Company Execution Clauses

Under s.127 of the Corporations Act 2001, a company may: execute documents under seal or choose not to have a company seal and therefore execute documents without using a seal.

If a company has a seal it is not obliged to use it for the execution of documents. Documents executed by a corporation do not require witnessing by a qualified witness.

A Company search should be conducted to confirm who are the Directors and Secretaries for the Company.

Examples of Execution with a Common Seal

Where documents are executed with a Common Seal, the following form of execution is suggested as applicable to most corporations. The persons signing should show the position they hold in the company and print their full name under their signature:

The Common Seal of XYZ Co Pty Ltd
was hereunto affixed in the presence of

Signature of Director Affix
(Print Full Name) Common
Director Seal

Signature of Director/Secretary Here
(Print Full Name)
Director/Secretary

Please note: One person cannot attest the affixing of the Common Seal in two different capacities, i.e. as Director and as Director/Secretary unless that person is the sole Director and also the sole Secretary of the company.

The following form of execution is applicable to proprietary companies that have only one Director who is also the only Secretary of the company:

The Common Seal of XYZ Co Pty Ltd
was hereunto affixed in the presence of Affix

Signature Common
(Print Full Name) Seal
Sole Director and Sole Secretary Here

Examples of Execution without a Common Seal

Where documents are executed without a Common Seal, the persons signing should show the position they hold in the company and print their name under their signature:

Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .
Signature of Director
(Print Full Name)
Director

Signature of Director/Secretary
(Print Full Name)
Director/Secretary

The following form of execution is applicable to proprietary companies that have only one Director who is also the only Secretary of the company:

Executed by XYZ Co Pty Ltd ACN . . . . . . . . . . . . . . .
Signature of Director
(Print Full Name)
Sole Director and Sole Secretary

Where a document is executed using a company’s common seal, the common seal must contain the company’s name and:

• the company’s Australian Company Number or the abbreviation A.C.N. and the 9 digit Australian Company Number

or

• the company’s Australian Business Number or the abbreviation A.B.N. and the 11 digits comprising the Australian Business Number. (This option is only available where the 9 digits of the company’s A.C.N. are the same, and in the same order as the last 9 digits of the A.B.N., in accordance with s.123(b)(2) of the Corporations Act 2001.)

Alternately, where a company has as its name the expression ‘Australian Company Number’ followed by the 9 digit number, pursuant to s.148(1) of the Corporations Act 2001, the expression ‘Australian Company Number’ or the abbreviation A.C.N. followed by the 9 digit number must be contained in the company’s common seal.

Variations (as to who may execute documents) may be permitted by the Constitution of an individual company Where this is the case, evidence must be produced to verify the right of the person or persons signing.

Where one Director or a Governing Director alone, or an authorised person in addition to a Director, either:

• attests the affixing of the corporate Seal

or

• executes a document without a common seal

the person lodging the document for registration is required to provide a true or authentic copy of the sealing clause or execution requirements in the Constitution of the corporation, to verify the right of that person to execute a document on behalf of the company. The copy will be returned and must be produced with each subsequent dealing.

To avoid producing the certified copy of a sealing clause or execution requirements each time a corporation deals with land, the Document Examination staff may, on request, record the sealing clause or execution requirements on the departmental computer. Subsequent documents lodged by the same corporation will then be accepted after a computer check by the examiner. The same rules apply where foreign companies are involved.

A “sole director and sole secretary” should always been shown as “sole director and sole secretary”. If a person is shown as “sole director/secretary” there is uncertainty if the person executing is either the sole director or sole secretary or both, so this form of title should not be used

• If a company executes without a seal, however affixes the seal in error, the addition of the seal is acceptable provided the execution (other than the affixing of the seal) is in accordance with the LTRPM
• Where a company is executing as transferors (sellers on the Transfer document) and there are witnesses to the signatures of the company seal holders, the additional signatures of the witnesses (and details) are acceptable for registration, provided the execution by the seal holders is in accordance with the LTRPM
• Where a company is executing as transferee (buyers on the Transfer document) and there are witnesses to the signatures of the company seal holders, then the witnesses must supply a letter of explanation negating any interest in the transfer. The letter should describe the transfer by land description, the parties to the transfer, must be signed, dated, witnessed and contain a statement confirming the person signing does not have any interest in the transfer document other than as a witness.

This information has been extracted from the Land Titles Registration Manual Edition 12.1 as a helpful guide only. However if you require specific information for your personal situation, please contact one of our Conveyancing Specialists.