Deed – general partnership
This page contains:
- the relevant form of execution block;
- our disclaimer; and
- notes to assist with execution.
Use of the execution block and notes is subject to the disclaimer.
Recommended form of execution block
Executed as a deed.
Signed, sealed and delivered for and on behalf of #name of partnership# by a partner of that partnership under the authority of #name of authorising deed# dated #date# who has no notice of revocation of that authority in the presence of:Signature of witness / Signature of partner
Name of witness (print) / Name of partner (print)
Disclaimer
The material contained in the G+T Execution App (which includes the execution block above and the notes below) is general information and is not intended as advice on any particular matter. It has been created to assist in-house legal counsel with some key legal and practical requirements which commonly arise in the execution of deeds and agreements. The material assumes a certain level of legal understanding. It is not intended to provide an exhaustive guide nor is it a replacement for legal advice tailored to specific circumstances.
No user should act or fail to act on the basis of any of this material. Gilbert + Tobin expressly disclaims all and any liability to any persons whatsoever in respect of anything done in reliance, whether in whole or in part, on this material.
Use of this execution block
This is an execution block for an individual partner to execute a deed on behalf of a general partnership. It should be used in conjunction with the important notes which follow below.
Should you require legal advice relating to use of this execution block or have any further questions on any issues relating to execution, please contact any of the following members of the Gilbert + Tobin Corporate Advisory team in Sydney:
- Deborah Johns, Partner - (02) 9263 4120
- Hiroshi Narushima, Partner - (02) 9263 4188
- Jessica van Rooy, Special Counsel - (02) 9263 4048
Alternatively, your regular Gilbert + Tobin contact will be happy to assist you.
Use this block for executing deeds only
This execution block should only be used for executing deeds. The document used in conjunction with this execution block should be expressed throughout to be a deed rather than an agreement. For executing agreements instead, please generate the correct execution block using the G+T Execution App.
Do not use this execution block outside Australia or where the laws of another country may apply
This execution block has been drafted for use within Australia only, and for deeds that are subject to Australian law. If the law of the deed is that of another jurisdiction and / or the deed is to be executed outside Australia, specialist advice should be sought.
Partner executing on behalf of partnership must be appointed by deed
A partner may only execute a deed on behalf of a general partnership if they have been appointed by deed to do so. The execution of deeds therefore differs from the execution of an ordinary contract by a partner on behalf of a partnership.
This is because legislation in each jurisdiction which allows a partner to bind the partnership does not displace the general law relating to the execution of deeds.
Under the general law, a partner (or any other person) may only execute a deed binding on the partnership if they have been authorised to do so by another deed. The existence of a partnership deed is not sufficient unless that deed expressly provides that an individual partner has the power to execute a deed so as to bind the partnership.
If the partnership deed does not provide for one partner to execute a deed to bind the partnership, then a power of attorney to that effect which is executed as a deed will be a sufficient authorising document. However that power of attorney must itself be validly executed as a deed by the partnership.
There are narrow exceptions where the above criteria are not satisfied by which a partnership can sign a deed. They are:
- in the absence of a deed authorising one partner to execute a deed on behalf of the partnership, all of the partners must execute the deed for it to be valid; and
- the general law also allows one partner to sign the deed if done so in the presence of all of the other partners.
This execution block is not appropriate for those situations which are outside the scope of the G+T Execution App.
Ensure the person signing the deed is authorised to do so
You should review the authorising deed to ensure that it has been validly executed and that the partner who will be executing the deed has authority under the authorising deed to do so.
Registration of powers of attorney
There is a statutory requirement in most jurisdictions that any power of attorney authorising dealings with land must be registered to give validity to those dealings. The only exceptions to this general rule are Western Australia (although a power of attorney may be deposited with the Land Information Authority) and Victoria (where no power of attorney is required to be registered although a certified copy of the power of attorney must be lodged with the Land Titles Office).
In Tasmania, all powers of attorney are required to be registered. In the ACT there are additional registration requirements for powers of attorney which are created in respect of conveyances or deeds.
The registration requirements in the various jurisdictions (including the precise circumstances in which registration is required) fall outside of the scope of the G+T Execution App. If registration of the power of attorney may be required, specialist advice should be sought. This execution clause may not be appropriate where registration is required.
As a general rule, if an instrument is executed under an invalid power of attorney or a power of attorney that post-dates the signed instrument, registering the power of attorney will not validate the instrument.
The signature must be witnessed
This execution block provides for the individual partner who is executing the deed on behalf of the partnership to have their signature witnessed. The witness must be present when the deed is executed.
The execution block has been drafted so that it complies with the laws relating to execution of deeds by an individual in all states and territories in Australia. While witnessing is not strictly necessary under the laws of Victoria, it is recommended that the requirement not be removed for Victoria as witnessing serves an evidentiary as well as a legal purpose. Witnessing is necessary in all other states and territories.
Where a person is required to witness signatures on a deed, the witness must not be a party to the deed. Ideally a witness should not be a representative, relative or employee of a party to the deed.
There are specific requirements that must be complied with for a person to act as a witness for a real property transaction. Consider obtaining specialist advice in these circumstances.
Sealing is not required
This execution block states that the document is a deed and that it is sealed. The purpose of these statements is to engage statutory provisions which deem the document to be sealed when this language is used. It is therefore not necessary to actually seal the deed when using this execution block.
Delivery
A deed will take effect from the time it is delivered rather than when it is dated or executed. “Delivery” does not mean physical delivery but rather the point at which the executing party intends to be bound.
A deed which has been executed will be presumed to be delivered. However this presumption can be rebutted where the circumstances show that the parties intend otherwise. For example, where the circumstances show that the parties executing counterpart deeds did not intend to be bound until the executed deeds were exchanged, then delivery will not have occurred.
It may often be the case that the intention of the parties will be that mutual execution is a condition precedent to the requirement of delivery being satisfied. This will commonly be the case with counterpart clauses which require an exchange of counterparts, or where it is contemplated that a single document will be executed by both parties.
A deed can also be delivered “in escrow”. Escrow is a form of conditional delivery, the condition being to delay the operation of the terms until the condition is satisfied. For example, a deed may be delivered in escrow for another party to sign.
With a delivery in escrow, the party which delivers the deed is bound by and cannot resile from the deed until the condition is fulfilled. However, if the condition is not fulfilled in the contemplated time then the party can seek equitable relief for the deed to be delivered up and cancelled.
Where there is any doubt about when delivery is to take effect (including the terms of any escrow) this should be explicitly stated, preferably in the deed itself.
Electronic signatures and electronic deeds
Never use electronic signatures to execute deeds. Electronically executed “deeds” are not legally valid in Australia because the common law requires deeds to be made on paper or parchment. There may also be difficulties meeting any requirements for witnessing. Neither of these issues have been addressed by statute, including by the state and federal Electronic Transactions Acts.
Do not pre-sign signature pages
Signature pages should never be “pre-signed” and attached to a deed. Instead the whole deed should be printed, the pages securely fastened and then the deed executed.
Stamp duty
Stamp duty may be payable on the execution of a deed. Consider seeking specialist tax advice.
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