The best interest Duty: What it means for Australian Mortgage Brokers

On May 6, 2020 the Australian Federal Government introduced the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Determination) to enable the public health requirements for social distancing during the COVID-19 pandemic. Under the Determination, company officers such as directors of companies, company secretaries and other persons that are authorised to execute documents on behalf of companies can now sign relevant documents electronically where physicals signatures were necessary. These changes, at present, will lapse on 5 November 2020, however many in the banking and finance industry are advocating for these amendments to be made permanent.

Key Changes

Under the Determination, a company may execute a document without a common seal if each person required to sign the document on behalf of the company uses electronic communication which reliably identifies the person and indicates the person’s intention about the contents of the document.

In practice, there are a wide variety of means by which officers of a company might sign a document electronically. These include:

  • pasting a copy of a signature into a document;
  • signing a PDF on a tablet, smartphone or laptop using a stylus or finger; or
  • cloud-based signature platforms like DocuSign.

The electronic communication must include the entire contents of the document but does not need to include the signature of another person signing the document electronically.

If the above requirements are satisfied, then an electronic signature applied under section 127 will be valid and the document deemed duly executed.


Adopting an electronic regime has many advantages.

Firstly, the signer can be identified more readily through various security measures such as the two-factor authentication code being sent to the signer’s mobile phone or a personal e-mail code.

Secondly, the IP address assigned to the signer’s device would also assist to identify the person who executed the document based on the geographical location of the signer.

States and Territories

Victoria, New South Wales and Western Australia currently mandate the use of e-conveyancing to varying degrees. In recent weeks and days, South Australia has mandated the use of common instruments to be lodged via e-conveyancing as of 3 August 2020 and the Australian Capital Territory has passed legislation (the Electronic Conveyancing National Law (ACT) Act 2020) enabling the use of e-conveyancing.


Purcell Partners has developed innovative solutions for its clients in light of these amendments. End-to-end electronic documentation and collaboration with electronic document platforms, like DocuSign, has enabled the facilitation of digital execution of loan and mortgage documents.

Please contact our legal team to further discuss how we can facilitate a timely and smooth transition from loan documents being received by a borrower, through signing and immediate return and settlement time and time again.