In the wake of the current COVID-19 climate of social distancing requirements and increased cybersecurity risks as raised in our previous article, we provide an update on what type of document can and cannot be electronically signed.
However, it must be kept in mind that the Act is permissive rather than prescriptive – and generally will not invalidate documents that do not conform. Further, certain types of documents are listed as an express exception pursuant to Regulation 5 of the Electronic Transactions Regulation 2017 (NSW) (the Regulation).
At common law, the Courts have seemingly taken a broad approach as to whether a document has been validly signed by electronic means and have upheld, for example; that (1) a printed or typed name (Parkesinclair Chemicals (Aust) Pty Ltd v Asia Associates Inc  VSC 362) and (2) a mark, stamp or seal with the authority of the person signing (Bendigo and Adelaide Bank v Laszczuk  VSC 388) were valid signatures.
Recent McCabe Curwood articles on the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020:
Given the expected increase in fraud during this period, we would particularly advise exercising a cautious approach when utilising electronic communications and e-signatures and to seek legal advice on transactions which may expose significant risk in the event that the relevant document is not executed correctly.
McCabe Curwood's Litigation and Dispute Resolution team and Corporate team have extensive experience in advising individuals and businesses on their commercial and corporate needs, including representing and assisting clients in contractual disputes. Please get in touch with us today if you require any assistance with the matters covered in this article.