A contract signed up for the residence in Sydney’s Botany Bay on February 1 2020 required full payment of the deposit within 12 days. At the agent’s suggestion, buyer Esthar Doe paid the initial deposit by EFT which was duly received into the agency’s trust account.
The sales agent – in emailing a reminder to her buyers of the balance deposit payment deadline – suggested it too be be paid by that means and again provided the agency trust account BSB and account number.
The buyers received a further email on 9 February enclosing an invoice for the balance of the deposit and specifying again the BSB and account number to which the funds should be transferred.
That email purported to be from our diligent sales agent, Kathy Caruana, but in fact was sent by a cyber thief who substituted their own BSB and account number into which the buyers unsuspectingly transferred the $54.6k balance deposit on the $600k buy.
The thief had been ‘ghosting’ the agent’s email traffic awaiting an opportunity to entice an electronic payment from a target such as our luckless buyer, to their own account by communicating via an email address deceptively similar to that of Ms Caruana.
Such deception is known in cyber world as ‘phishing’.
To aid the appearance of authenticity, the fraudulent email of February 9 had that from the agent of February 7 under, so they appeared to be part of the same email chain.
After sending the funds to their devious destination, Ms Doe sent a screenshot of the EFT payment receipt to the agent but the account details discrepancy went unnoticed by her as well.
When by 14 February the funds still had not appeared in the agency’s trust account, Ms Caruana notified the by-now-alarmed buyers and after not too much further exploration, the fraud was spotted and the matter was promptly referred to police.
The sellers – not unsympathetic to the buyers’ plight – eventually terminated the contract in March on the basis of non-payment of the deposit.
Ms Doe and co-buyer Peter Hicktar commenced proceedings in the Supreme Court of New South Wales to compel the seller to specifically perform the contract and to recover damages from agency Sans Souci Developments for allegedly misleading or deceptive conduct.
As it happened, the contract did not provide for payment of the deposit by EFT but rather specified that it was to be paid by cash or cheque.
The buyer contended however that particularly because the agent was appointed under an exclusive agency, she had the requisite authority to bind the vendor to an alteration of the contractually stipulated deposit payment method.
The dispute came before Justice James Stevenson in the NSW Supreme Court who concluded the agency agreement did not confer on the agent authority from the seller “to make directions inconsistent with the contract as to how the deposit should be paid”.
Thus even assuming – something that his honour thought unlikely – liability could be established as against the agency for somehow allowing the thief to steal the deposit, there was no basis to attribute that conduct to the sellers.
The specific performance claim was dismissed with costs.
Thus there would appear to be no relief available to these buyers unless of course they can locate the thief and then recover the funds from that person.
Deligiannidou v Sundarjee [2020] NSWSC 437, Stevenson J, 23 April 2020. Read case.
