Proper execution of Deeds under Western Australian law (hint: it’s why “WA” also stands for “Wait Awhile”…)

Section 9 of Western Australia’s very antiquated Property Law Act 1969 (the “Act”), among other things, deals with formalities of executing any deeds in Western Australia (e.g. a Confidentiality Deed, Deed of Assignment of Lease, Deed of Variation of Trust etc).

Generally, but not always, a deed may similar but different to a contractual document in that it can be legally binding between the relevant parties, but without any valuable ‘consideration’ (which, amongst other constituting elements, an ‘agreement’ needs in order to be legally enforceable).

The Act doesn’t contemplate deeds being able to be (conveniently) executed electronically (e.g., via DocuSign) and this is underlined by Regulation 4 of the Electronic Transactions Regulations 2012 (WA), which provides that if document requires verification or authentication, or needs to be attested or witnessed, then it cannot be executed electronically, and must be executed in person, in the presence of the witness or authorised person.

In the case of a ‘deed’, the law requires that it must be executed (signed) by the person or persons to be bound by it and their signature must be made in person (i.e., by “wet ink” signature) and:

• for an individual signatory, their signature must be contemporaneously witnessed by an independent (that is, the witness cannot be a party to the deed) adult (18 or over) person, who should also attest to such by also “wet ink” signing the deed and including their personal and contact details (in case any evidentiary questions arise about their authenticity).  The same witness can witness multiple signatures providing they contemporaneously witnessed each signatory’s signature; and

• for a company executing a deed, the signatories (directors/secretary if executing under Section 127 of the Corporations Act 2001, or a company’s agent/authorised signatory if executing under Section 126 of the Corporations Act 2001) must also execute the deed by “wet ink” signature but, unlike individuals, their signatures do not need to be witnessed.

It goes without saying that the date the last person executes a deed will be the date of that deed, and care should be taken to both choose the correct date, and then importantly to include that date on the document.

This whole antiquated legacy aspect to do with deeds continues to be a problem throughout some parts of Australia, to such an extent that even the Australian Government Solicitor’s office has had to publish the attached ’guidance’ in relation to such as different rules apply in different states/territories.