Corporations Act 2001

CHAPTER 2B - BASIC FEATURES OF A COMPANY  

PART 2B.1 - COMPANY POWERS AND HOW THEY ARE EXERCISED  

SECTION 127   EXECUTION OF DOCUMENTS (INCLUDING DEEDS) BY THE COMPANY ITSELF   Executing a document without a common seal

127(1)  
A company may execute a document without using a common seal if the document is signed by:

(a)  2 directors of the company; or

(b)  a director and a company secretary of the company; or

(c)  for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

Executing a document with a common seal

127(2)  
A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:

(a)  2 directors of the company; or

(b)  a director and a company secretary of the company; or

(c)  for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the company.

127(2A)  

For the purposes of subsection (2) , the fixing of a common seal to a document is taken to have been witnessed by a person mentioned in paragraph (a) , (b) or (c) of that subsection if:

(a)  the person observes the fixing of the seal by electronic means; and

(b)  the person signs the document; and

(c)  the document includes a statement that the person observed the fixing of the seal by electronic means.

Note: Subsections (3A) to (3C) set out circumstances in which a person is taken to sign a document by signing a copy or counterpart of the document.

Executing a document as a deed

127(3)  
A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2) .

Note: The circumstances in which a deed is taken to have been executed by affixing the common seal of a company in accordance with subsection (2) is affected by subsection (2A) . Subsection (2A) allows for a witness to observe the affixing of the common seal by electronic means. However, the witness must sign the deed. The circumstances in which a person is taken to sign a document, such as a deed, by signing a copy or counterpart of the document are set out in subsections (3A) to (3C) .

Signing a physical copy or counterpart

127(3A)  

For the purposes of this section, a document is taken to have been signed by a person if:

(a)  the person signs a copy or counterpart of the document that is in a physical form; and

(b)  the copy or counterpart includes the entire contents of the document.

Signing an electronic copy or counterpart

127(3B)  

For the purposes of this section, a document is taken to have been signed by a person if:

(a)  a method is used to identify the person and to indicate the person ' s intention to sign a copy or counterpart of the document; and

(b)  the copy or counterpart includes the entire contents of the document; and

(c)  the method used was either:

(i) as reliable as appropriate for the purpose for which the document was generated or communicated, in light of all the circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in paragraph (a) , by itself or together with further evidence.

Copy or counterpart need not include other signatures

127(3C)  

For the purposes of paragraphs (3A)(b) and (3B)(b) , a copy or counterpart of a document need not include:

(a)  the signature of another person signing the document; or

(b)  any material included in the document to identify another person signing the document or to indicate another person ' s intention in respect of the contents of the document; or

(c)  if a common seal is fixed to the document - the seal.

Other ways of executing documents not limited

127(4)  
This section does not limit the ways in which a company may execute a document (including a deed).