The Federal Government has just passed a new Act allowing sole directors to execute documents on behalf of their companies in the absence of a company secretary.
The Corporations Amendment (Meetings and Documents) Act 2022 (Cth) (the Act) widens the scope of section 127 of the Corporations Act 2001 (Cth) (Corporations Act) to eliminate the need for sole directors to appoint themselves as sole company secretary to validly execute documents.
Key takeaways for single director proprietary companies are as follows:
Clarification of Section 127
Under the Act, a document can now be duly executed by a company without using a common seal if it has been signed by either:
2 directors of the company;
a director and a company secretary of the company; or
for a proprietary company that has a sole director – that director, if:
o the director is also the sole company secretary; or
o the company does not have a company secretary.
These requirements are carried on to the witnessing of documents by a company.
Making Assumptions via Section 129
The Act amends the statutory assumptions in section 129 of the Corporations Act as follows:
a person may assume that a document has been duly executed by the company if it appears to have been signed in accordance with section 127(1) (refer to above);
a person may assume that if a person states beside their signature that they are the director, company secretary, sole director or sole director and sole company secretary, this is the case; and
a person may assume that a document has been duly executed if:
o the company’s seal is fixed to the document (refer to subsection 127(2)); and
o the fixing of the seal has been witnessed (refer to subsections 127(2) and 127(2A)).
Executing a Deed
The Act also stipulates that sole directors of a company can now execute a document as a deed if it has been expressed to be executed as a deed, and has been executed in accordance with subsections 127(1) or 127(2) of the Corporations Act.
If you have any questions about the Act or its impact on you or your company, Henry William Lawyers can assist. Feel free to contact our people:
Ron Zucker 0410 590 111
Chelsea Woodward 0404 065 899