on 08-06-2018 12:16 PM
Hi, I work within a Bank and in the past when we could not meet settlement quite often the response from the customers legal representative was, "where do I send my claim for costs and penalties".
I've noticed a few more outages involving the PEXA system. In the future if there is a PEXA outage and it affects the settlement can we direct the customers legal representative to claim costs, penalties etc from PEXA?
on 08-06-2018 12:39 PM
This is exactly our position too, as it should be for everyone who has had a settlement delayed or not taken place due to PEXA being offline.
The email I have been given is email@example.com. I would be sending claims for costs there.
on 12-06-2018 11:09 AM
Thanks for raising this @Ron. Any form of outage across the broader e-Conveyancing network is frustrating which is why PEXA invests so much in the robustness of its infrastructure.
However it’s important to note that PEXA is required to be available 99.8% of the time and to date we have exceeded this target each month as you can see in the monthly reports published here.
(A planned outage occasionally occurs on a weekend with warning to our members so we can puta new release in and expand the functionality). We’re pretty proud of our uptime considering the breadth of integration we have across the nation but we can see why to our members it looks like a “PEXA issue”.
In the instances you refer to, it’s a third party system (such as a Land Registry or banking system) which experiences an outage which then has a flow-on effect to the rest of the network. PEXA has implemented initiatives the impact on PEXA settlements when certain third party systems are unavailable.
For details around one of the initiatives PEXA has developed to make sure your transaction can proceed in the instance a Land Registry is experience an outage, you can head to this page which explains that if a Land Registry cannot be reached during settlement, PEXA will proceed to financial settlement and lodge later, when the Land Registry communications are re-established. Additionally, if a Land Registry cannot be reached on the day of settlement when final digital signatures are being applied, PEXA will allow the documents to be signed, provided they are unchanged since the last lodgement verification. These measures build resilience into the settlement model so that more settlements can proceed as scheduled, even if a Land Registry system is unavailable.
Finally, when a purchaser is unable to provide funds on the day they are due because their lender is not ready, the purchaser is in default under the contract of sale, which is why penalties apply in the scenario you described.
However, if a system is unavailable on the day of settlement, this will impact both parties equally, rather than being a default by only one party. Most of the contracts for sale of land have contemplated a scenario where settlement cannot proceed due to unavailability of a system and provide that a party is not in default if electronic lodgement is not available and/or that settlement is deemed to be the next business day.