Aicken JJ) was of opinion that the deposit should have been paid at the time the offer was signed by the purchaser for transmission to the vendor.

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In response to this, the purchasers in the present case argued that the contract in question was distinguished from Brien v Dwyer since the deposit was payable "on the day" the contract was accepted rather than "upon" or "on" acceptance.

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The purchasers further argued that since they would have no idea when exactly the vendor accepted the contract, requiring payment of deposit in a simultaneous manner with acceptance would be absurd.

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Furthermore, the purchasers pointed out the view espoused by Jacobs and Stephen JJ in Brien v Dwyer that the deposit should be paid at the earliest practicable time after acceptance. The purchasers also drew attention to Queensland Supreme Court's decision of Hill v Sidney 2 Qd R 547 in which de Jersey J found that the requirement that the deposit be paid "forthwith" upon execution of the contract by a purchaser should be read as meaning "as soon as reasonably practicable" and envisage "speed rather than tardiness".

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DECISION

The Court ruled in favour of the purchasers. It held that the purchasers were "ready, willing and able" to complete the contract and indicated that by the payment of the deposit on the evening of 19 October 2016 which was the day the vendor accepted the contract. Accordingly, the Court rejected the vendor's argument that the deposit was not made in accordance with the contract and thus ordered specific performance.

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SOLOMONS LEGAL'S INSIGHT AND SUGGESTIONS

However, Judge Dick's decision does not specifically address the question of whether a deposit should be deemed to have been paid on the date the purchaser transfers the fund from their account or on the date the deposit holder receives the money in their trust account. Whilst answering this specific question was not at the heart of the decision, it is still important to consider this issue considering future transactions where deposits are likely to be transferred by electronic means given the continuing advancement of technology.

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The key takeaways from this case are:

1. When parties enter any sale transactions, they must ensure the language used in describing the timing of deposit payment is unambiguous.

2. If parties come to contemplating deposit payment by EFT, they should allow sufficient time for electronic payment to proceed through the banking system and land into the nominated trust account before the due date.

3. The purchaser could provide the vendor with a receipt of transmission of the funds as payment of the funds for the deposit. Alternatively, parties could include this as part of the conditions in the deposit clause to avoid ambiguity from the initial stage.

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DISCLAIMER

This article does not create a Client/Attorney relationship neither is it a legal advice. The information contained in this article is for information purposes only. Readers are advised to seek from qualified Legal Practitioners, legal counselling to any questions or concerns arising from their specific factual situation. You can reach Solomons Legal at info@solomonslegal.com.au or +61 7 3117 9433 and our team will be happy to assist and advise you with your house purchase process.

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