Sympli Residential Seller Guarantee
Sympli provides this guarantee in favour of sellers of residential property whose practitioner uses Sympli to settle their sale. This guarantee is limited, and is not a contract of insurance. This means that you may have better prospects of recovering your loss another way. We encourage you to carefully read all of the terms of this guarantee and seek legal advice before deciding whether to make a claim with us.
1. When the guarantee applies
We will protect you if you are the seller of a residential property in Australia and all of the following events have occurred in relation to the settlement of your property’s sale:
- You provided your practitioner, in accordance with their directions, complete and accurate instructions for the bank account(s) into which funds due to you (not to anyone else, including your bank) are to be disbursed at settlement.
- Your practitioner accurately entered those bank account instructions into the distribution summary for your sale in the Sympli platform and digitally signed the distribution summary.
- After (b) occurs, but before settlement, a person other than your practitioner (Fraudster) without your practitioner’s knowledge, authority or approval accessed the Sympli platform and changed the bank account instructions entered in (b) in the Sympli distribution summary for your sale so that the funds due to you will no longer be paid to you.
- After (c) occurs, your practitioner digitally signed the distribution summary by applying their personal digital certificate.
- Upon settlement, the funds due to you were paid to the bank account entered by the Fraudster in (c).
- You and your practitioner complete, sign and submit our claim form such that Sympli receives it within 3 business days after settlement. We may choose to accept or reject late claim forms in our sole discretion.
2. What we will pay if you’re eligible
Subject to the cap in paragraph 3 and the exclusions in paragraph 9, Sympli will pay:
- The amount paid to the Fraudster that was due to you which has not been recovered, returned or frozen by the receiving bank;
- Simple interest on the amount in (a) from the date of settlement until the date we pay you at the published RBA cash rate or other interest rate we specify; and
- Where the fraud resulted in you failing to settle on a purchase of another property on the due date of that subsequent settlement, any rescission notice fees, penalty interest, reasonable accommodation expenses, reasonable legal costs and additional storage and removalist costs you incurred.
3. The amount you can claim is limited
The maximum amount we will pay under this guarantee in respect of a single settlement is $2 million (cap). This amount is Sympli’s maximum liability to you under this guarantee, even if the calculation under paragraph 2 exceeds the cap.
4. How and when we will pay
If you’re eligible for protection under this guarantee, Sympli will pay you the amount calculated under paragraph 2 by direct deposit into the bank account accurately entered into the Sympli platform in 1(b). We will send the payment within 10 business days of receiving your valid claim form.
5. What you must do if you make a claim
If you make a claim under this guarantee, you must:
- Report the fraud to the police;
- Provide us all information in your reasonable possession or control relevant to any investigation, demand or proceeding in relation to the incident;
- Cooperate with our reasonable requests to take part in any proceedings in relation to the incident, including providing any relevant evidence and attestations;
- Execute any documents we reasonably request in order for us to pursue recovery of the loss, including providing us with such written authority as may be required for us to deal with third parties;
- Inform us if you know of the existence of any other insurance which may respond to the loss, and whether or not a claim has been made under the policy;
- Not do anything to prejudice or otherwise harm Sympli’s ability to recover loss from the incident; or
- Not take any steps to recover without Sympli’s prior written consent.
6. What you authorise us to do
By signing and submitting a claim form, you authorise Sympli to:
- Make enquiries and conduct investigations in relation to the incident, including obtaining all relevant information from your practitioner and anyone else;
- Deal with any authorities and banks involved in the transaction or connected with the incident;
- Disclose information relating to the incident, including your personal information, to any investigating authority and relevant banks;
- Deal with your practitioner on your behalf;
- Make, prosecute and settle claims, legal proceedings, and undertake any other activities to attempt to recover any loss.
If by taking steps in paragraph 8, or otherwise, we manage to recover more than what we paid you under this guarantee:
- You cannot ‘double recover’ from us; and
- We will pay you any recovered amount not already paid to you under this guarantee, less any interest on that amount and any costs we incur in recovering the amount.
You forever release Sympli from all claims in relation to any of the amounts Sympli recovers that are not otherwise payable to you under this paragraph
8. Subrogation of rights
By signing and submitting a claim form, you acknowledge and agree that Sympli will be subrogated to your rights in respect of the fraud, including your right to recover any loss you suffered as a result of the incident. This means that Sympli may take steps to recover loss from the Fraudster, your practitioner and any other person. Taking these steps include using your name and prosecuting, enforcing, compromising and settling your claim against any of those third parties on terms Sympli thinks fit.
You are not eligible for the Sympli residential seller guarantee for the following:
- Funds to be paid to discharge your mortgage on settlement;
- When a mortgagee or any other third party exercises a power of sale;
- Your liability to any tax or duty authority;
- Payment directions entered under paragraphs 1(a) and (b) that nominate your practitioner’s trust account or controlled money account;
- Your liability to third parties relating to any property outgoings including land tax, water authority charges, utilities charges, council rates, emergency services levies and body corporate fees;
- Any loss, cost or expense you suffer or incur not specified in paragraph 2;
- Payment of your practitioner’s fees and disbursements;
- A sale of residential property by a commercial vendor;
- Where you have committed or otherwise participated, aided or abetted in the fraud; or
- Any dishonest or fraudulent conduct by your practitioner.
10. When and how we can make changes to this guarantee
Sympli may make changes to this guarantee at any time. We will post the revised guarantee on our website and specify when it takes effect:
- Immediately where the changes are neutral or more favourable to you; or
- 30 days before taking effect if the changes reduce your rights or increase your responsibilities.
We will provide 3 months’ advance notice on our website if our seller guarantee is being retired.
11. Other important terms
- When we need to determine a matter of fact under this guarantee, we will determine it on the balance of probabilities.
- This guarantee and any dispute arising out of or in connection with it is governed by the laws of New South Wales.
- Nothing in this guarantee diminishes or otherwise affects practitioner responsibilities to:
- obey the law;
- comply with our Subscriber Agreement and Security Policy (accessed at https://www.sympli.com.au/policies/);
- ensure their client’s bank account details are true, accurate, complete, up-to-date and relevant at the time of applying their digital signature;
- take appropriate security measures to protect their IT environment and notifying us of potential security breaches; and
- provide cyber security awareness training to staff.
12. Definitions and interpretation
- In this document:
business day means a day other than a Saturday, Sunday or public holiday in Australia on which banks are open for business in Sydney.
Client Authorisation Form means the form of that name set out in the ARNECC Model Participation Rules published at www.arnecc.gov.au as amended or updated from time to time.
commercial seller means a seller who is:
- registered or is required to be registered for GST and claims the sale is GST exempt where the sale is part of a going concern; or
- is liable for GST on the sale.
distribution summary means the electronic summary of distributions to be made upon settlement created in the Sympli platform.
practitioner means a law practice or conveyancing practice that has entered into a Client Authorisation Form with you and represents you in the Sympli platform. It includes any principal, employee, agent, contractor of the practice, and any individual authorised by the practice to access and use Sympli on behalf of the practice.
RBA cash rate means the Reserve Bank of Australia’s cash rate target that was effective as at 9.00 am on the date of settlement. The RBA cash rate is published at https://www.rba.gov.au/statistics/cash-rate/
residential property means real property that is used, or intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or primary production.
seller, you or your means the seller of residential property making a claim on this guarantee.
settlement means the exchange of funds between financial institutions in accordance with the instructions of the parties entered into the Sympli Workspace.
we, our or us means Sympli Australia Pty Ltd (ABN 43 624 341 420)
- This guarantee represents the entire understanding between you and us with respect to its subject matter and supersedes all prior agreements and understandings between you and us in connection with it.
- Unless expressly set out otherwise, a reference to:
- $ is Australian Dollars;
- ‘including’ means ‘including without limitation’;
- a person includes any body corporate, unincorporated body or other entity and conversely;
- the singular includes the plural and conversely;
- a law, rule or document is to that law, rule or document as amended, supplemented, re-enacted, varied, replaced or novated from time to time;
- a party includes its successors and permitted assigns;
- a thing includes part of that thing.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning