The following applies to Real Property Act dealings, Water Access Licence dealings and the General Register.
NSW LRS has certain requirements as regards execution of a dealings and documents involving a company that must be met before the dealing or document can be registered.
Sections 129(5) and (6) Corporations Act 2001 (Commonwealth) states that if the requirements in s127 Corporations Act 2001 are met an interested person may assume that the dealing or document has been properly executed by the company.
In order to satisfy NSW LRS requirements, a dealing or document involving a company may be executed by:
- attesting the affixing of the company seal by the officers prescribed in s127(2) Corporations Act 2001
- signing the dealing or document without the company seal by the officers prescribed in s127(1) Corporations Act 2001
- by persons (including a director or company secretary, an alternate or substitute director or other persons), together with a reference to an authority filed in NSW LRS or a statement of authority by the board of directors on the dealing or document, e.g. 'pursuant to the Articles of Association'. See s36(3) Real Property Act 1900. Note The assumptions in s129(5) or (6) Corporations Act 2001 do not apply.
See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 [12.10] – [12.30].
If doubt exists regarding the authority to execute, the document must be referred to Legal through the Senior Examining Officer.
Execution by a deregistered company
A dealing or document involving a deregistered company, e.g. a discharge of mortgage where the mortgagee company has been wound up, must be executed on the company's behalf by the Australian Securities and Investment Commission (ASIC) and the execution must be expressed to be 'pursuant to s601AF Corporations Act 2001' (Commonwealth). See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [85.100].
If ASIC executes under a section other than 601AF then the dealing should be referred to Legal.
Execution by a foreign company
A dealing or document involving a foreign company must be executed in a manner similar to that for a company registered in Australia. Note A foreign company registered in Australia must state their ARBN. The ARBN does not have to be shown in the seal.
Also see foreign companies general information.