A deed is a common written document used between parties, typically without the need for consideration, to create a binding commitment or promise to perform specified obligations.
Signing a deed can be tricky, as the requirements are more strict than other documents, and the rules are different across jurisdictions in Australia. Executing a deed that spans multiple jurisdictions can present several practice challenges. Failing to use the correct wording may result in the document not being legally recognised as a deed.
The following provides general guidance on how to execute deeds across Australia.
General requirements to sign a deed
Historically, a deed must be in physical form (traditionally on either paper, parchment or vellum), signed by parties, authenticated by a wax seal and delivered. Recent legislative changes have relaxed some requirements for signing a deed, though these requirements vary across the States and Territories. At common law, the general principles include:
- the entire document must be printed (not just the signature page) when the document is signed;
- the document must clearly state that it is intended to be a deed, with the phrase “Executed as a deed” used throughout the document;
- usually the document will include specific words such as “signed, sealed and delivered” in execution block. In some jurisdictions, like New South Wales, a simple phrase “Executed” may suffice. Although the requirements for this wording vary by jurisdiction, “signed, sealed and delivered” is generally the safest wording;
- a deed must be sealed to be valid. While historically an actual seal was required, this is no longer necessary. Instead, the execution block that indicates the deed is “sealed” now satisfies this requirement; and
- a deed must be delivered to be valid. Delivery, however, does not mean physical delivery. Instead, it means the conduct that shows the parties’ intention to be bound by the deed. The express words “signed, sealed and delivered” create a common law presumption that the deed is also delivered when signed and sealed. Disputes can sometimes arise as to whether a deed has been duly delivered where one but not all of the parties have signed the document.
Execution requirements across Australia
The correct way to execute a deed is usually determined by the laws of the State or Territory where the deed is executed. While the general principles are consistent, specific requirements can still vary across States and Territories in Australia, especially regarding witness requirements and the use of electronic signatures.
Since COVID-19, many jurisdictions have introduced provisions allowing deeds to be signed electronically. However, not all States and Territories have followed the same approach, parties need to exercise caution if they intend to execute a deed electronically.
The following tables provides general guidance on key requirements for signing a deed for individuals and corporations in different States and Territories in Australia:
Individual
Jurisdictions | Is electronic execution of deeds permitted? | Does the deed have to be witnessed? | Is remote witnessing allowed? |
New South Wales | ✓ | ✓ | ✓ |
Victoria | ✓ | X
(not required, but highly recommended) |
✓ |
Queensland | ✓ | X
(not required, but highly recommended) |
✓ |
South Australia | X | ✓ | X |
Western Australia | X | ✓ | X |
Tasmania | X | ✓ | X |
Australia Capital Territory | X | ✓ | X |
Northern Territory | X | ✓ | X |
Corporation
Jurisdictions | Is electronic execution of deeds permitted? | Does the deed have to be witnessed? | Is remote witnessing allowed? |
New South Wales | ✓ | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Victoria | ✓ | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Queensland | ✓ | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
South Australia | ✓[1] | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Western Australia | ✓[2] | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Tasmania | ✓[3] | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Australia Capital Territory | ✓[4] | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Northern Territory | ✓[5] | Witnessing not required unless the company signs using its common seal. | ✓ if execution is witnessed |
Electronic execution by corporations
Legislation in New South Wales (s 38A of Conveyancing Act 1919 (NSW)), Victoria (s 12A of Electronic Transactions (Victoria) Act 2000 (Vic)) and Queensland (ss 46C-46G of Property Law Act 1974 (Qld)) have modified the common law requirements for deed execution, explicitly permitting deeds to be signed electronically.
Other states, on the other hand, do not have similar legislation specifically allowing the electronic execution of deeds. However, those states all have provisions that permit execution of a deed by a company in ways authorised by other laws:
- Western Australia: s 10(7) of Property Law Act 1969 (WA);
- Northern Territory: s 48(6) of Law of Property Act 2000 (NT); and
- Australia Capital Territory: s 227(8) of Civil Law (Property) Act 2006.
Section 110A of the Corporations Act 2001 (Cth) enables documents, including deeds, to be signed electronically if executed by a person under s 126 or s 127 of the Corporations Act. As a result, deeds signed electronically by companies registered under the Corporations Act may also be considered validly executed in these states.
In addition, two states have legislation specifically validating defective execution when external evidence confirms the party intended to be bound by a deed:
- South Australia: ss 41(4) and 41(5) of Law of Property Act 1936 (SA); and
- Tasmania: ss 63(4) and 63(5) of Conveyancing and Law of Property Act 1884 (Tas).
Key takeaway
Executing deeds across different jurisdictions in Australia requires close attention to specific rules on electronic execution, witnessing, and company requirements unique to each State and Territory. By understanding these requirements, addressing them early, and seeking legal advice, parties can execute deeds with confidence, ensuring they are enforceable minimising the risk of legal issues arising down the line.
If you would like to discuss this article with us, please contact David Greenberg, partner, or Mengting Wang, Associate on (02) 9261 5900
[1] See s 41(4) Law of Property Act 1936 (SA) and s 110A and s 127 of Corporations Act 2001 (Cth), also see cases: Betterway Health Care International Group Pty Ltd V Ferngrove Pharmaceuticals Pty Ltd [2021] SADC 63; Gouger Street Pty Ltd V Diakou Nominees Pty Ltd [2023] SASC 66.
[2] See s 10(7) of Property Law Act 1969 (WA), and s 110A and s 127 of Corporations Act 2001 (Cth), also see case: Re Ozgrowth Ltd; Ex Parte Ozgrowth Ltd [No 2] [2022] WASC 167.
[3] See s 63(4) of Conveyancing and Law of Property Act 1884 (TAS) and s 110A and s 127 of Corporations Act 2001 (Cth).
[4] See s 227(8) of Civil Law (Property) Act 2006, and s 110A and s 127 of Corporations Act 2001 (Cth)
[5] See s 48(6) of Law of Property Act 2000 (NT), and s 110A and s 127 of Corporations Act 2001 (Cth).