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Last Updated
24/02/09
Statutory Declaration
Link to NSW Legislation site.
ADIS Code SD
Definition
A statutory declaration, like an oath, is a personal statement and therefore must be made by the declarant. It cannot be signed on the declarant's behalf. An attorney or solicitor must make a declaration in his or her own right, not on behalf of the donor or client, and amend the declaration accordingly, i.e. "to the best of my knowledge and belief".
Important
Affecting Old System Land
Where the statutory declaration contains a transaction:
- that is liable to stamp duty it must be marked by the Office of State Revenue;
- that changes ownership, a Notice of Sale (NOS) form is required; and
- that would normally result in a Conversion Action, a Statement of Title Particulars form is required.
A statutory declaration made in another country must be made pursuant to the statutory provisions of that country or before an Australian or British Consular Officer, see s169 Conveyancing Act 1919. Note: a statutory declaration made in an Australian Consulate must be made pursuant to the Statutory Declaration Act 1959 (Commonwealth).
A company cannot be a declarant and the statutory declaration cannot be signed under the company seal. The declaration can be made by a suitable officer of the company.
Made Within Another State
A statutory declaration made within a State other than New South Wales must be made pursuant to the appropriate local Act:
ACT Statutory Declarations Act 1959 (Commonwealth)
Northern Territory Oaths Act 1939
Queensland The Oaths Act 1867 to 1988
South Australia Oaths Act 1936
Tasmania Oaths Act 2001
Victoria Evidence Act 1958
Western Australia Oaths Affidavits and Statutory Declarations Act 2005.
Statutory Declaration Form
A statutory declaration made within New South Wales must comply with s24 Oaths Act 1900 and take the following form:
"Statutory Declaration
I, (name of declarant), do solemnly and sincerely declare that ... and I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths Act 1900.
(date and place of declaration)".
Affidavit
An affidavit is different to a statutory declaration in that it is sworn and is not made pursuant to the Oaths Act 1900.
Lodgment Requirements
Stamp Duty Not required.
Registration Copy Required. If unacceptable, "Registration Insisted Upon" is prohibited.
Index Particulars Form (completion)
(A) Lodging Party Must be completed as for a Real Property Act dealing.
(B) Instrument Statutory Declaration
(C) Locality Not required.
Link Conveyance Not required.
Principal Deed Not required.
(D) Indexing The declarant.
(E) Certification Required.
Statement Of Title Particulars Form Not required.
NOS Form Not required.
Noting Required where the statutory declaration affects part of the land, an interest/share, includes a plan, or Torrens Title land.
CA Not required.
Document Requirements
Date: must be dated with the date of execution. If not dated advise the lodging party. If a date is not furnished, indicate "Registration Insisted Upon" and include the reason.
Name: the full name (initials are acceptable) of the declarant is required. Advise the lodging party of any discrepancies in names. Note: variations in a name are indexed.
Operative clause: "... solemnly and sincerely declare pursuant to the Oaths Act 1900".
Execution: by the declarant. A power of attorney must be registered where the statutory declaration involves land or shares. Other parties mentioned in the statutory declaration do not have to sign.
Attestation: required. Must be witnessed by a prescribed functionary.
IPF: must be completed.