Stephen Harvey & Dean Saxvik, current as of: 27 April 2023.
Permanent changes to the execution and witnessing of deeds have been passed by the Federal government and certain State governments. And it is understood the Federal attorney-general’s department is currently in the process of preparing legislation to enable deeds to be executed digitally in a uniform manner across the country.
Currently, Queensland, New South Wales and Victoria have passed permanent changes, while South Australia, Western Australia, Tasmania, the ACT and Northern Territory have not.
The below table summarises the current position in each jurisdiction and provides guidance on where to find further information.
Whilst the electronic execution of deeds is expressly permitted by the legislation in some jurisdictions, acceptance of electronically executed deeds by third parties (i.e., banks, titles/revenue offices) may vary.
The method used to electronically execute a document should be reliable as appropriate and the signee should always be properly identified.
Permanent Changes – Commonwealth, Queensland, New South Wales & Victoria
Jurisdiction
Company Execution of Deeds
Company Witnessing of Deeds
Individual Execution of Deeds
Individual Witnessing of Deeds
Relevant legislation
Commonwealth
Electronic execution of deeds by a company is permitted
Split execution of documents by a company using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal
Each counterpart signed must be the whole document, not just the execution page.
May be signed without a witness
If witnessing, this can be done by audio visual link provided specified procedural requirements are followed
Witnessing of the fixing of a common seal can be done remotely
N/A
N/A
Corporations Act 2001 (Cth) – Sections 110A and 127
Queensland
May be in electronic form
May be signed electronically provided specified procedural requirements are followed
Split execution of documents using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal
May be signed without a witness
If witnessing, this can be done by audio visual link provided specified procedural requirements are followed
May be in electronic form
May be signed electronically provided specified procedural requirements are followed
Split execution of documents using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal
May be signed without a witness
If witnessing, this can be done by audio visual link provided specified procedural requirements are followed
Property Law Act 1974 (Qld) – Sections 44 to 46
New South Wales
May be in electronic form
May be signed electronically provided specified procedural requirements are followed
Signing may be witnessed by audio visual link provided specified procedural requirements are followed
May be in electronic form
May be signed electronically provided specified procedural requirements are followed
Witnessing is required
Signing may be witnessed by audio visual link provided specified procedural requirements are followed
Conveyancing Act 1919 (NSW) – Section 38 and 38A as amended by Customer Service Legislation Amendment Act 2021 (NSW)
Electronic Transactions Act 2000 (NSW) – Part 2B as amended by Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW)
Victoria
Deeds may be in electronic form and signed electronically
May be signed without a witness
If witnessing, this can be done by audio visual link provided specified procedural requirements are followed
Deeds may be in electronic form and signed electronically
May be signed without a witness
If witnessing, this can be done by audio visual link provided specified procedural requirements are followed
Property Law Act 1958 – Section 73A
Electronic Transactions (Victoria) Act 2000 – Sections 12 to 12B as amended by Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 – Part 10
Current Position – Australian Capital Territory, Tasmania, South Australia, Western Australia and Northern Territory
Jurisdiction
Company Execution of Deeds
Company Witnessing of Deeds
Individual Execution of Deeds
Individual Witnessing of Deeds
Relevant legislation
Australian Capital Territory
The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth)
Follow Corporations Act 2001 (Cth)
May not be in electronic form
May not be signed electronically
Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause
Must be signed with a witness.
The witness must be present
Civil Law (Property) Act 2006 (ACT) – Section 219
Tasmania
The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth)
Follow Corporations Act 2001 (Cth)
May not be in electronic form
May not be signed electronically
Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause
Must be signed with a witness
The witness must be present
Conveyancing and Law of Property Act 1884 (Tas) – Section 63
South Australia
The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth)
Follow Corporations Act 2001 (Cth)
May not be in electronic form
May not be signed electronically
Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause
Must be signed with a witness
The witness must be present
Law of Property Act 1936 (SA) – Section 41
Western Australia
The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth)
Follow Corporations Act 2001 (Cth)
May not be in electronic form
May not be signed electronically
Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause
Must be signed with a witness
The witness must be present
Property law Act 1969 (WA) – Section 9
Northern Territory
The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth)
Follow Corporations Act 2001 (Cth)
May not be in electronic form
May not be signed electronically
Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause
Must be signed with a witness
The witness must be present
Law of Property Act (NT) – Section 47
Get in touch with our Legal Team if you have any queries.
Acis does not provide advice in relation to taxation, duty, company law or any other matter. We do not purport to give advice nor should you construe anything in any correspondence with us or material provided by us as advice of any kind.
An accountant, a conveyancer and a financial adviser walk into a bar. Kidding. Let me tell you what they really did: they all called Acis in the last few weeks, querying whether a trust established in Queensland needed to be “stamped” in New South Wales before it could acquire property there. It is certainly not an uncommon question for us to receive, but three times in the same number of weeks is definitely higher than usual. In this article we will answer that question, and other questions we regularly receive, in relation to duty and the establishment of trusts.
It is important to note first, however, that our discussions here are limited to:
the liability to pay duty on the establishment of a trust. If a trust, post establishment, goes on to purchase assets or transact in other ways that incur duty liabilities, it will be assessed for duty, generally based on the State in which the transaction takes place or where the asset is located. This is distinct from duty payable on the actual establishment of a trust, which we will discuss here.
trusts established over non-dutiable property. This article is not intended to provide guidance in relation to the establishment of a trust over dutiable or identifiable property. Rather, it will discuss the liability for duty of a trust established over non-dutiable or unidentifiable property only, for example, a $10 Settlement Sum.
Question: Does a trust established in Queensland need to be “stamped” in New South Wales before it can acquire property there (NSW)?
Answer: No
Any duty on the establishment of a trust is almost always determined by where the trust deed is signed. The New South Wales Duties Act only imposes duty on the establishment of a trust over non-dutiable property if the instrument (trust deed) is “executed in New South Wales”. If a trust deed is wholly executed in Queensland, no duty should be payable in New South Wales in relation to the establishment of that trust – the New South Wales Duties Act cannot “capture” the act of establishing the trust as the trust deed was not executed in “New South Wales”.
As mentioned above, if the trust goes on to acquire property in New South Wales then duty will be payable on that acquisition, in New South Wales. This is distinct, however, from duty payable on the actual establishment of the trust.
Question: If the trust deed for a trust that was established in New South Wales stipulates that the Jurisdiction or Applicable Law for the trust is Victoria, is there a Victorian liability to pay duty on the trust’s establishment?
