Persons
A plan or instrument must be executed by the registered proprietor(s) in person, or by one of the following substitutes:
- an agent under power (attorney, receiver, delegate, administrator, liquidator)
- a statutory agent (e.g. a Sheriff)
- a judicial agent (appointed by a court) or
- a person directed to sign a registered proprietor's signature see s.38(lA)(a) Conveyancing Act 1919.
Any agent executing a document must state the source of their authority.
Corporations (excluding local councils)
The Corporations Act 2001 (Commonwealth legislation) enables a company to:
Execute documents under seal
A company with a common seal may execute a document if the seal is fixed to the document and the fixing is witnessed by:
- two directors of the company, or
- a director and a company secretary of the company, or
- for a proprietary company with sole director who is also sole company secretary, that director.
See s.127(2)Corporations Act 2001 (Commonwealth legislation)
The seal affixed to a s.88B instrument should be witnessed as in example 2.
Execution by a company without a seal
A company without a company seal may execute documents by personal signature. A company may execute a document without using a common seal if the document is signed by:
- two directors of the company, or
- a director and a company secretary of the company, or
- for a proprietary company with sole director who is also the sole company secretary, that director.
See s.127(1) Corporations Act 2001 (Commonwealth legislation)
The signatures on a Section 88B instrument should be set out as in example 4.
Execution by a financial institution as mortgagee
A financial institution, being the mortgagee registered on the current title must endorse the administration sheet (and any applicable Section 88B Instrument) of the plan with an appropriate stamp. The stamp should be signed by a delegated officer of the institution under power of attorney and duly witnessed. The Book and No of the Power of Attorney and the signature of the witness should be included on the plan and instrument.
Execution by a company under administration, in receivership or in liquidation
The execution should be made under the seal of the company and by the Administrator / Receiver / Liquidator and suitably witnessed.
Execution by a foreign company
An execution by a foreign company must:
- where the company has been registered with ASIC and has been allocated an ARBN - in the same manner as an Australian company
- where the company has not been registered with ASIC - by means of a statutory declaration or other appropriate statement.
Further
- an execution attested to by the Clerk, Secretary or other authorised officer, or a member of the Board of Directors, council or other governing body, is deemed to be in accordance with s.51A(1) Conveyancing Act 1919
- a corporation may authorise one or more officers, or other agent, to execute a plan or instrument on its behalf. The execution by this officer or agent must include a statement as to the source of their authority,and
- documents executed in New South Wales under the Oaths Act 1900, must be executed by person(s) authorised by the corporation and not under seal. The execution by this person must include a statement as to the source of their authority.
- an execution under a Power of Attorney must make reference to the deed registered in NSW LRS (Book and No) and must be suitably witnessed.
For more information regarding the correct names of companies see Dealings involving companies.
Marksperson
A marksperson is someone who is unable to write, through illiteracy or otherwise, but is able to make a 'mark', usually an 'X'. A marksperson will execute a plan by affixing their mark. This form of execution requires a specific form of attestation see example 3.
Solicitor or licensed conveyancer
A plan or instrument can be executed by the solicitor or licenced conveyancer on behalf of a client who benefits from the terms of the document, e.g. where they act for the transferee(s) of land or the owner of the dominant tenement of an easement set out in the section 88B instrument.
They cannot execute a plan or instrument on behalf of a registered proprietor, transferor, mortgagee, or lessee or on behalf of the owner of the servient tenement of the easement. Also they must not execute a plan or instrument on behalf of a dominant tenement of an easement, in a variation or release of that easement.
In signing a document for the party they act for, the solicitor or licensed conveyancer:
- must use their usual signature, and
- must include a statement declaring who they act for, their authority to sign and their full name (printed), and
- need not have their signature witnessed
Local councils
Where a local council is the registered proprietor of the land comprised in the plan or they are a prescribed authority they must execute the plan and or section 88B instrument. NSW LRS Circular 2016-10 (PDF 63 KB) provides directions for the execution.
Aboriginal Land Councils
Under the provisions of the Aboriginal Land Rights Act 1983 (NSW) land may be vested in:
- the New South Wales Aboriginal Land Council or
- a Local Aboriginal Land Council
Any new plan of subdivision, consolidation or easement (and any other miscellaneous plan) must be executed in accordance with the provisions set out in the Aboriginal Land Rights Act 1983 and be accompanied by a completed Registration Approval Certificate.
Execution by a delegated officer
A statutory authority, major financial institution etc may execute a plan by means of the signature of an authorised officer of the organisation. The signature must clearly indicate that it has been signed under delegation in a form similar to:
<Signature>
Signed by me < Name of officer> as a delegate of
<statutory authority> and I hereby certify that
I have no notice of revocation of such delegation:
......................................
<Name of Officer>
A co-operative housing society may execute a plan by an authorised officer of the society. The full name and capacity of the delegate should be stated and the signature appropriately witnessed.
Incorporated associations
A plan for an incorporated association must be executed:
- under Seal and
- attested by
- two members of the committee or
- one member of the committee plus the public officer or secretary.
The capacity of these signatures must be stated.