The Australian construction and property industry is experiencing unprecedented uncertainty in respect of COVID-19. Practical challenges arise in relation to executing, lodging and serving documents by traditional means.
The Australian states and territories have dealt with electronic signature and electronic lodgement differently. A summary of the electronic signing of documents and electronic lodgement which is permitted is contained in the table below.
Electronic Signing Permitted
|Agreement / Contract (other than a Deed), including Agreement for Lease executed as an agreement||Lease||Deed, including Agreement for Lease executed as a deed, and Ancillary Deeds||Guarantee, typically executed as a deed||Disclosure Statements and Advice Reports|
|QLD||Yes||No, due to Queensland Land Registry Requirements||No, but may be enforceable as a contract in certain circumstances||No, but may be enforceable as a contract in certain circumstances||Yes|
|VIC||Yes||Yes, or if not will be enforceable as a contract in certain circumstances||Yes||Yes||Yes|
|WA||Yes||No, but may be enforceable as a contract in certain circumstances||No, but may be enforceable as a contract in certain circumstances||Yes||Yes|
Importantly, a company can sign documents using any method approved by the company. Consequently, there is no general barrier to a company using an electronic signature to sign a document.
Agreement / Contract (not in the form of a Deed)
In all of the Australian jurisdictions identified above, an electronic signature is capable of satisfying the requirement for a contract to be signed. This requirement is only met if the presumptions of the Electronic Transactions Act are satisfied:
A typed name, an email signature footer, a facsimile of a signature and a technology based signature (for example, using DocuSign) will all identify the signatory.
Consent to the use of an electronic signature may be expressly given prior to the contract being entered into, implied from the conduct of the parties or included as a term of the contract.
There is no formal requirement for a signature to be witnessed. Removing the witnessing provisions from a contract may therefore make electronic signing simpler.
The formal requirements for a deed are that it must be:
The position in the eastern seaboard states and Western Australia is as follows:
In Queensland, a guarantee is only enforceable if in writing and signed by the guarantor. There is no such requirement in New South Wales, Victoria or Western Australia, although having a guarantee in writing and signed is preferable to ensure it is enforceable.
The Australian federal and state governments are yet to introduce amendments or new legislation in any of the states and territories which would affect the current provisions or means of service under SOPA. Traditional means of serving a payment claim, payment schedule or adjudication application on another party under the SOPA equivalents include:
|Delivering to person personally||Lodging during normal office hours at the ordinary place of business||Sending via post to the ordinary place of business||Emailing and/or facsimile to an address specified for service||A manner provided under the construction contract||A manner authorised by the regulations|
|NSW||Yes||Yes||Yes||Yes - email||Yes||Yes|
|VIC||Yes||Yes||Yes||Yes - facsimile||Yes||Yes|
|SA||Yes||Yes||Yes||Yes - facsimile||Yes||Yes|
New South Wales is the only jurisdiction to identify email as a means of service under the SOPA. Service by email may nevertheless be effective in the other states if it is provided under the relevant contract.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
Michael Bampton, Partner