Execution of Documents

Subject to any relevant statutory provision, anAn agreement does not have to be committed to writing (or evidenced in writing) in order to be an enforceable contract. In contrast, a deed does; the common law considers a deed to be the most solemn form of document a person can execute (Young J in Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361, 367-369).

The common law historically required a deed to comply with several formalities:

the deed must be written on parchment, vellum or paper;

• the deed must be signed;

• the party signing must seal (impression on wax or directly on paper) the deed; and

• the person signing must deliver the deed (formally, by pointing to the seal and saying something like ‘I deliver this as my act and deed’).

As discussed in detail in other parts of this section, the common law does not require that a deed be witnessed. However, statute law has imposed this requirement in certain jurisdictions. An agreement does not need to be witnessed but witnessing is generally recommended given its evidentiary value.

One important difference between an agreement and a deed is that a party seeking to enforce a promise made to it in an ordinary agreement (whether written or oral) must have provided consideration for the promise. Consideration is not necessary if the promise is contained in a deed.

For example, a third party guarantee of a loan will ordinarily be made by deed if the guarantor does not receive any consideration from the lender for guaranteeing the loan to the primary borrower (unless the consideration is construed as being the benefit of the lender continuing to advance funds to the borrower, who the guarantor has an interest in supporting). If the guarantee is executed as a deed rather than an agreement, any dispute about lack of consideration is avoided. If the guarantee is executed as an agreement, it will be void the contract might be held to be unenforceable due to a lack of consideration.

Although consideration is not strictly necessary if a promise is contained in a deed, it is still common for the deed to contain an exchange of promises to pay at least a nominal amount as of consideration to be included in deeds where there is otherwise no consideration. This is because of the rule that equity will not assist a volunteer. The effect of that rule is to bar recourse to equitable remedies such as specific performance if there is no consideration given for a promise that is received.  Nominal consideration can be provided for with a term to the effect that: ‘Each party agrees to pay the other the sum of $10 in consideration for the promises and obligations made by that party under this document.’

Unlike ordinary agreements, deeds executed by natural persons will generally need to be witnessed, a condition imposed by statute rather than common law (a point noted in Brown v Tavern Operatory Pty Ltd [2018] NSWSC 1290).

While deeds must be ‘sealed’ in order to be properly executed, legislation in each State and Territory provides that a deed is deemed to be sealed if certain descriptive words are used in the deed.

For example, in New South Wales, section 38(3) of the Conveyancing Act 1919 (NSW) states that if a deed is expressed to be an indenture or a deed, or to be sealed, it will be deemed to be sealed. Likewise, section 73A of the Property Law Act 1958 (Vic) states that a deed expressed to be sealed will operate and take effect as if it had been sealed (even if no physical wax or wafer seal, rubber stamp or other impression has been used to effect a seal, those being the methods required to effect a formal seal at common law – see Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27, [18]).

Deeds only take effect when they are delivered (a legal concept focusing on when a party signing a deed intends to be bound) rather than simply executed. Delivery is a question of fact to be determined objectively in each individual case with reference to ‘the words and conduct of the executing party and the circumstances surrounding the execution of the deed’ – see the decision of the New South Wales Court of Appeal in Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253, [59]-[60] and the decision in Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSWSC 379, [71].

The different legal rules are discussed in detail in the sections on: 

• Execution of Deeds 

• Execution of Agreements 

• Electronic Execution.

Another important difference between deeds and agreements is that deeds have a longer limitation period, being at least double that for a breach of an agreement in all Australian jurisdictions.

If the parties wish to preserve a longer limitation period to enforce any breaches of their underlying obligations, they should use a deed rather than an agreement to record the terms of their transaction.

As the above suggests, deeds are more complicated than agreements from both a drafting and an execution perspective, due to additional requirements which may be imposed by law as to their execution (for example, requirements for deeds to be sealed and witnessed in certain jurisdictions) and questions of when the obligations in a deed take effect.

• No consideration: where there is not, or may not be, consideration for the promise. For example, confidentiality agreements are often in the form of a deed if there is a concern that the person receiving a confidentiality undertaking does not provide any consideration for doing so;

• Longer limitation period: where a party seeks a longer limitation period;

• Formality: where the parties want to formally document their ‘deal’ and commit it to paper (whether physical or electronic). There is both a ritual to and gravitas in the parties using a deed; a deed has been defined as the most solemn act a person can perform with respect to a piece of property or other right. Deeds are a creation of the common law, dating back to around 700AD. In many instances parties prefer to use deeds rather than agreements because they are symbolic of the importance of the transaction as opposed to any legally significant reason; or

• Statutory requirement: where statute requires it. For example, deeds are required in many dealings involving real property.

Electronic signatures, digital signatures, or eSignatures are each a term used to describe a class of methods for electronically replicating or replacing a physical signature (a physical signature is sometimes called a ‘wet ink signature’ referring to the use of ink and to distinguish it from an eSignature).

There are many ways in which an eSignature can be created, including:

• scanning a paper signature and inserting it in an electronic document;

• clicking on an “agree” button on a website;

• signing using a digital pen or stylus, finger, or mouse or trackpad;

• the signatory typing their name; or

• using specific electronic signing tools such as DocuSign or Adobe Sign, which use a web-based authentication system to affix an electronic version of the signatory’s signature to a document.

For natural persons, generally there is no legal requirement that an agreement be signed (or even that it be in writing), provided that the person has indicated their intention to be bound by the agreement in some other way, and therefore there is no legal impediment to using an eSignature.

Similarly, many contracts are made online simply by selecting an ‘I agree to these terms and conditions’ checkbox and paying by credit card. Contracts of that kind are typically legally valid and enforceable.

However, there are certain types of contracts that must be writing and / or signed in order to be legally binding. These include deeds, contracts for the sale of land, certain building contracts and unsolicited sales contracts. In those cases, the use of eSignatures will only be possible if:

• expressly authorised in general legislation – for example, section 110A of the Corporations Act 2001 (Cth) recognises that companies can sign in accordance with sections 126 or 127 of the Act using electronic means, while section 38A of the Conveyancing Act 1919 (NSW) recognises that deeds governed by New South Wales law can be in electronic form and signed electronically;

• expressly authorised in the relevant legislation governing the transaction – this is very rare (one example being the electronic execution of a security agreement under the Personal Property Securities Act 2009 (Cth) – see the definition of ‘writing’ in section 10 of that legislation);

• authorised by implication under the relevant legislation governing the transaction – however, this basis of validation is very uncertain and we do not advise relying on it; or

• the electronic execution complies with the relevant Electronic Transactions Act and associated Electronic Transactions Regulations, which apply in the jurisdiction selected by the parties to govern their transaction (there is an Electronic Transactions Act with similar provisions, and associated Regulations, in each State and Territory, as well as at Commonwealth level).

If an eSignature is used in one of these cases, we recommend the following:

• use a sophisticated eSignature tool that is in regular commercial use and has a sound reputation;

• to maximise security, use additional available authentication options if available in the selected eSignature tool, such as two-factor authentication by a phone code or message;

• advise the counterparty in advance that you intend to execute the contract electronically;

• include a clause in the contract that contains an acknowledgement and agreement by each party that they consent to, and authorise the use of, either physical or eSignatures by the parties to the contract; and

• be as vigilant in reviewing a counterparty’s eSignature as you would be for any other signature. If something seems suspicious or unusual, it should be promptly investigated.

The table below sets out the jurisdictions in Australia where electronic signatures are permitted when signing a deed or agreement.

This table summarises if and how agreements and deeds may be electronically executed and witnessed in each jurisdiction of Australia. It is applicable to individuals and Australian companies only, and to documents governed by the laws of an Australian jurisdiction.

The information in this table is applicable to most forms of agreements and deeds that are governed by the laws of the stated jurisdiction. However, there are exceptions to the requirements set out in this table for particular documents and in particular jurisdictions. If you require more information or would like to discuss your particular transaction, please contact us to discuss.

The G+T Execution App provides an execution block for an individual to execute a deed. It should be used in conjunction with the important general notes regarding Execution of Deeds [include link to Execution of Deeds heading above] and the specific information below.

Witnessing a signature of an individual signing a deed

The execution block available in the G+T Execution App provides for an individual who is executing the deed in their personal capacity to have their signature witnessed. The witness must be present, either in person or (in some jurisdictions) virtually using a real time audio visual technology, when the deed is executed, whether or not electronic signatures are used.

The execution block available in the G+T Execution App has been drafted so that it complies with the laws relating to execution of deeds by an individual in all States and Territories in Australia. While witnessing of an individual’s signature is not strictly necessary under the laws of Victoria or Queensland, it is recommended that witnessing also be used for individuals signing deeds governed by the laws of Victoria or Queensland. Witnessing serves an evidentiary as well as a legal purpose.

Witnessing of an individual’s signature is necessary in all other States and Territories as a matter of statute as opposed to the common law – see Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290.

Where a person is required to witness signatures on a deed, the witness must not be a party to the deed. Ideally a witness should not be a representative, relative, or employee of a party to the deed.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Where the governing law of the deed is New South Wales, Victoria, or Queensland law, witnessing the signing of a deed by an individual may be conducted using real time audio visual technology such as Zoom or FaceTime. There are strict procedural requirements if witnessing will be conducted using such technologies. Consider seeking specialist advice if a witness and signatory propose to have the signatory’s signature remotely witnessed.

Disclaimer

This execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual to execute a deed as an attorney. The execution block can be used for an individual executing a deed as attorney for either an individual or a company – however, if the individual is acting as attorney for a company it may be more appropriate for that attorney to sign in a manner authorised by section 126 of the Corporations Act 2001 (Cth). See the information contained in the heading Execution pursuant to section 126 of the Corporations Act. The App should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

You should review the authorising deed to ensure that it has been validly executed and that the attorney who will be executing the deed has authority under the authorising deed to do so.

Attorney must be appointed by deed

Importantly, an individual who is acting as attorney may only execute a deed (rather than an agreement) if that attorney has been appointed by deed (rather than by a verbal or written agreement or other acknowledgement) to do so – see MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636, Commissioner of Stamps (Vic) v Papalia (1982) 12 ATR 866, 869, Re J (enduring power of attorney) [2009] EWHC 436, and Lift Capital Partners Pty Ltd v Merrill Lynch International [2009] NSWSC 7 at [37]. The usual way to do this is by the principal granting a power of attorney in the form of a deed.

There is an exception to this requirement under Queensland law, which provides that an agent of a signatory (for example, an attorney) need not be appointed under a deed. However, this only applies to deeds governed by Queensland law and does not replace the need to make enquiries as to the manner in which the agent was appointed and the source of their signing authority.

For information on an individual or company signing as attorney or agent for a company, see the section entitled Statutory assumptions of due execution where attorney signs for company.

Attorney signs their own name

The execution block available in the G+T Execution App provides for the attorney to sign their own name. An attorney can sign in their own name if either:

–     the power of attorney expressly permits them to do so; and / or

–     the power of attorney is governed by the law of a jurisdiction which has such a statutory provision allowing the attorney to sign in their own name. Except in the Australian Capital Territory and South Australia, statute law in each State and Territory permits an attorney, when exercising its power to execute documents on behalf of the principal, to sign a document using the attorney’s own signature.

Outside these circumstances, the attorney may not be able to sign in their own name. Consider seeking specific legal advice.

Circumstances in which statutory assumptions of due execution are not available

Where a company executes a deed by way of an attorney and this occurs other than in accordance with section 126 of the Corporations Act 2001 (Cth), the important presumptions of due execution under sections 128-129 of the Corporations Act 2001 are not available in relation to the deed itself as the execution is not in accordance with section 126. However, those presumptions will be available in relation to the execution of the underlying power of attorney if it has been executed under sections 126 or 127.

The attorney’s signature needs to be witnessed in these circumstances. These requirements are discussed in detail below.

Sections 126-129 of the Corporations Act are discussed in detail in the Execution block for Company section of this document.

Registration of powers of attorney

There is a statutory requirement in most jurisdictions that any power of attorney authorising dealings with land must be registered to give validity to those dealings. The only exceptions or variations to this general rule are:

–     Western Australia, where registration of a power of attorney is not required (although a power of attorney may be deposited with Landgate);

–     Victoria, where no power of attorney is required to be registered;

–     Tasmania, where all powers of attorney are required to be registered; and

–     the Australian Capital Territory, where there are additional registration requirements for powers of attorney that are created in respect of conveyances or deeds.

The registration requirements in the various jurisdictions (including the precise circumstances in which registration is required) fall outside of the scope of this material. If registration of the power of attorney may be required, consider seeking specialist advice. The execution block available in the G+T Execution App may not be appropriate where registration is required.

As a general rule, if an instrument is executed under an invalid power of attorney or a power of attorney that post-dates the signed instrument, registering the power of attorney will not validate the instrument.

Witnessing a signature of an individual signing as attorney

The execution block available in the G+T Execution App provides for the individual who is executing the deed as an attorney for an individual or a company (other than in accordance with section 126 of the Corporations Act) to have their signature witnessed. The witness must be present, either in person or (in some jurisdictions) virtually using a real time audio visual technology, when the deed is executed.

The execution block available in the G+T Execution App has been drafted so that it complies with the laws relating to execution of deeds by an individual in all States and Territories in Australia. While witnessing is not strictly necessary under the laws of Victoria or Queensland, it is recommended that the requirement not be removed for Victoria or Queensland. Witnessing serves an evidentiary as well as a legal purpose.

Witnessing of an individual’s signature is necessary in all other States and Territories as a matter of statute as opposed to the common law – see Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290.

Where a person is required to witness signatures on a deed, the witness must not be a party to the deed. Ideally a witness should not be a representative, relative, or employee of a party to the deed.

There are specific compliance requirements for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Where the governing law of the deed is New South Wales, Victoria, or Queensland law, witnessing the signing of a deed by an individual may be conducted using real time audio visual technology such as Zoom or FaceTime. There are strict procedural and drafting requirements if witnessing will be conducted using such technologies. Consider seeking specialist advice if a witness and signatory propose to have the signatory’s signature remotely witnessed.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual partner to execute a deed on behalf of a general partnership. It should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Individual partner executing on behalf of partnership must be appointed by deed

You should review the authorising deed to ensure that it has been validly executed and that the individual partner who will be executing the deed has authority under the authorising deed to do so.

Importantly, an individual partner may only execute a deed (rather than an agreement) on behalf of a general partnership if that partner has been appointed by deed (rather than by a verbal or written agreement or other acknowledgement) to do so – for cases on this point in the context of an attorney appointed for an individual see MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636, Commissioner of Stamps (Vic) v Papalia (1982) 12 ATR 866, 869, Re J (enduring power of attorney) [2009] EWHC 436, and Lift Capital Partners Pty Ltd v Merrill Lynch International [2009] NSWSC 7 at [37].

The existence of a partnership deed is not sufficient unless that deed expressly provides that an individual partner has the power to execute a deed so as to bind the partnership.

If the partnership deed does not provide for one partner to execute a deed to bind the partnership, then a power of attorney to that effect which is executed as a deed will be a sufficient authorising document. However, that power of attorney must itself be validly executed as a deed by the partnership.

There are narrow exceptions where the above criteria are not satisfied by which a partnership can sign a deed. They are:

–       in the absence of a deed authorising one partner to execute a deed on behalf of the partnership, all of the partners must execute the deed for it to be valid; and

–       the general law also allows one partner to sign the deed if done so in the presence of all of the other partners.

The execution block available in the G+T Execution App is not appropriate for those situations which are outside the scope of this document.

Witnessing a signature of an individual partner

The execution block available in the G+T Execution App provides for the individual partner who is executing the deed on behalf of the partnership to have their signature witnessed. The witness must be present, either in person or (in some jurisdictions) virtually using a real time audio visual technology, when the deed is executed.

The execution block available in the G+T Execution App has been drafted so that it complies with the laws relating to execution of deeds by an individual in all States and Territories in Australia. While witnessing is not strictly necessary under the laws of Victoria or Queensland, it is recommended that the requirement not be removed for Victoria or Queensland. Witnessing serves an evidentiary as well as a legal purpose.

Witnessing of an individual’s signature is necessary in all other States and Territories as a matter of statute as opposed to the common law – see Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290.

Where a person is required to witness signatures on a deed, the witness must not be a party to the deed. Ideally a witness should not be a representative, relative, or employee of a party to the deed.

There are specific compliance requirements for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Where the governing law of the deed is New South Wales, Victoria, or Queensland law, witnessing the signing of a deed by an individual partner may be conducted using real time audio visual technology such as Zoom or FaceTime. There are strict procedural and drafting requirements if witnessing will be conducted using such technologies. Consider seeking specialist advice if a witness and signatory propose to have the signatory’s signature remotely witnessed.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides several alternative execution blocks for a company to execute a deed by a company by fixing its common seal in accordance with section 127(2) of the Corporations Act 2001 (Cth), as witnessed by:

• two directors;

• a director and a company secretary; or

• for a proprietary company that has a sole director, that director, if:

  • the sole director is also the company secretary; or

  • where there is no company secretary.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories

The execution block available in the G+T Execution App provides for execution by Australian companies pursuant to sections 127(2)(a), 127(2)(b) and 127(3) of the Corporations Act 2001 (Cth). Under those provisions, a company (whether a proprietary company or a public company) can execute a document as a deed if the document is expressed to be executed as a deed the company’s common seal is fixed to the document and the fixing of the seal is witnessed by either:

• two directors; or

• a director and a company secretary.

The requirements of sections 127(2)(a), 127(2)(b) and 127(3) will not be satisfied if only one person witnesses the fixing of the company’s seal, even if that person is both a director and company secretary. Further, those provisions do not permit two company secretaries to witness the fixing of the company’s seal if neither is a director – at least one witness must be, or must also be, a director.

Importantly, a company can execute a deed in accordance with sections 127(2)(a), 127(2)(b) and 127(3) of the Corporations Act even if its constitution only provides for execution by an alternative method or is otherwise silent altogether as to the manner in which execution can occur.

Further, if a deed merely appears to have been executed in accordance with those provisions, a counterparty to the deed may make an assumption that the deed has been duly executed under sections 128 and 129(6) of the Corporations Act (provided the counterparty does not know or suspect the assumption is incorrect under section 128(4)). In practice, because of the significant benefit this assumption provides to a counterparty (avoiding the need to have to prove authority as a threshold matter in the event of a dispute arising between the parties), counterparties will typically insist on execution pursuant to sections 127(2) and 127(3), or otherwise by way of signature in the manner contemplated by section 127(1).

Execution pursuant to the Corporations Act 2001 (Cth) – one signatory

The execution block available in the G+T Execution App provides for execution pursuant to sections 127(2)(c) and 127(3) of the Corporations Act. According to those provisions, a proprietary company (but not a public company) can execute a document as a deed if the document is expressed to be executed as a deed, the company’s common seal is fixed to the document and the fixing of the seal is witnessed by the sole director who is also the company secretary of the company, or if there is no company secretary then by the sole director alone. This method of execution can only be used by proprietary companies because public companies must have a minimum of three directors under section 201A(2) of the Corporations Act.

As noted in the Execution of Deeds section in relation to witnessing by two directors or a director and company secretary, it remains best practice to expressly state in the execution clause that a document is being executed as a deed to avoid any doubt as to the validity of the execution.

Execution can take place under sections 127(2)(c) and 127(3) even if a company’s constitution provides for execution by an alternative method or is otherwise silent altogether as to the manner in which execution can occur. The same presumption of regular execution referred to in the Execution of Deeds section in the context of witnessing of the fixing of a company’s common seal by two directors or a director and company secretary also applies in the case of witnessing by a sole director and company secretary (or by a sole director if there is no company secretary) of a proprietary company.

Ensure the correct people witness the fixing of the seal

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of deeds by foreign corporations.

Delivery

As with other forms of execution of a deed, where a deed purports to have been executed under sections 127(2) and 127(3) of the Corporations Act, it will only take effect from the time it is delivered rather than when it is dated or executed.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides several alternate execution block for a company to execute a deed in accordance with section 127 of the Corporations Act 2001 (Cth) without affixing its common seal if the deed is signed by:

two directors;

• a director and a company secretary; or

• for a proprietary company that has a sole director, that director, if:

  • the sole director is also the company secretary; or

  • where there is no company secretary.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories

The execution block available in the G+T Execution App provides for execution pursuant to sections 127(1)(a), 127(1)(b) and 127(3) of the Corporations Act. According to those provisions, a company can execute a document as a deed without using a common seal if the document is expressed to be executed as a deed and it is signed by:

–    two directors of the company; or

–    one director and one company secretary.

The requirements of sections 127(1)(a), 127(1)(b) and 127(3) will not be satisfied if only one person signs a deed on behalf of a company, even if that person is both a director and company secretary. Further, those provisions do not permit two company secretaries to sign a deed on behalf of a company – rather, at least one signatory must be, or must also be, a director.

A company can execute a deed in accordance with sections 127(1)(a), 127(1)(b) and 127(3) of the Corporations Act even if its constitution only provides for execution by an alternative method or is otherwise silent altogether as to the manner in which execution can occur.

If a deed merely appears to have been executed by signature in accordance with sections 127(1)(a), 127(1)(b) and 127(3), a counterparty to the deed may make an assumption that the deed has been duly executed under sections 128 and 129(6) of the Corporations Act (provided the counterparty does not know or suspect the assumption is incorrect under section 128(4)).  In practice, the availability of this statutory presumption usually causes a counterparty to insist on execution by a company under section 127 of the Corporations Act.

Execution pursuant to the Corporations Act – one signatory

The execution block available in the G+T Execution App provides for execution pursuant to sections 127(1)(c) and 127(3) of the Corporations Act. Under those provisions, a proprietary company (but not a public company) can execute a document as a deed if the document is expressed to be executed as a deed and is signed by:

• the company’s sole director and sole company secretary; or

• the company’s sole director (where there is no company secretary).

Again, it remains best practice to expressly state in the execution clause that a document is being executed as a deed to ensure compliance with section 127(3).

Execution can take place under sections 127(1)(c) and 127(3) even if a company’s constitution provides for execution by an alternative method or is otherwise silent altogether as to the manner in which execution can occur. Again, where a deed merely appears to have been signed by a sole director and company secretary (or sole director only) of a proprietary company, there will be a presumption of due execution under sections 128 and 129(6) of the Corporations Act.

Ensure the correct person signs the deed

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity or capacities of the person who is signing the deed.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of deeds by foreign corporations.

Delivery

As with other forms of execution of a deed, where a deed purports to have been executed under sections 127(1) and 127(3) of the Corporations Act, it will only take effect from the time it is delivered rather than when it is dated or executed.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for a deed to be executed by a company without using a common seal by the signature of its authorised signatory. The execution block available in the G+T Execution App should be used in conjunction with the important notes which follow below.

Execution pursuant to the Corporations Act 2001 (Cth) – section 126

The execution block available in the G+T Execution App provides for execution pursuant to section 126 of the Corporations Act 2001 (Cth). Section 126 of the Corporations Act provides that a company’s power to make, vary, ratify or discharge a contract, or execute a document (including a deed) may be exercised by an individual acting with the company’s express or implied authority and on behalf of the company. Section 126(4) expressly provides that the individual does not need to be appointed by deed.

If an agent executes a document on behalf of a company in accordance with section 126, others are able to rely on the assumptions in subsection 129(3) of the Corporations Act for dealings in relation to the company. Section 129(3) states that a person may assume that anyone who is held out by the company to be an officer or agent of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company. This is subject to an exception in section 128(4) of the Act that states that a person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

Consider seeking specialist advice in situations where the authorised signatory’s power is or may be implied.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual to execute a deed as a trustee. It should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that they have power to execute the document.

If the trustee is not being required to give warranties about their authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after inserting the name of the trust.

Witnessing a signature of an individual as trustee

The execution block available in the G+T Execution App provides for the individual who is executing the deed as trustee to have their signature witnessed. The witness must be present, either in person or (in some jurisdictions) virtually using a real time audio visual technology, when the deed is executed.

The execution block available in the G+T Execution App has been drafted so that it complies with the laws relating to execution of deeds by an individual in all States and Territories in Australia. While witnessing is not strictly necessary under the laws of Victoria or Queensland, it is recommended that the requirement not be removed for Victoria or Queensland. Witnessing serves an evidentiary as well as a legal purpose.

Witnessing of an individual’s signature is necessary in all other States and Territories as a matter of statute as opposed to the common law – see Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290.

Where a person is required to witness signatures on a deed, the witness must not be a party to the deed. They should also not be a beneficiary of a trust executing the deed. Ideally a witness should not be a representative, relative, or employee of a party to the deed.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Where the governing law of the deed is New South Wales, Victoria, or Queensland law, witnessing the signing of a deed by an individual may be conducted using real time audio visual technology such as Zoom or FaceTime. There are strict procedural and drafting requirements if witnessing will be conducted using such technologies. Consider seeking specialist advice if a witness and signatory propose to have the signatory’s signature remotely witnessed.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides alternative execution blocks for a company to execute a deed as a trustee in accordance with section 127 of the Corporations Act 2001 (Cth) using its common seal in the presence of either:

• two directors;

• a director and a company secretary; or

• for a proprietary company that has a sole director, that director, if:

  • the sole director is also the company secretary; or

  • where there is no company secretary.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act 2001 (Cth).

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories or one signatory

The same considerations apply here as those raised earlier in the Execution of Deeds section of this document in the context of execution by a company in its own (non-trustee) capacity by fixing its common seal, witnessed by two signatories or the sole director of a proprietary company (whether that person is or is not also appointed as company secretary). Reference should be made to that commentary if you are seeking to rely on sections 127(2) and 127(3) to allow execution of a deed by a company in its trustee capacity by fixing its common seal.

Ensure the correct people witness the fixing of the seal

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Use this execution block only for an Australian corporation

The execution block available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of deeds by foreign corporations.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides alternative execution blocks for a company to execute a deed as a trustee in accordance with section 127 of the Corporations Act 2001 (Cth)  without affixing its common seal in the presence of either:

• two directors or a director and a company secretary; or

• a sole director, who is also the company secretary or if there is no company secretary, (in the case of a proprietary company).

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Deeds and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act 2001 (Cth).

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories or one signatory

The same considerations apply here as those raised earlier in the Execution of Deeds section of this document in the context of execution by a company in its own (non-trustee) capacity by the signature of two directors, a director and company secretary or a sole director of a proprietary company (whether that person is or is not also appointed as company secretary). Reference should be made to that commentary if you are seeking to rely on sections 127(1) and 127(3) to allow execution of a deed by a company in its trustee capacity by the signature of those persons.

Ensure the correct people sign the deed

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are signing the deed.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations that are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of deeds by foreign corporations.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for a deed to be executed by a corporate trustee without using a common seal by the signature of its authorised signatory. The execution block available in the G+T Execution App should be used in conjunction with the important notes which follow below.

Execution pursuant to the Corporations Act 2001 (Cth) – section 126

The execution block available in the G+T Execution App provides for execution pursuant to section 126 of the Corporations Act 2001 (Cth). Section 126 of the Corporations Act provides that a company’s power to make, vary, ratify or discharge a contract, or execute a document (including a deed) may be exercised by an individual acting with the company’s express or implied authority and on behalf of the company. Section 126(4) expressly provides that the individual does not need to be appointed by deed.

If an agent executes a document on behalf of a company in accordance with section 126, others are able to rely on the assumptions in subsection 129(3) of the Corporations Act for dealings in relation to the company. Section 129(3) states that a person may assume that anyone who is held out by the company to be an officer or agent of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company. This is subject to an exception in section 128(4) of the Act that states that a person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

Consider seeking specialist advice in situations where the authorised signatory’s power is or may be implied.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual to execute an agreement. It should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Witnessing is for evidentiary purposes

The execution block available in the G+T Execution App provides for the individual who is executing the agreement to have their signature witnessed. For agreements, witnessing has an evidentiary purpose, rather than a purpose of ensuring that the party executing the contract is bound to its terms.

If a witness is used, that witness must be present, either in person or virtually using a real time audio visual technology, when the agreement is signed. They should not be a party to the agreement. Ideally a witness should not be a representative, relative, or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual to execute an agreement as an attorney. The execution block can be used for an individual executing an agreement as attorney for either an individual or a company – however, if the individual is acting as attorney for a company it may be more appropriate for that attorney to sign in a manner authorised by section 126 of the Corporations Act 2001 (Cth). See the information contained in the heading Execution pursuant to section 126 of the Corporations Act.

It should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Ensure the person signing the agreement is authorised to do so

You should review the authorising power of attorney to ensure that it has been validly executed and that the attorney who will be signing the agreement has authority under the authorising power of attorney to do so.

Attorney signs their own name

This execution block available in the G+T Execution App provides for the attorney to sign their own name. An attorney can sign in their own name if either:

• the power of attorney expressly permits them to do so; and / or

• the power of attorney is governed by the law of a jurisdiction which has such statutory provision allowing the attorney to sign in their own name. Except in the Australian Capital Territory and South Australia, statute law in each State and Territory permits an attorney, when exercising its power to execute documents on behalf of the principal, to sign a document using the attorney’s own signature.

Outside these circumstances, the attorney may not be able to sign in their own name. Consider seeking specialist advice.

No requirement for attorney to be appointed by way of a deed

Where a company appoints an individual as its attorney to sign an agreement, this does not need to be done using a deed. 

Circumstances in which statutory assumptions of due execution are not available

Where a company executes an agreement by way of an attorney and this occurs other than in accordance with section 126 of the Corporations Act 2001 (Cth), the important presumptions of due execution under sections 128-129 of the Corporations Act 2001 are not available in relation to the agreement itself as the execution is not in accordance with section 126. However, those presumptions will be available in relation to the execution of the underlying power of attorney if it has been executed under sections 126 or 127.

Sections 127-129 of the Corporations Act are discussed in further detail in the Execution block for Company section, as well as in the balance of this Execution of Agreements section.

Registration of powers of attorney

There is a statutory requirement in most jurisdictions that any power of attorney authorising dealings with land must be registered to give validity to those dealings. The only exceptions to this general rule are:

• Western Australia, where registration of a power of attorney is not required (although a power of attorney may be deposited with Landgate);

• Victoria, where no power of attorney is required to be registered;

• Tasmania, where all powers of attorney are required to be registered; and

• the Australian Capital Territory, where there are additional registration requirements for powers of attorney that are created in respect of conveyances or deeds.

The registration requirements in the various jurisdictions (including the precise circumstances in which registration is required) fall outside of the scope of this material. If registration of the power of attorney may be required, consider seeking specialist advice. This execution clause may not be appropriate where registration is required.

As a general rule, if an instrument is executed under an invalid power of attorney or a power of attorney that post-dates the signed instrument, registering the power of attorney will not validate the instrument.

Witnessing is for evidentiary purposes

The execution block available in the G+T Execution App provides for the attorney who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

If a witness is used, that witness must be present, either in person or virtually using a real time audio visualreal-time audio-visual technology, when the agreement is signed. They should not be a party to the agreement. Ideally a witness should not be a representative, relative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual partner to execute an agreement on behalf of a general partnership. It should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Individual partner executing on behalf of partnership

Legislation in each Australian jurisdiction provides that a partner can bind the entire partnership by executing in the partnership’s name an instrument relating to the business of the partnership.

Ensure the person signing the agreement is authorised to do so

You should review the partnership agreement (if there is one) to ensure that there are no restrictions on the execution of agreements by partners on behalf of the partnership (for example, providing that agreements over a certain monetary sum can only be signed by two or more partners).

Witnessing is for evidentiary purposes

The execution block available in the G+T Execution App provides for the partner who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes. It is not necessary as a matter of law.

If a witness is used, that witness must be present, either in person or virtually using a real time audio visual technology, when the agreement is signed. They should not be a party to the agreement. Ideally a witness should not be a representative, relative, or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides alternative execution blocks for a company to execute an agreement in accordance with section 127 of the Corporations Act 2001 (Cth) using its common seal in the presence of either:

• two directors;

• a director and a company secretary; or

• for a proprietary company that has a sole director, that director, if:

  • the sole director is also the company secretary; or

  • where there is no company secretary.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories

The execution block available in the G+T Execution App provides for execution pursuant to sections 127(2)(a) and 127(2)(b) of the Corporations Act. According to those provisions, a company can execute a document as an agreement (as distinct from a deed) if the company’s seal is fixed to the agreement and the fixing of the seal is witnessed by either:

• two directors; or

• a director and a company secretary.

The requirements of sections 127(2)(a) and 127(2)(b) will not be satisfied if only one person witnesses the fixing of the company’s seal, even if that person is both a director and company secretary. Further, those provisions do not permit two company secretaries to witness the fixing of the company’s common seal if neither is a director – rather, at least one witness must be, or must also be, a director.

Execution under sections 127(2)(a) and 127(2)(b) is possible irrespective of what is contained in a company’s constitution.

Significantly, if it merely appears that execution has taken place in compliance with those provisions, the presumptions of regular execution in sections 128 and 129(6) of the Corporations Act will apply (unless a counterparty knows or suspects the agreement was not properly executed). As noted in the Execution of Deeds section, these presumptions are of great value to a counterparty and in practice result in a counterparty insisting that an agreement is executed by a company under sections 127(2)(a) and 127(2)(b), or otherwise under section 127(1) by the signature of two directors, a director and company secretary or the sole director and company secretary of a proprietary company (discussed in this Execution of Agreements section).

Execution pursuant to the Corporations Act 2001 (Cth) – one signatory

The execution block available in the G+T Execution App provides for execution pursuant to section 127(2)(c) of the Corporations Act. That section permits a proprietary company (but not a public company) to execute a document as an agreement if the company’s seal is fixed to the document and the fixing of the seal is witnessed by the sole director of the company. This method of execution can only be used by proprietary companies because public companies must have a minimum of three directors under section 201A(2) of the Corporations Act.

Again, a proprietary company can execute an agreement in accordance with section 127(2)(c) even if that is not expressly permitted by its constitution and if it appears that manner of execution has been used, the statutory presumptions of regular execution under sections 128 and 129(6) referred to above will be invoked.

Ensure the correct people witness the fixing of the seal

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Seek specialist advice in relation to the execution of agreements by foreign corporations.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

• The G+T Execution App provides alternative execution blocks for a company to execute an agreement in accordance with section 127 of the Corporations Act 2001 (Cth) without using a common seal by the signature of either:

• two directors;

• a director and a company secretary; or

• for a proprietary company that has a sole director, that director, if:

  • the sole director is also the company secretary; or

  • where there is no company secretary.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories

The execution block available in the G+T Execution App provides for execution pursuant to sections 127(1)(a) and 127(1)(b) of the Corporations Act. That section provides that a company can execute a document as an agreement without using a common seal if the document is signed by either:

• two directors; or

• a director and a company secretary.

As with the execution of an agreement by witnessing the fixing of a company’s common seal (see the discussion in this Execution of Agreements section, Execution block for Company (with common seal), execution of an agreement by way of signature under sections 127(1)(a) and 127(1)(b):

• requires the signature of two people (not a single person who is both a director and company secretary) and is not satisfied by the signature of two company secretaries;

• can occur notwithstanding anything contained in a company’s constitution; and

• invokes the statutory presumptions of regular execution in sections 128 and 129(6) of the Corporations Act when it appears the requirements have been complied with (absent a counterparty’s knowledge or suspicion to the contrary).

Execution pursuant to the Corporations Act 2001 (Cth) – one signatory

The execution block available in the G+T Execution App provides for execution pursuant to section 127(1)(c) of the Corporations Act. According to that section, a proprietary company (but not a public company) can execute a document as an agreement without using a common seal if the document is signed by the sole director of the company (whether or not that person is also the company secretary of the company). A public company cannot rely on section 127(1)(c) because it must have a minimum of three directors under section 201A(2).

As is the case in relation to execution under section 127(2)(c) by witnessing the affixation of a company’s common seal, execution by way of signature under section 127(1)(c):

• requires a person to be specifically appointed as both a director and company secretary of a proprietary company, unless there is no company secretary;

• applies notwithstanding anything contained in a company’s constitution; and

• invokes the presumptions of regular execution in sections 128 and 129(6) of the Corporations Act, provided a counterparty does not know or suspect anything to the contrary.

Ensure the correct people sign the agreement

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are signing the agreement.

Use this execution block only for an Australian corporation

The execution block available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of agreements by foreign corporations.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for a company to execute an agreement without using a common seal by the signature of its authorised signatory. The execution block should be used in conjunction with the important notes which follow below.

Execution pursuant to the Corporations Act 2001 (Cth) – section 126

The execution block available in the G+T Execution App provides for execution pursuant to section 126 of the Corporations Act. That section provides that a company can execute a document as an agreement without using a common seal if the power to do so is exercised by an individual acting with the company’s express or implied authority and on behalf of the company.

Section 126 of the Corporations Act may be employed to permit an authorised signatory to execute an agreement for a company as agent, without a power of attorney in the form of a deed having been formally used to appoint the person. This section permits the execution of agreements on behalf of a company by mere authorised signatories, who can sign as the company’s agent with the company’s express or implied authority.

The counterparty to the agreement might require proof that the individual is acting with the company’s authority. However, the statutory presumptions as to proper execution of an agreement by a person with authority (contained in section 129 of the Corporations Act) will apply in relation to execution under section 126. In practice, a counterparty may still prefer that execution takes place under section 127 rather than section 126.

Consider seeking specialist advice in situations where the authorised signatory’s power is or may be implied.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of agreements by foreign corporations.

Witnessing is for evidentiary purposes

The execution block available in the G+T Execution App provides for the authorised signatory who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

If a witness is used, that witness must be present, either in person or virtually using a real time audio visual technology, when the agreement is signed. They should not be a party to the agreement. Ideally a witness should not be a representative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides an execution block for an individual to execute an agreement as a trustee. It should be used in conjunction with the important general notes regarding the Execution of Agreements and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that they have power to execute the document.

If the trustee is not being required to give warranties about their authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after inserting the name of the trust.

Witnessing is for evidentiary purposes

The execution block available in the G+T Execution App provides for the individual who is executing the agreement as trustee to have their signature witnessed. This requirement has been included for evidentiary purposes. It is not necessary as a matter of law.

If a witness is used, that witness must be present, either in person or virtually using a real time audio visual technology, when the agreement is signed. They should not be a party to the agreement. They should also not be a beneficiary of the trust. Ideally a witness should not be a representative, relative, or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider seeking specialist advice in these circumstances.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides alternative execution blocks that should be used in conjunction with the important general notes regarding Execution of Agreements and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act 2001 (Cth).

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories or one signatory

The same considerations apply here as those raised earlier in the Execution of Agreements section of this document in relation to execution by a company in its own (non-trustee) capacity by fixing its common seal, witnessed by two signatories or the sole director and (if it has one) secretary of a proprietary company. Reference should be made to that commentary if you are seeking to rely on section 127(2) of the Corporations Act to allow an agreement to be executed by a company in its trustee capacity by fixing its common seal.

Ensure the correct people witness the fixing of the seal

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Use these execution blocks only for an Australian corporation

The execution blocks available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). They should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of agreements by foreign corporations.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The execution blocks available in the G+T Execution App should be used in conjunction with the important general notes regarding the Execution of Agreements and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act 2001 (Cth).

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories two signatories or one signatory

The same considerations apply here as those raised earlier in the Execution of Agreements section in the context of execution by a company in its own (non-trustee) capacity by the signature of two directors, a director and company secretary or the sole director of a proprietary company. Reference should be made to that commentary if you are seeking to rely on section 127(1) of the Corporations Act to allow execution of an agreement by a company in its trustee capacity by the signature of those persons.

Ensure the correct people sign the agreement

Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are signing the agreement.

Use this execution block only for an Australian corporation

The execution block available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of agreements by foreign corporations.

Refer to the Electronic Execution section regarding when electronic signatures can be used to execute agreements.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

The G+T Execution App provides execution block that should be used in conjunction with the important general notes regarding the Execution of Agreements and specific information that follows below.

Execution by trustees

Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts. Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block available in the G+T Execution App by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act 2001 (Cth).

Execution pursuant to the Corporations Act 2001 (Cth) – section 126

The same considerations apply here as those raised earlier in the Execution of Agreements section in the context of execution by a company in its own (non-trustee) capacity by way of its authorised signatory. Reference should be made to that commentary if you are seeking to rely on section 126 of the Corporations Act to allow execution of an agreement by a company in its trustee capacity by the signature of an authorised signatory.

Use this execution block only for an Australian corporation

The execution block available in the G+T Execution App should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act 2001 (Cth). It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act 2001 (Cth)).

Consider seeking specialist advice in relation to the execution of agreements by foreign corporations.

Refer to the Electronic Execution section regarding when electronic signatures can be used to execute agreements.

Disclaimer

The execution blocks available in the G+T Execution App and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.