Who can sign a plan or instrument?

Persons

A plan or instrument must be executed by the registered proprietor(s) in person, or by one of the following substitutes:

  • an agent under power (attorney, receiver, delegate, administrator, liquidator)
  • a statutory agent (eg a Sheriff)
  • a judicial agent (appointed by a court) or
  • a person directed to sign a registered proprietor's signature see s.38(lA)(a) Conveyancing Act 1919.

Any agent executing a document must state the source of their authority.

Corporations (excluding local councils)

The Company Law Review Act 1998 (Commonwealth legislation) enables a company to:

Execute documents under seal

A company with a common seal may execute a document if the seal is fixed to the document and the fixing is witnessed by:

  • 2 directors of the company, or
  • a director and a company secretary of the company, or
  • for a proprietary company with sole director who is also sole company secretary,  that director.

See s.127(2) Corporations Act 2001 (Commonwealth legislation)

The seal affixed to a s.88B instrument should be witnessed as in example 2.

Choose not to have a company seal

A company without a company seal may execute documents by personal signature. A company may execute a document without using a common seal if the document is signed by:

  • 2 directors of the company, or
  • a director and a company secretary of the company, or
  • for a proprietary company with sole director who is also the sole company secretary, that director.

See s.127(1) Corporations Act 2001(Commonwealth legislation)

The signatures on a Section 88B instrument should be set out as in example 4.

Further

  • An execution attested to by the Clerk, Secretary or other authorised officer, or a member of the Board of Directors, council or other governing body, is deemed to be in accordance with s.51A(1) Conveyancing Act 1919,
  • a corporation may authorise one or more officers, or other agent, to execute a plan or instrument on its behalf. The execution by this officer or agent must include a statement as to the source of their authority,and
  • documents executed in New South Wales under the Oaths Act 1900, must be executed by person(s) authorised by the corporation and not under seal. The execution by this person must include a statement as to the source of their authority.

Marksperson

A marksperson is someone who is unable to write, through illiteracy or otherwise, but is able to make a 'mark', usually an 'X'. A marksperson will execute a plan by affixing their mark. This form of execution requires a specific form of attestation see example 3.

Solicitor or Licensed Conveyancer

A plan or instrument can be executed by the solicitor or licenced conveyancer on behalf of a client who benefits from the terms of the document, eg where they act for the transferee(s) of land or the owner of the dominant tenement of an easement set out in the section 88B instrument.

They cannot execute a plan or instrument on behalf of a registered proprietor, transferor, mortgagee, or lessee or on behalf of the owner of the servient tenement of the easement. Also they must not execute a plan or instrument on behalf of a dominant tenement of an easement, in a variation or release of that easement.

In signing a document for the party they act for, the solicitor or licensed conveyancer:

  • must use their usual signature, and
  • must include a statement declaring who they act for, their authority to sign and their full name (printed), and
  • need not have their signature witnessed

Local Councils

Where the council is the dominant tenement of a proposed easement or restriction set out in a section 88B instrument it may be executed by an authorised officer, or by the solicitor or licensed conveyancer acting for the Council.

Where the council is the registered proprietor of the land comprised in the plan either:

  • the council may execute the plan and instrument under the common seal of the council or
  • the plan will be signed either by the General Manager or an authorised delegate specified in a registered power of attorney

see s.377(1)(h) Local Government Act 1993.