By Dr Simon Blount and Claire Martin -
Snapshot
- The legality of the electronically created and registered interest is the product of the law’s indifference to contractual form and the express legislative intent of the Electronic Conveyancing National Law.
- The question of authority to sign is likely to arise in contested transactions.
- Digital signatures are only as reliable as the persons entrusted with them.
E-conveyancing is simply online conveyancing in which contracts are created and exchanged, documents lodged for registration, funds transferred, and interests registered, entirely electronically. The legality of the electronically created and registered interests is the product of the law’s indifference to contractual and documentary form and the express legislative intent of the Electronic Conveyancing National Law (‘ECNL’).
Principles
The United Nations Model Law on Electronic Commerce (‘MLEC’) creates functional and legal equivalence between electronic and paper media by defining concepts such as ‘writing’, ‘signature’ and ‘original’ in ways that include electronic records and signatures.
The key provision is contained in §5 – that an electronic information will not be invalid solely on account of it being wholly or partly in electronic form. Further provisions are that an electronic information will be in writing if it is accessible so as to be useable for subsequent reference; a signature will not be invalid so long as it is appropriate to the purpose for which the electronic information was generated and a method is used to identify the signatory; and a contract shall not be invalid solely on account of it being wholly or partly in electronic form.
Legislation based on the MLEC has been enacted in every jurisdiction in Australia. Section 8 of the Electronic Transactions Act 1999 (Cth) reproduces §5 of the MLEC. Section 9 provides a narrower enabling of electronic communications than the MLEC because it refers only to information required by government. Section 10 carries the added burden of an objective test of ‘reliability’ of method to identify the signatory (Get Up Ltd v Electoral Commissioner (2010) 189 FCR 165; see also Russells v McCardel [2014] VSC 287).
Arguably, the common law does not require the assistance of legislation to recognise the validity of electronic writing and signatures for dealings in real property. Since the nineteenth century, common law courts have held that telegrams were capable of forming valid contracts for transacting interests in land (Godwin v Francis (1870) LR 5 CP 295). Since then, courts in the United States, Canada, Australia, New Zealand and Singapore have held mailgrams (Hessenthaler v Farzin (1989) 564 A.2d 990), faxes (Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (NSWSC, Young J, No 3551 of 1989, 15 August 1989, unreported)) and emails (Shattuck v Klotzbach (2001) 14 Mass L Rep 360; Rosenfeld v Zerneck (2004) 776 NYS 2d 458; Girouard v Drouet [2012] N.B.J. No 136; Cox v Coughlan [2014] NZHC 164; Joseph Matthew anor v Singh Chiranjeev anor [2009] SGCA 51) capable of forming valid contracts for dealings in interests in land.
Where the courts have not upheld the validity of such contracts it is because the substance, rather than the form, has been deficient (Harvey v Facey [1893] AC 552; Singer v Adamson 2003 WL 23641985 affd (2005) 837 NE 2d 313).
