Execution of agreements

Individuals

Execution block
Click here to download an execution block for an agreement to be executed by an individual.

Use of this execution block
This is an execution block for an individual to execute an agreement. It should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Witnessing is for evidentiary purposes
This execution block provides for the individual who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes. It is not necessary as a matter of law.

The witness must be present when the agreement is signed. They should not be a party to the agreement. Ideally a witness should not be a representative, relative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.

Electronic signatures and electronic agreements
This execution block is not generally suitable for electronically executed agreements as the use of a witness for evidentiary purposes is not easily translatable to the electronic environment.  This is discussed in further detail in the Electronic Execution section. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should not be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Individuals as attorneys

Execution block
Click here to download an execution block for an agreement to be executed by an individual as attorney.

Use of this execution block
This is an execution block for an individual to execute an agreement as an attorney. The execution block can be used for an individual executing an agreement as attorney for either an individual or a company. It should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Ensure the person signing the agreement is authorised to do so
You should review the authorising power of attorney to ensure that it has been validly executed and that the attorney who will be signing the agreement has authority under the authorising power of attorney to do so.

Attorney signs their own name
This execution block provides for the attorney to sign their own name. An attorney can sign in their own name if either:

  • the power of attorney expressly permits them to do so; and/or
  • the power of attorney is governed by the law of a jurisdiction which has a statutory provision allowing the attorney to sign in their own name (currently NSW, NT (unless a contrary intention appears in the power of attorney), Qld, Tas, Vic and WA).

Outside these circumstances, the attorney may not be able to sign in their own name and specialist advice should be sought.

Statutory assumptions of due execution where attorney signs for company
Where a company executes an agreement by an attorney, the important presumptions of due execution under ss 128-129 of the Corporations Act 2001 (Cth) are not available in relation to the agreement itself as the execution is not in accordance with ss 127(1) or 127(2).  However, they will be available in relation to the execution of the underlying power of attorney if it has been executed under s 127 (by the signature of two directors, a director and company secretary or the sole director and company secretary of a proprietary company or otherwise by the affixing of the company’s common seal witnessed by those persons).

Sections 127-129 of the Corporations Act are discussed in further detail in the Execution of Deeds section, as well as in the balance of this Execution of Agreements section.

Registration of powers of attorney
There is a statutory requirement in most jurisdictions that any power of attorney authorising dealings with land must be registered to give validity to those dealings. The only exceptions to this general rule are Western Australia (although a power of attorney may be deposited with the Land Information Authority) and Victoria (where no power of attorney is required to be registered although a certified copy of the power of attorney must be lodged with the Land Titles Office).

In Tasmania, all powers of attorney are required to be registered. In the ACT, there are additional registration requirements for powers of attorney which are created in respect of conveyances or deeds.

The registration requirements in the various jurisdictions (including the precise circumstances in which registration is required) fall outside of the scope of this app. If registration of the power of attorney may be required, specialist advice should be sought. This execution clause may not be appropriate where registration is required.

As a general rule, if an instrument is executed under an invalid power of attorney or a power of attorney that post-dates the signed instrument, registering the power of attorney will not validate the instrument.

Witnessing is for evidentiary purposes
This execution block provides for the attorney who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

The witness must be present when the agreement is signed. They should not be a party to the agreement.  Ideally a witness should not be a representative, relative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.

Electronic signatures and electronic agreements
This execution block is not generally suitable for electronically executed agreements as the use of a witness for evidentiary purposes is not easily translatable to the electronic environment. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should not be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying explanatory notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material.  Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

General partnerships

Execution block
Click here to download an execution block for an agreement to be executed on behalf of a general partnership.

Use of this execution block
This is an execution block for an individual partner to execute an agreement on behalf of a general partnership. It should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Do not use this execution block outside Australia or where the laws of another country may apply.

This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Partner executing on behalf of partnership
Legislation in each Australian jurisdiction provides that a partner can bind the entire partnership by executing in the partnership’s name an instrument relating to the business of the partnership.

Ensure the person signing the agreement is authorised to do so
You should review the partnership agreement (if there is one) to ensure that there are no restrictions on the execution of agreements by partners on behalf of the partnership (e.g. providing that agreements over a certain monetary sum can only be signed by two or more partners).

Witnessing is for evidentiary purposes
This execution block provides for the partner who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

The witness must be present when the agreement is signed. They should not be a party to the agreement.  Ideally a witness should not be a representative, relative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.

Electronic signatures and electronic agreements
This execution block is not generally suitable for electronically executed agreements as the use of a witness for evidentiary purposes is not easily translatable to the electronic environment. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should not be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying explanatory notes are general information and are not intended as advice on any particular matter. They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Company (with common seal)

Execution block
Download here an execution block for:

  • an agreement to be executed by a company under its common seal – two signatories;
  • an agreement to be executed by a company under its common seal – one signatory.

Use of this execution block
This is an execution block for a company to execute an agreement using its common seal in the presence of either:

  • two directors or a director and a company secretary; or
  • a sole director and company secretary (in the case of a proprietary company).

The execution block should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories
This execution block provides for execution pursuant to ss 127(2)(a) and 127(2)(b) of the Corporations Act. According to those provisions, a company can execute a document as an agreement (as distinct from a deed) if the company’s seal is fixed to the agreement and the fixing of the seal is witnessed by either:

  • two directors; or
  • a director and a company secretary.

The requirements of ss 127(2)(a) and 127(2)(b) will not be satisfied if only one person witnesses the fixing of the company’s seal, even if that person is both a director and company secretary. Further, those provisions do not permit two company secretaries to witness the fixing of the company’s common seal if neither is a director – rather, at least one witness must be, or must also be, a director.

Execution under ss 127(2)(a) and 127(2)(b) is possible irrespective of what is contained in a company’s constitution.

Significantly, if it merely appears that execution has taken place in compliance with those provisions, the presumptions of regular execution in ss 128 and 129(6) of the Corporations Act will apply (unless a counterparty knows or suspects the agreement was not properly executed).  As noted in the Execution of Deeds section, these presumptions are of great value to a counterparty and in practice result in a counterparty insisting that an agreement is executed by a company under ss 127(2)(a) and 127(2)(b), or otherwise under s 127(1) by the signature of two directors, a director and company secretary or the sole director and company secretary of a proprietary company (discussed later in this Execution of Agreements section).

Execution pursuant to the Corporations Act– one signatory
This execution block provides for execution pursuant to s 127(2)(c) of the Corporations Act. That section permits a proprietary company (but not a public company) to execute a document as an agreement if the company’s seal is fixed to the document and the fixing of the seal is witnessed by the sole director and secretary of the company.  This method of execution can only be used by proprietary companies because public companies must have a minimum of three directors under s 201A(2) of the Corporations Act.

The requirements of s127(2)(c) will not be satisfied if the sole director of a proprietary company executes a deed in circumstances where the company has not appointed any company secretary (this is permitted by s 204A(1) of the Corporations Act). In that event, the only way to ensure the deed is properly executed under s 127(2)(c) is for the director to appoint himself/herself as the company’s sole secretary as well.

Again, a proprietary company can execute an agreement in accordance with s 127(2)(c) even if that is not expressly permitted by its constitution and if it appears that manner of execution has been used, the statutory presumptions of regular execution under ss 128 and 129(6) referred to above will be invoked.

Ensure the correct people witness the fixing of the seal
Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Use this execution block only for an Australian corporation
This execution block should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act. It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act.

Specialist advice should be sought in relation to the execution of agreements by foreign corporations.

Electronic signatures and electronic agreements
This execution block should not be used for electronically executed agreements. As noted in the Electronic Execution section, Gilbert + Tobin’s position is that both deeds and agreements should not be executed electronically by companies. Rather, to ensure the validity of the deed or agreement, best practice continues to be for the deed or agreement to exist in physical form and for a wet signature to be used.

Do not pre-sign signature pages
Signature pages should never be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material.  Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Company (without common seal)

Execution block
Download an execution block for:

Use of this execution block
This is an execution block for a company to execute an agreement without using a common seal by the signature of either:

  • two directors or a director and a company secretary; or
  • a sole director and company secretary (in the case of a proprietary company).

The execution block should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories
This execution block provides for execution pursuant to ss 127(1)(a) and 127(1)(b) of the Corporations Act. That section provides that a company can execute a document as an agreement without using a common seal if the document is signed by either:

  • two directors; or
  • a director and a company secretary.

As with the execution of an agreement by witnessing the fixing of a company’s common seal (see the earlier discussion in this Execution of Agreements section, execution of an agreement by way of signature under ss 127(1)(a) and 127(1)(b):

  • requires the signature of two people (not a single person who is both a director and company secretary) and is not satisfied by the signature of two company secretaries;
  • can occur notwithstanding anything contained in a company’s constitution; and
  • invokes the statutory presumptions of regular execution in ss 128 and 129(6) of the Corporations Act when it appears the requirements have been complied with (absent a counterparty’s knowledge or suspicion to the contrary).

Execution pursuant to the Corporations Act – one signatory
This execution block provides for execution pursuant to s 127(1)(c) of the Corporations Act. According to that section, a proprietary company (but not a public company) can execute a document as an agreement without using a common seal if the document is signed by the sole director and secretary of the company.    A public company cannot rely on s 127(1)(c) because it must have a minimum of three directors under s 201A(2).

As is the case in relation to execution under s 127(2)(c) by witnessing the affixation of a company’s common seal, execution by way of signature under s 127(1)(c):

  • requires a person to be specifically appointed as both a director and company secretary of a proprietary company;
  • applies notwithstanding anything contained in a company’s constitution; and
  • invokes the presumptions of regular execution in ss 128 and 129(6) of the Corporations Act, provided a counterparty does not know or suspect anything to the contrary.

‘Split executions’ should be avoided
As noted in the Execution of Deeds section of this app, a ‘split execution’ refers to two officers signing different physical copies of the same agreement.

The better view is that split executions should be avoided to ensure compliance with s 127(1) of the Corporations Act.
If a split execution is unavoidable, the parties should discuss at the earliest opportunity a position which is acceptable to all concerned. At the least, a wide counterparts clause should be included which states that signatures on behalf of a party may be on different counterparts. However, this provides no guarantee that split execution will be effective.

Ensure the correct people sign the agreement
Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are signing the agreement.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Use this execution block only for an Australian corporation
This execution block should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act. It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act.

Specialist advice should be sought in relation to the execution of agreements by foreign corporations.

Electronic signatures and electronic agreements
This execution block is not generally suitable for electronically executed agreements as the use of a witness for evidentiary purposes is not easily translatable to the electronic environment.  This is discussed in further detail in the Electronic Execution section of this app. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances.  Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should never be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying explanatory notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Company by authorised signatory

Execution block
Click here to download an execution block for an agreement to be executed by a company without using a common seal by the signature of its authorised signatory.

Use of this execution block
This is an execution block for a company to execute an agreement without using a common seal by the signature of its authorised signatory. The execution block should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Execution pursuant to the Corporations Act 2001 (Cth)
This execution block provides for execution pursuant to s 126 of the Corporations Act. That section provides that a company can execute a document as an agreement without using a common seal if the power to do so is exercised by an individual acting with the company’s express or implied authority and on behalf of the company.

While, as discussed in the Execution of Deeds section, it was held in Torrens Redevelopment & Research Pty Ltd v Oakworth Developments Pty Ltd [2008] NSWSC 1096 that a board resolution alone is not sufficient to confer authority on an agent to execute a deed on behalf of a company, a resolution of the board is capable of conferring express authority on a person to execute an agreement on behalf of the company for the purpose of s 126.  Any agreement so executed by the agent would then be valid.

However, in this situation, the counterparty to the agreement will generally require proof that the board resolution has been passed because the statutory presumptions as to proper execution of an agreement by a person with authority (contained in s 129 of the Corporations Act) do not apply in relation to execution under s 126.  In practice, a counterparty may also simply insist that execution takes place under s 127 rather than s 126.

This app does not deal with the situation where the authorised signatory’s power is or may be implied. Specialist advice should be sought in that instance.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Use this execution block only for an Australian corporation
This execution block should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act. It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act.

Specialist advice should be sought in relation to the execution of agreements by foreign corporations.

Witnessing is for evidentiary purposes
This execution block provides for the authorised signatory who is executing the agreement to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

The witness must be present when the agreement is signed. They should not be a party to the agreement.  Ideally a witness should not be a representative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.

Electronic signatures and electronic agreements
This execution block is not generally suitable for electronically executed agreements as the use of a witness for evidentiary purposes is not easily translatable to the electronic environment. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should not be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material.  Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Trusts – individual as trustee

Execution block
Click here to download an execution block for an agreement to be executed by an individual as trustee.

Use of this execution block
This is an execution block for an individual to execute an agreement as a trustee. It should be used in conjunction with the important notes which follow below.

Execution by trustees
Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts.  Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that they have power to execute the document.

If the trustee is not being required to give warranties about their authority then consider amending the execution block by adding the words ‘and in accordance with the trust deed dated [#]’ after inserting the name of the trust.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Witnessing is for evidentiary purposes
This execution block provides for the individual who is executing the agreement as trustee to have their signature witnessed. This requirement has been included for evidentiary purposes.  It is not necessary as a matter of law.

The witness must be present when the agreement is signed. They should not be a party to the agreement. They should also not be a beneficiary of the trust.  Ideally a witness should not be a representative, relative or employee of a party to the agreement.

There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.

Electronic signatures and electronic agreements
This execution block should not be used for electronically executed agreements. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should not be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material.  Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Trusts – company as trustee (with common seal)

Execution block
Download here an execution block for a company to execute an agreement as a trustee using its common seal in the presence of either:

  • two directors or a director and a company secretary; or
  • a sole director who is also the company secretary (in the case of a proprietary company).

Use of this execution block
This is an execution block for a company to execute an agreement as a trustee using its common seal in the presence of either:

  • two directors or a director and a company secretary; or
  • a sole director, who is also the company secretary (in the case of a proprietary company).

The execution block should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Execution by trustees
Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts.  Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories or one signatory
The same considerations apply here as those raised earlier in the Execution of Agreements section of this app in relation to execution by a company in its own (non-trustee) capacity by fixing its common seal, witnessed by two signatories or the sole director and secretary of a proprietary company.  Reference should be made to that commentary if you are seeking to rely on s 127(2) of the Corporations Act to allow an agreement to be executed by a company in its trustee capacity by fixing its common seal.

Ensure the correct people witness the fixing of the seal
Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are witnessing the fixing of the seal.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Use this execution block only for an Australian corporation
This execution block should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act. It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act.

Specialist advice should be sought in relation to the execution of agreements by foreign corporations.

Electronic signatures and electronic agreements
This execution block should not be used for electronically executed agreements. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances. Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should never be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material.  Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.

Trusts – company as trustee (without common seal)

Execution block
Download here an execution block for a company to execute an agreement as a trustee without using its common seal by the signature of:

  • two directors or a director and a company secretary; or
  • a sole director and company secretary (in the case of a proprietary company).

Use of this execution block
This is an execution block for a company to execute an agreement as a trustee without using its common seal in the presence of either:

  • two directors or a director and a company secretary; or
  • a sole director company secretary (in the case of a proprietary company).

The execution block should be used in conjunction with the important notes which follow below.

Use this block for executing agreements only
This execution block should only be used for executing agreements. The document used in conjunction with this execution block should be expressed throughout to be an agreement rather than a deed. For executing deeds instead, please refer to the Execution of Deeds section of this app.

Execution by trustees
Consider obtaining a certified up-to-date copy of the trust deed. There is no ‘indoor management rule’ which external persons can rely on when dealing with trusts.  Anyone dealing with a purported trustee will need to ensure that the trust is properly constituted, the trustee has been properly appointed and that it has power to execute the document.

If the trustee is not being required to give warranties about its authority then consider amending the execution block by adding the words ‘and in accordance with the trust deed dated [#]’ after the reference to the Corporations Act.

Execution pursuant to the Corporations Act 2001 (Cth) – two signatories or one signatory
The same considerations apply here as those raised earlier in the Execution of Agreements section in the context of execution by a company in its own (non-trustee) capacity by the signature of two directors, a director and company secretary or the sole director and secretary of a proprietary company.  Reference should be made to that commentary if you are seeking to rely on s 127(1) of the Corporations Act to allow execution of an agreement by a company in its trustee capacity by the signature of those persons.

‘Split executions’ should be avoided
As noted in the case of execution by a company in its own (non-trustee) capacity, it is desirable to avoid ‘split executions’ involving two officers signing different physical copies of the same agreement to ensure compliance with s 127(1) of the Corporations Act

If split execution is the only available option, the parties should discuss at the earliest opportunity a position which is acceptable to all concerned. At the least, a wide counterparts clause should be included which states that signatures on behalf of a party may be on different counterparts. However, this provides no guarantee that split execution will be effective.

Ensure the correct people sign the agreement
Consider whether it is necessary or appropriate to undertake an ASIC search to establish the capacity of the people who are signing the agreement.

Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for agreements that are subject to Australian law. If the law of the agreement is that of another jurisdiction and/or the agreement is to be executed outside Australia, specialist advice should be sought.

Use this execution block only for an Australian corporation
This execution block should only be used for Australian corporations which are registered under Chapter 2A of the Corporations Act. It should not be used for a foreign corporation (including a foreign corporation registered under Division 2 of Part 5B.2 of the Corporations Act.

Specialist advice should be sought in relation to the execution of agreements by foreign corporations.

Electronic signatures and electronic agreements
This execution block should not be used for electronically executed agreements. However, eSignatures are (temporarily) permitted during the COVID-19 pandemic under some circumstances.  Please refer to Can I use an eSignature to sign documents during COVID-19?

Do not pre-sign signature pages
Signature pages should never be ‘pre-signed’ and attached to an agreement. Instead the whole agreement should be printed, the pages securely fastened and then the agreement executed.

Disclaimer
This execution block and accompanying notes are general information and are not intended as advice on any particular matter.  They have been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.

No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.