A buyer sends an EFT instruction in the morning. The bank marks the request completed. The buyer’s solicitor then makes the contract unconditional. But the deposit holder cannot see the money by 5.00 pm. Has the buyer paid?
By a 2 to 1 majority, the Queensland Court of Appeal answered no in Novadeck Pty Ltd v CK & PT Property Holdings Pty Ltd [2025] QCA 170. Bowskill CJ and Mullins P held that this contract required the balance deposit to be received by the deposit holder before 5.00 pm on the day the finance condition was satisfied. An instruction to the buyer’s bank was not enough. Bradley JA dissented on that point, although all three judges rejected the implication of a term protecting an EFT delayed beyond the buyer’s control.
The immediate lesson is severe. Where payment of a deposit is essential and time is of the essence, a conveyancer cannot treat a bank’s confirmation to its customer as confirmation of receipt. The majority put the transmission risk on the buyer. I think Bradley JA exposed a real commercial weakness in that construction, but his reasons are not the holding.
The majority required receipt, not merely an EFT instruction
The contract, dated 30 August 2021, concerned proposed lot 31 in a unit development at Mango Hill. It required an initial deposit of $1,000 when the buyer signed and a balance deposit of $48,990, payable at the later of 14 days from the contract date or “upon satisfaction or waiver of the Finance Condition” at [2]. The seller’s solicitors were the deposit holder, and the reference schedule supplied their trust account details.
On 16 October 2024, the buyer instructed its bank to transfer the balance deposit. The bank issued a payment summary at 10.32 am saying the request was “Completed” at [66]. At 11.50 am, the buyer’s solicitor told the seller’s solicitor that finance approval had been received and separately said the buyer had attended to payment. The second email asked for confirmation and a trust receipt when available.
The funds did not leave the buyer’s bank until 6.06 pm. The deposit holder’s bank received the file at 8.33 pm and released the funds into the trust account at 9.38 pm. At 6.33 pm, while the money was between the banks, the seller gave notice terminating the contract.
The buyer obtained specific performance at first instance in CK & PT Property Holdings Pty Ltd atf CK & PT Property v Novadeck Pty Ltd [2025] QDC 50. The primary judge construed “pay” as not requiring receipt and implied a term treating a notified, non-deferred EFT as received on the day it was effected. The Court of Appeal majority reversed that result. It set aside the orders for specific performance and dismissed the buyer’s originating application.
The contract put the bank risk on the buyer
At [13], Mullins P identified two construction questions. First, did “pay” in cl 3.2(a) extend to receipt? Secondly, did payment “upon” satisfaction of finance mean payment at that time, or within a reasonable time afterwards?
On the first, the majority started with ordinary meaning in the setting of the whole contract. To discharge the obligation, the creditor had to receive the payment. The contract did not prescribe one payment method. It contemplated a personal cheque, supplied trust account details useful for EFT, and also permitted a bank guarantee or deposit bond. The buyer chose the means. A failure of that means did not alter what the contract required.
On the second, Brien v Dwyer [1978] HCA 50; (1978) 141 CLR 378 did important work. At [20], Mullins P explained that the High Court majority had construed a deposit payable “upon” signing as payable “at the time of”, not within a reasonable time after. Mullins P applied that reasoning to the satisfaction of the finance condition. The deposit operated as an earnest binding the bargain when the contract ceased to be conditional on finance.
The buyer controlled when it gave notice of satisfactory finance, provided it acted by the contractual deadline. Once it gave the notice, that day became the payment day. Clause 1.3(f)(ii) treated an act done after 5.00 pm as done the following day. Payment of the deposit was an essential term, and time was expressly of the essence. At [30], Mullins P therefore concluded that the buyer was in breach because the EFT had not reached the deposit holder’s account before 5.00 pm.
The dissent identifies the commercial pressure point
At [89], Bradley JA agreed that “upon” meant “at the time of”. He also agreed that the primary judge’s implied term was neither necessary for business efficacy nor consistent with the contract. The division was narrower: what did the buyer have to do to “pay” by EFT?
His Honour considered the obligation performed once the buyer had done everything within its control to make the same-day payment to the nominated account. The buyer could control completion of its instruction, but not the steps later taken by either bank. The evidence showed a gap of more than seven hours between the bank recording the instruction as completed and the funds leaving it, followed by further delay before the money became available in the trust account.
That reasoning has force. The contract contemplated EFT, yet on the majority’s reading the buyer’s compliance depended on processing times neither party could predict or control. Bradley JA also compared EFT with cheque payment. The contract treated an honoured cheque as conditional payment from delivery, even though cleared money would arrive later. In his view, completing an irrevocable same-day EFT instruction achieved the deposit’s purpose by demonstrating commitment to the purchase.
The counter-argument is equally practical. The parties made deposit payment essential, fixed a 5.00 pm rule, and gave the buyer control over the timing of its finance notice. The majority refused to modify those provisions to accommodate the payment method the buyer selected. For the present contract, that is the binding construction. The split nevertheless matters. It shows that “payment” in an electronic system is not self-defining, and that drafting which expressly allocates transmission delay may produce a different result.
An implied term could not rewrite an essential obligation
The first-instance solution drew on a later version of the REIQ contract containing express protection for delay in electronic transmission beyond a purchaser’s control. That comparison did not supply the missing protection here. Mullins P held that the proposed term was not necessary to give the contract business efficacy and conflicted with the express timing provisions, read with the essential-term clause.
The buyer’s alternative contention, that the balance was payable within a reasonable time after satisfaction of finance, failed for the same reason. It contradicted the construction of “upon” and diluted the 5.00 pm machinery. All three judges rejected that route. The point is not that electronic delay can never be addressed. It must be addressed by the words the parties adopt, rather than by an implication inconsistent with them.
Coordinate the finance notice with confirmed receipt
For residential conveyancing, especially an off-the-plan purchase, the file plan should identify three separate moments: the client instructs the bank, the payer’s bank processes the transfer, and the deposit holder receives it. Only the third satisfied this contract on the majority’s construction.
Before sending a notice that makes the contract unconditional, check the precise deposit trigger and the deadline for the finance notice. Where the terms permit, arrange the transfer early and obtain confirmation from the deposit holder before giving the satisfaction notice. If the finance deadline makes that sequence impossible, address the payment method or seek an agreed variation before time becomes critical. A bank guarantee or deposit bond may be available if the contract permits it, but the actual terms and delivery requirements still control.
Do not try to repair the position with an email saying the buyer has “attended to” payment, as its solicitor did at [67]. That wording accurately described what happened here, but it did not establish receipt. Nor should a practitioner assume that a later standard-form protection will be implied into an earlier bargain. If the file is already in dispute, the distinction between instruction, departure, bank receipt and account availability will matter. Preserve the bank records and obtain the transaction timeline. Our notes on settlements and adjustments and property disputes give the broader practice context.
The full Court of Appeal judgment repays reading because the disagreement is not about sympathy for a late payer. It is about where the contract placed an ordinary, unavoidable feature of EFT processing.
Published 5 August 2026.
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