We're updating the Agency Agreement Terms and Conditions for DEFT Auction Pay. The changes will be effective from 1 December 2023 and are outlined in the variation notice.
If your client (the property vendor) has agreed to accept payment of the deposit by electronic funds transfer, DEFT Auction Pay allows the Payer (i.e. the buyer) to pay the deposit by submitting a direct debit request which enables us to draw funds from their bank account and into your trust account.
DEFT is owned and operated by Macquarie Bank. When we provide DEFT, we act as a payment facilitator and sit between the Agent (you) and the Payer (the buyer making payment of the property deposit). DEFT enables you to receive one-off direct debit payments from the Payer’s bank account directly into your trust account. DEFT is offered in connection with the deposit account(s) that you hold with Macquarie.
For further details about the operation of your bank account(s) and other information about Macquarie (including our complaint handling processes), please read the Product Disclosure Statement associated with your bank account(s).
You are responsible for any fraudulent or unauthorised transactions. For example, if the Payer uses bank account details of a third party (who did not authorise the transaction) and the deposit has been prematurely released to the vendor, then you are liable for accounting to that third party for the amount of the payment.
In order to reduce the risk of fraud and potential cost to you, we recommend you:
In addition, there may be consequences for either yourself, your client or the buyer under the property contract or at law if payments are recalled/dishonoured or delayed – you should satisfy yourself of the legal ramifications associated with this (e.g. your client may be entitled to terminate the contract, or impose additional costs – and parties may seek to involve you or hold you responsible).
1.1 These Terms and Conditions apply to the provision by Macquarie to the Agent of the DEFT Auction Pay payment facility (referred to as “DEFT” or “Facility”), which enables Payers to make payments directly into your bank account(s) held with us.
1.2 Subject to section 17, these Terms and Conditions apply from the date that Macquarie receives the signed acceptance of this Agency Agreement from the Agent and will remain in force thereafter, while the Agent utilises DEFT.
In these Terms and Conditions, the following words have the following meanings:
Agent / you / your means you, the client of Macquarie who will receive payments from Payers. You must already be a client of Macquarie and have a Macquarie Business Banking bank account in order to use DEFT.
Business Day means every weekday except for Australian national public holidays.
DRN stands for “DEFT Reference Number”, a unique number issued by you to individual Payers in order for the Payer to make payments to you via DEFT. The DRN assists you to identify Payers, payments and reconcile your accounts.
Dishonoured means the process where the Payer’s financial institution, either on its own or on instruction from the Payer, requests that a charge or direct entry (electronic) Transaction be reversed back to the Payer’s financial institution.
Full Recourse means the right to recover payment from the Agent for a Transaction as set out in these Terms and Conditions, which may be against any accounts of the Agent in debit or credit.
Macquarie / us / we means Macquarie Bank Limited ABN 46 008 583 542.
Payer means any person(s) who uses a valid DRN to make payments to your bank account via DEFT, in payment of their respective deposits on property contracts.
Transaction means each utilisation of DEFT by a Payer (i.e. each payment).
3.1 Macquarie will:
a. act as agent for the Agent for the purpose of the receipt of monies payable to the Agent by Payers, which may include monies owing to the Agent in its own right and in its capacity as agent for any third party (i.e. property vendors); and
b. otherwise act as a principal in respect of our obligations as a service provider in providing the Facility.
3.2 You acknowledge that nothing in these Terms and Conditions is intended to, nor will it, create:
a. a joint venture or partnership between the parties; or
b. any contractual or binding relationship between Macquarie and a Payer or any other person making a payment to the Agent through DEFT.
4.1 Before making DEFT available for prospective purchasers as a payment option at auction, you must:
a. ensure you have a portable device from which you can access DEFT, and that your portable device can connect to a secure internet connection.
b. examine DEFT for any technical errors that may affect its use by prospective purchasers; and
c. ensure that the vendor has agreed to payment of the deposit by DEFT and understands that funds can take up to three (3) Business Days to clear and be received.
4.2 If section 4.1 is satisfied, you may notify potential purchasers at auction that they can elect to pay their property deposit using DEFT.
4.3 You must not offer DEFT as the only method of payment for a property deposit, and you agree to advise all potential purchasers that their use of DEFT:
a. is at their own free will; and
b. that there are other payment options available to them to pay for their property deposit.
4.4 You should verify the identity of each Payer. The account holder should match the name of the purchaser on the property contract (or you should be sufficiently satisfied of the connection if different).
4.5 DEFT can be used for a joint bank account where any of the account holders can authorise payment under the terms of the nominated bank account. A joint account which requires all account holders to authorise payment must not be accepted.
4.6 You are responsible for ensuring the accuracy of the property details, the deposit amount and all other information required to facilitate a successful payment.
4.7 You must ensure that the Payer is provided with sufficient opportunity to read the DEFT Auction Pay Direct Debit Authority & Payer Terms of Use, and that they have willingly agreed to those terms prior to making payment using DEFT.
4.8 On each occasion that you offer DEFT as a payment option, you represent and warrant that you have successfully met each requirement described in this section 4.
5.1 We will not accept payment from a Payer through DEFT unless the person making payment produces a valid DRN.
5.2 Payment of any amount tendered by a Payer may be accepted by us pursuant to these Terms and Conditions.
5.3 All Transactions must be made by direct debit from a compatible bank account. You must arrange for each Payer to provide an appropriate authority in our favour to debit the Payer’s bank account (i.e. the DEFT Auction Pay Direct Debit Authority & Payer Terms of Use).
5.4 You are responsible for any incorrect or unauthorised amounts debited. To the extent permitted by law, we are not liable to pay you and you indemnify us against any fraudulent or Dishonoured Transactions.
5.5 In the event that we are unable to perform the agency functions for any reason beyond our control (including force majeure under section 12), we will advise you in writing of such inability within a reasonable time.
5.6 Should you owe an amount back to the Payer (e.g. a deposit refund), in order to reduce the risk of fraud and your potential liability for this, you should notify us of the details of the Transaction for a refund to be made back to the same account from which the payment was originally made. Do not process any refund directly.
6.1 You acknowledge that payments made through DEFT may be subsequently Dishonoured at any time after a payment is made.
6.2 Payments can take up to three (3) Business Days to be received in clear funds, and can be automatically recalled and Dishonoured during this period (“Automatic Dishonours”) - for example, because the Payer did not have sufficient funds in their bank account. This is distinct from manual Dishonours or “disputed transactions”, which can arise weeks or months after the initial Transaction and are subject to consultation and investigation - see section 7.
6.3 As Automatic Dishonours arise without notice, you should retain the funds in your account until they are cleared (particularly if your destination account is a trust account). For fraud mitigation purposes, we recommend you retain the funds in your account for the entire period of exchange.
6.4 Unless you instruct us to draw funds from another account, you authorise us to operate on the bank account linked to DEFT for the purpose of processing Dishonoured transactions, even if that account is a trust account.
6.5 Without limiting section 10.3, you must ensure that sufficient funds are maintained in your bank accounts to cover any shortfall caused by such Dishonoured payments. You indemnify us against any loss caused by these Dishonoured payments.
7.1 A Transaction is a “Disputed Transaction” if a Payer notifies you or us of a dispute, complaint or query concerning that Transaction.
7.2 If we notify you of a Disputed Transaction, you must provide us with a written response no later than five (5) Business Days after receipt of such notification. Your response must be substantive and contain a resolution or explanation of the Disputed Transaction, which will enable us to resolve the Disputed Transaction. If such a response is not received by us within five (5) Business Days, we will have Full Recourse against you for the amount of the Disputed Transaction. You must also provide us with any other information relating to the Disputed Transaction that we reasonably request.
7.3 If a Payer notifies you of a Disputed Transaction, you will provide to the Payer a written response no later than five (5) Business Days after receipt of such notification. Your response to the Payer must be a substantive response containing a resolution or explanation of the Disputed Transaction.
7.4 If a Payer notifies you of a Disputed Transaction and it is determined that the Payer be refunded, you should notify us of the details of the Transaction for a refund to be made. Do not process any refund directly.
8.1 You must pay the relevant fee or charge for each Transaction performed via DEFT and any other fees as set out in the ‘Indicative Proposal’ which was provided to you before receiving this agreement (or otherwise as notified to you from time to time in accordance with section 8.4). The maximum amount for direct debit Transactions performed via DEFT Auction Pay is $2.00 per Transaction.
8.2 The Indicative Proposal sets out whether or not any fee or surcharge will be passed on to Payers. If you subsequently want to change this position, you may do so by giving us no less than 30 days’ written notice.
8.3 You authorise and instruct us to collect any transaction fees and surcharges payable by you in connection with a Transaction and which will be passed on to Payers directly from the relevant Payer at the time of the Transaction.
8.4 You indemnify us in respect of any government duties, taxes and charges in connection with the Facility or transactions on the Facility payable by you, the Payer or any other party in respect of any Transaction.
8.5 Acting reasonably, we may vary or introduce any fee or charge if we provide you notice in accordance with section 8.6 no later than thirty (30) days before the day that the new fee or charge is intended to take effect.
8.6 You agree that we can give notice of a variation or introduction of a fee or charge in writing, electronically, by an advertisement in a major daily newspaper or in any other way permitted by law.
Information on current standard fees and charges is available on request. Please contact us if you require any further information about fees and charges that are applicable to the use of DEFT.
9.1 Neither party will use the name or logo of the other in any advertising material without the prior written consent of that other party.
9.2 Any advertising in relation to DEFT must not be used without our prior written consent.
9.3 During the provision of DEFT you may, subject to such conditions as we may reasonably impose, include accurate factual references to the existence of DEFT in your advertising material and any necessary documentation.
10.1 To the extent that is permissible by law, Macquarie disclaims all conditions and warranties, express or implied, in respect of the provision of the Facility.
10.2 Notwithstanding the terms of section 10.1, our responsibility under these Terms and Conditions, as well as for breach of any implied statutory condition or warranty which cannot be excluded will, if any legislation so permits, be limited, in our discretion to:
a. the resupply of DEFT; or
b. the cost of resupply of DEFT, (including, if applicable, the amount of any money transferred or received as the subject of the Facility) in respect of which the breach occurred.
10.3 Macquarie’s liability under these Terms and Conditions is limited to the amounts specified in section 10.2. Therefore, Macquarie will not be liable to the Agent and/or Payer for, and the Agent will indemnify Macquarie against, any action, proceeding, claim or demand relating to any direct or indirect loss or damage which exceeds this limitation.
10.4 Section 10.3 also applies to any loss or damage which results from any act or omission by Macquarie of any duty, obligation or function whilst providing DEFT.
10.5 Macquarie will, if requested by the Agent, take reasonable steps to assist the Agent in the event of any claims being received by the Agent from a third party where such claim arises directly out of the provision of DEFT.
11.1 Subject to Clause 11.2 below, the parties will treat as confidential and may not disclose any information which comes into their possession pursuant to or as a result of the provision of DEFT.
11.2 The Agent acknowledges that Macquarie may conduct data aggregation and analysis, based on the information we have collected from your use of DEFT. We may package such information and use it for our own purposes or sell it to interest parties.
11.3 Confidentiality of charges and prices will be maintained and the Agent may not disclose negotiated charges or prices to a third party without the approval of Macquarie.
11.4 Notwithstanding the terms of sections 11.1, 11.2 and 11.3, such information may be disclosed if required by any law or order of any court, tribunal or regulatory body.
Neither party will be liable to the other, nor be in default of these Terms and Conditions, for failure to observe or perform any provision of these Terms and Conditions for any reason or cause which could not with reasonable diligence be controlled or prevented by the party in question, provided that the party relying on this clause must give notice to the other party of its inability to observe or perform the provisions of these Terms and Conditions and the reasons for this.
13.1 Either party may terminate the supply or use of DEFT without cause and without the need to give any reason or explanation, by giving the other party written notice specifying a date for the termination (being not less than 30 days after the date of such notice).
13.2 Termination of the DEFT service will not relieve either party of its duty to fulfil its obligations under these Terms and Conditions in respect of any Transaction occurring prior to the termination date.
13.3 In the event of the termination of the DEFT service, the Agent:
a. will not be entitled to any refund of fees and charges paid to Macquarie pursuant to these Terms and Conditions; and
b. indemnifies Macquarie in respect of any fees, charges and expenses incurred by Macquarie or payable to Macquarie in the performance of its obligations under these Terms and Conditions.
13.4 Any payments received by Macquarie after the termination of the DEFT service may, in Macquarie’s absolute discretion, be Dishonoured or returned to the Payer.
For the protection of the Agent and Macquarie, we may suspend your use of DEFT without prior notice if:
a. you are in breach of any of your obligations under these Terms and Conditions;
b. you or anyone acting on your behalf is suspected of being fraudulent; or
c. to otherwise protect our interests.
15.1 Notices and other communications must be signed by the party giving, serving or making the notice or on its behalf by any attorney, directory, secretary, other duly authorised officer or solicitor of such party.
15.2 Notices and other communications will be deemed to be given, served or made:
a. (in the case of delivery by hand) on delivery;
b. (in the case of prepaid post) on the second Business Day after the date of posting;
c. (in the case of email) on the day of sending (if before 5pm), or on the following Business Day (if after 5pm or if sent on a non-Business Day), provided no email delivery failure notification is received by the sender; and
d. (in the case of facsimile) on receipt of a transmission report confirming successful transmission.
All provisions of these Terms and Conditions are severable. No provision will be affected by the invalidity of any other provision except to the extent that such invalidity also renders such other provision invalid. In the event of the invalidity of any provision, these Terms and Conditions will be interpreted and enforced as if such invalid provision were not contained in these Terms and Conditions.
17.1 Acting reasonably, we may change these Terms and Conditions at any time on at least 30 days’ notice:
a. if we think the change should be made to meet our legal obligations, to reflect any judgment of a court or tribunal or to reflect any guidance or views of any regulator or external dispute resolution service of which we are a member;
b. as a result of any change or anticipated change in circumstances relating to DEFT including, for example (and without limitation), changes to our operations, systems or procedures, changes in technology, changes in any relevant law, code or guidance, changes in market or best practice, changes to the risks, costs, features or benefits of DEFT, or changes in our structure or financial position;
c. if we think the change should be made for reasons of security, to streamline administration, to correct errors, inaccuracies or ambiguities, or because it would be impractical for us to continue without the change; or
d. to make the Terms and Conditions clearer or simpler.
17.2 Your continued use of the Facility after any such change constitutes your acceptance of the revised Terms and Conditions. If any law regulates that change, we will only make the change to the extent permitted by, and subject to, the requirements of that law.
17.3 You agree that we can give notice of variations to these Terms and Conditions, any material change to, or any significant event that affects any of the matters specified in these Terms and Conditions in writing, electronically, by an advertisement in a major daily newspaper or in any other way permitted by law.
17.4 If requested, you must, on our behalf, give notice to Payers of any changes to terms and conditions or fees applying to or affecting Payers, in the manner and by the time specified by us.
The parties acknowledge that, subject to sections 8.1 and 8.4, these Terms and Conditions contain the whole of the agreement between the parties with respect to DEFT, and any representations or warranties made by either party prior to the Agent’s acceptance of these Terms and Conditions will have no force or effect.
These Terms and Conditions are governed by and must be construed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia in respect of all matters or things arising out of these Terms and Conditions.
20.1 Macquarie acknowledges its obligations under the Privacy Act 1988 (Cth) in relation to personal information provided to it.
20.2 The Agent warrants to Macquarie that it has obtained each Payer’s consent prior to providing Macquarie with any personal information relating to the Payer and it agrees to indemnify Macquarie against any action or claim made by a Payer or any other person or authority which relates to the provision or disclosure of this information.
20.3 The Agent acknowledges that Macquarie may contact any Payers in respect of direct marketing or other purposes, where those Payers have independently provided their consent for Macquarie to do so.
The liabilities and obligations contained in these Terms and Conditions may not be assigned by the Agent without the prior written consent of Macquarie.
This is a banking service to which the Banking Code of Practice (‘BCOP’) applies. The BCOP is an industry code which sets standards of good banking conduct for banks, their staff and their representatives. The BCOP will apply to this contract when we adopt the BCOP on or before 1 July 2019, if you are an individual or a small business (as defined in the BCOP).
23.1 If you have a complaint or dispute about anything relating to your DEFT facility, you can contact us by:
a. contacting your relationship manager,
b. calling 1300 550 415, or
c. emailing: business@macquarie.com, and including a full explanation of your situation. We will generally reply within two (2) Business Days,
23.2 If we do not rectify a problem notified by you under this section, you have the option to contact either our Customer Advocate, or the Australian Financial Complaints Authority (‘AFCA’). The Customer Advocate’s role is to review the reasonableness and fairness of the outcome of your complaint. AFCA offers an independent and free resolution process of disputes between consumers and financial service providers. AFCA has certain terms of reference that must be satisfied in order for it to investigate your problem.
You can contact the Customer Advocate by:
You can contact AFCA by:
