On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Execution under common seal

The following applies to Real Property Act dealings, Water Access Licence dealings and the General Register.

On 23 February 2022, amendments were made to the Corporations Act 2001 (Cth) relating to execution requirements for companies. These include permitting the execution and witnessing of documents and deeds by electronic means. For further information, please refer to Division 1 of Part 1.2AA and sections 126 to 129 of the Corporations Act 2001.

The corporate collective investment vehicle (CCIV) regime commenced on 1 July 2022. For more information, refer to Chapter 8B of the Corporations Act 2001.

A company may execute a dealing or other instrument by the fixing of its common seal witnessed by:

  • 2 directors of the company; or
  • a director and a company secretary of the company; or
  • for a proprietary company that has a sole director - that director, if:
    • the director is also the sole company secretary; or
    • the company does not have a company secretary (and the execution is on or after 23 February 2022).

             See section 127(2) Corporations Act 2001.

NOTE: A CCIV must execute documents through its corporate director. A CCIV may execute a dealing or other instrument by the fixing of its common seal in accordance with section 127(2) Corporations Act 2001 witnessed by 2 directors of the corporate director of the CCIV; or a director and a company secretary of the corporate director of the CCIV. For more information, see section 1223(2) Corporations Act 2001.

The capacity of the authorised officers must be stated. Where the company has a sole director who is also the company secretary, both capacities must be stated. See section 127(2) Corporations Act 2001. The assumption of proper execution as set out in section 129(6) Corporations Act 2001 applies.

NOTE: Other forms of execution may exist (see section 127(4) of the Corporations Act 2001).  A company’s Constitution, Articles of Association, or the replaceable rules (as applicable) may set out the manner in which the company can execute a dealing or other instrument. The relevant dealing or instrument should state the authority on which the company relies. In this instance, the assumption of proper execution as set out in section 129(6) Corporations Act 2001 does not apply.

The common seal must be fixed legibly in dense black or dark blue ink or be impressed. Where the common seal is embossed it must be shaded by pencil and be acceptable for microfilming purposes. The authorised officers must sign adjacent to the common seal, not through it as this may obscure the text within the common seal.  Adhesive common seals are acceptable but they must not obscure information on the form. The common seal:

  • must show the same ACN as that quoted in the text of the dealing or document. The ABN for the company may be shown in the common seal providing the dealing or document was executed on or after 1 July 2003

  • does not have to show the ARBN quoted in the text of a dealing or document or

  • may not show an ACN or ARBN number.  Further evidence is required to show the company does not have an ACN or ARBN, e.g. a foreign company not registered in Australia.

Staff processing information

If doubt exists regarding the authority to execute the document must be referred to Legal through the Senior Dealing Examiner.

Publish date: October 2023