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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Real Property Amendment (Electronic
Conveyancing) Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to facilitate the implementation of the Electronic Conveyancing National
aw (NSW), which is part of a national scheme to create a single national electronic system for
settling real property transactions and for the electronic lodgment and processing of land
transactions. To achieve that object, this Bill amends the Real Property Act 1900:
(a) by providing for the optional issue of paper certificates of title, allowing the
Registrar-General to determine whether to issue or cancel a certificate in a particular case
(replacing the current scheme, under which the Registrar-General issues a certificate of title
for all privately owned Torrens title land), and
(b) by allowing the Registrar-General, in circumstances where a certificate of title is not issued
or has been cancelled, to accept an electronic consent to the registration of a matter where
currently a certificate of title is required to be produced to the Registrar-General, and
(c) by making other minor amendments to make the operation of the Act technology-neutral,
including by making it clear that, unless otherwise provided, electronic documents lodged
through the new system will be processed in the same way and according to the same legal
considerations as conventional paper transactions and that the powers of the
Registrar-General apply equally to paper and electronic conveyancing documents.
The Bill also makes minor unrelated amendments to the caveat provisions in the Real Property
Act 1900.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
b2013-116-11.d25
Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Explanatory note
Clause 2 provides for the commencement of the proposed Act on the date of assent to the
proposed Act.
Schedule 1 Amendment of Real Property Act 1900 No 25
Amendments making the Act technology-neutral
Schedule 1 [1] and [2] modify existing definitions of terms, and insert new definitions, to make
it clear that:
(a) a reference to an approved form includes a reference to an electronic data file containing
such a form, and
(b) a reference to a dealing, including a transfer, mortgage, memorandum or other instrument,
includes a reference to the electronic form of that document created and lodged under the
authority of the Electronic Conveyancing National Law (NSW), and
(c) a reference to an instrument includes an electronic data file containing any instrument, and
(d) a reference to lodging an instrument or document includes lodging electronically, and
(e) a reference to signing includes digitally signing an electronic document.
Schedule 1 [7] provides that the powers of the Registrar-General may be exercised with respect
to electronic lodgments in conjunction with powers granted under the Electronic Conveyancing
National Law (NSW). The amendment also extends the power of the Registrar-General to correct
errors to include supplying entries or recordings omitted to be made in the Register if the error or
omission resulted from a malfunction of an Electronic Lodgment Network or of any electronic
system in which information is communicated between the Electronic Lodgment Network and the
Registrar-General.
Schedule 1 [4]-[6] require the Registrar-General to keep records of corrections of the Register.
Schedule 1 [8] empowers the Registrar-General to issue directions in relation to the preparation
and lodgment of registry instruments under the Electronic Conveyancing National Law (NSW).
Schedule 1 [10] empowers the Registrar-General to require dealings lodged electronically to be
executed and lodged in paper form, if the Registrar-General considers that the dealing cannot, or
should not, be processed electronically.
Schedule 1 [11] provides for the Registrar-General to approve a manner of verification of caveats
lodged by means of an Electronic Lodgment Network.
Schedule 1 [14] provides that the Registrar-General may approve an electronic version of any
approved form, even if there is no paper form.
Schedule 1 [15] provides that the Registrar-General may produce an evidentiary copy of an
electronic document in writing, recording information contained in an electronic instrument, and
that the document so produced may be taken as evidence of the matters contained in the electronic
instrument.
Schedule 1 [19] makes it clear that the special arrangements that the Electronic Conveyancing
National Law (NSW) specifies for the digital signing and certifying of electronic documents by
subscribers to an Electronic Lodgment Network apply instead of the provisions for certification
of paper documents in the Act. (The Electronic Conveyancing National Law (NSW) provides for
solicitors and conveyancers to be authorised to digitally sign documents on their clients' behalf
and to generally conduct a transaction electronically. The authority for this will come from a new
document called a client authorisation provided for in the Electronic Conveyancing National Law
(NSW).) Schedule 1 [16]-[18] are consequential amendments.
Amendments providing for the optional issue of certificates of title
Schedule 1 [9] provides (in proposed section 33AA) for the optional issue of paper certificates of
title, by empowering the Registrar-General to determine when a certificate of title will be issued.
The amendment also empowers the Registrar-General to cancel a certificate of title held by
persons on request. Where a certificate of title has not been issued, or has been cancelled, the
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Explanatory note
Registrar-General is required to make an entry in the Register that no certificate of title has been
issued, indicating the name of the person who has control of the right to deal in the land, being the
person who would be entitled to be issued with the certificate of title, on request.
Schedule 1 [9] also provides (in proposed section 33AB) that any statutory requirement to
produce a certificate of title may, if no current certificate is issued or if the certificate of title is
cancelled, be satisfied by the party entitled to be issued with the certificate of title (on request)
providing an approved electronic consent. The proposed section also provides that the
Registrar-General may assume that a person who lodges an electronic consent with the
Registrar-General has all necessary authority to lodge it with the Registrar-General or to withdraw
it.
Amendments relating to the operation and notice of caveats
Schedule 1 [12] will mean that the Registrar-General is required in all cases to give the registered
proprietor of an interest affected by a caveat notice of the lodgment of a caveat prohibiting the
recording of any dealing affecting the estate or interest to which the person lodging the caveat
claims to be entitled, the grant of any possessory application, the registration of a delimitation
plan, the cancellation of an easement or the extinguishment of a restrictive covenant. Currently,
the Registrar-General is not required by the Act to give notice if the registered proprietor's consent
to the caveat is endorsed on the caveat, but it is the Registrar-General's practice to give notice in
all cases as a fraud mitigation measure. The proposed amendment will align the statutory
requirement with the Registrar-General's practice.
Schedule 1 [13] provides that a judgment creditor under a writ relating to land may apply to have
a caveat (which would otherwise prevent the recording of the writ) lapsed in so far as necessary
to allow the recording of the creditor's writ on title. This makes it clear that judgment creditors,
who do not have an interest in land, are afforded the same rights as others to have a caveat lapsed
to allow the writ to be recorded and so allow the Sheriff, where appropriate, to sell the land to
satisfy debts recognised by the Court through the issue of a writ.
Other minor amendments
Schedule 1 [3] corrects a grammatical error.
Schedule 1 [20] provides for the making of savings and transitional regulations consequent on the
enactment of the proposed Act and any other Act that amends the Real Property Act 1900.
Page 3
First print
New South Wales
Real Property Amendment (Electronic
Conveyancing) Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Real Property Act 1900 No 25 3
b2013-116-11.d25
New South Wales
Real Property Amendment (Electronic
Conveyancing) Bill 2013
No , 2013
A Bill for
An Act to amend the Real Property Act 1900 to facilitate the implementation of, and supplement,
the national law relating to electronic conveyancing; to change registration procedures for caveats;
and for other purposes.
Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Real Property Amendment (Electronic Conveyancing) Act 2013. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Schedule 1 Amendment of Real Property Act 1900 No 25
Schedule 1 Amendment of Real Property Act 1900 No 25 1
[1] Section 3 Definitions 2
Omit the definitions of Approved form, Dealing and Instrument from section 3 (1) (a). 3
[2] Section 3 (1) (a) 4
Insert in alphabetical order: 5
Approved form--Form approved by the Registrar-General for the purposes of 6
any provision of this or any other Act in relation to which the expression is 7
used (see section 104), including an electronic data file containing such a 8
form. 9
Dealing--Any instrument other than a grant or caveat, including an electronic 10
form of that instrument, being an instrument: 11
(a) that is registrable or capable of being made registrable under the 12
provisions of this Act, or 13
(b) in respect of which any recording in the Register is by this or any other 14
Act or any Act of the Commonwealth required or permitted to be made. 15
Note. The Electronic Conveyancing National Law (NSW) facilitates the electronic 16
lodgment of registry instruments. Dealings are a type of registry instrument. 17
Digitally sign--Has the same meaning as in the Electronic Conveyancing 18
National Law (NSW). 19
Electronic Lodgment Network--An Electronic Lodgment Network under the 20
Electronic Conveyancing National Law (NSW). 21
Instrument--Any grant, certificate of title, conveyance, assurance, deed, 22
map, plan, will, probate, or exemplification of will, or any other document in 23
writing or in electronic form relating to the disposition, devolution or 24
acquisition of land or evidencing title to land. 25
Lodge--Includes lodge electronically in accordance with: 26
(a) this Act (see section 3A (Application of Act to electronic form plans and 27
other documents)), or 28
(b) the Electronic Conveyancing National Law (NSW). 29
Sign--Includes digitally sign in accordance with the Electronic Conveyancing 30
National Law (NSW). 31
[3] Section 3 (1) (b) 32
Omit "describing". Insert instead "description of". 33
[4] Section 12 Powers of Registrar-General 34
Insert "and" at the end of section 12 (3) (a) and (b). 35
[5] Section 12 (3) (e) 36
Insert at the end of section 12 (3) (d): 37
, and 38
(e) the Registrar-General must keep a record of every correction. 39
[6] Section 12 (3A) (d) 40
Insert at the end of section 12 (3A) (c): 41
, and 42
(d) the Registrar-General must keep a record of every correction. 43
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Schedule 1 Amendment of Real Property Act 1900 No 25
[7] Section 12 (6) and (7) 1
Insert after section 12 (5): 2
(6) The powers of the Registrar-General under this section may be exercised with 3
respect to electronic lodgments in conjunction with powers granted under the 4
Electronic Conveyancing National Law (NSW). 5
(7) A power to correct errors and omissions conferred by subsection (1) includes 6
a power to correct errors and omissions resulting from a malfunction of an 7
Electronic Lodgment Network or of any electronic system in which 8
information is communicated between the Electronic Lodgment Network and 9
the Registrar-General. 10
[8] Section 12D Registrar-General's Directions 11
Insert after section 12D (1) (b): 12
(b1) the preparation and lodgment of registry instruments under the 13
Electronic Conveyancing National Law (NSW), 14
[9] Sections 33AA and 33AB 15
Insert after section 33: 16
33AA Non-issue of certificate of title: electronic transactions 17
(1) The Registrar-General may, from time to time, determine circumstances 18
when, or classes of persons to whom, certificates of title will not be issued 19
without a request under section 33 (5). 20
(2) If the Registrar-General does not issue a certificate of title, the 21
Registrar-General must make an entry in the relevant folio of the Register, in 22
such form and manner as the Registrar-General considers appropriate, 23
indicating: 24
(a) that a certificate of title has not been issued, and 25
(b) the name of the person who has control of the right to deal in the land, 26
being the person whom the Registrar-General considers would be best 27
entitled to be issued with the certificate of title if the issue of a certificate 28
of title were requested. 29
(3) The Registrar-General may, on the request of the holder of a certificate of title, 30
cancel the certificate of title and make an entry in the Register under 31
subsection (2) (as if a certificate of title had not been issued). 32
(4) The Registrar-General may determine: 33
(a) the circumstances in which a request can be made under subsection (3), 34
and 35
(b) the requirements to be complied with by the person making the request, 36
and 37
(c) the method by which the certificate of title is to be cancelled. 38
33AB Alternative to production of a certificate of title 39
(1) A statutory requirement for the lodgment or production of a certificate of title 40
that is imposed in connection with the registration of a matter may, if the 41
relevant folio notes that no certificate of title has been issued, be satisfied by 42
the person recorded in the Register (under section 33AA) as the person having 43
control of the right to deal in the land providing electronic consent to the 44
registration of the matter. 45
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Schedule 1 Amendment of Real Property Act 1900 No 25
(2) The electronic consent must: 1
(a) be provided in a form and manner approved by the Registrar-General, 2
and 3
(b) be digitally signed by or on behalf of the person who has control of the 4
right to deal in the land. 5
(3) The Registrar-General may assume that a person having control of the right to 6
deal in the land who provides an electronic consent to the registration of a 7
matter has all necessary authority to provide it or to withdraw it. 8
(4) In this section: 9
electronic consent means a consent contained in an electronic 10
communication. 11
registration means any recording, entry or notation in the Register, or any 12
other action in connection with the Register, that the Registrar-General is 13
authorised or required to make or take by or under this or any other Act. 14
statutory requirement means a requirement made by or under this or any other 15
Act. 16
[10] Section 36 Lodgment and registration of documents 17
Insert after section 36 (11): 18
(12) If the Registrar-General refuses to register a dealing executed or lodged in 19
electronic form and the parties to the dealing wish to proceed with the 20
registration, the Registrar-General may require the relevant instruments to be 21
executed and lodged for registration in paper form. 22
[11] Section 74F Lodgment of caveats against dealings, possessory applications, plans 23
and applications for cancellation of easements or extinguishment of restrictive 24
covenants 25
Insert "or, in the case of a caveat lodged by means of an Electronic Lodgment Network, be 26
verified in a way approved by the Registrar-General" after "declaration" in 27
section 74F (5) (c). 28
[12] Section 74F (6) 29
Omit "unless the consent of the registered proprietor is endorsed on the caveat". 30
[13] Section 74I Lapse of caveat where dealing or delimitation plan is subsequently 31
lodged for recording 32
Insert ", by a judgment creditor under any writ that cannot be recorded because of the 33
caveat" after "registered proprietor" in section 74I (1). 34
[14] Section 104 Approved forms 35
Insert after section 104 (3): 36
(4) The Registrar-General may approve an electronic version of any form, 37
including any form approved under this section. 38
[15] Section 115A 39
Insert after section 115: 40
115A Certification of electronic instrument 41
(1) The Registrar-General may, on the application of any interested person and 42
payment of the prescribed fee (if any), produce in a paper form a 43
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Schedule 1 Amendment of Real Property Act 1900 No 25
representation of any electronic instrument lodged by means of an Electronic 1
Lodgment Network. 2
(2) The Registrar-General may certify the electronic representation in any manner 3
determined by the Registrar-General. 4
(3) A representation of an electronic instrument certified in accordance with this 5
section is evidence of the contents and nature of the electronic instrument. 6
[16] Section 117 Certificate of correctness: paper lodgment 7
Insert "lodged in paper form" after "caveat" where firstly occurring in section 117 (1). 8
[17] Section 117 (1A) 9
Insert "lodged in paper form that is" after "any dealing". 10
[18] Section 117 (1A) (a) 11
Insert "(other than through an Electronic Lodgment Network)" after "electronically" where 12
firstly occurring. 13
[19] Section 117A 14
Insert after section 117: 15
117A Certificate of correctness: electronic lodgment 16
(1) The Registrar-General may reject, or may refuse to accept or to take any action 17
in relation to, any primary application, dealing or caveat lodged in electronic 18
form by means of an Electronic Lodgment Network unless it is certified in 19
accordance with the participation rules made under the Electronic 20
Conveyancing National Law (NSW). 21
(2) The Registrar-General may reject, or may refuse to accept or to take any action 22
in relation to, any dealing accompanied by a notice (in accordance with 23
section 39 (1B)) that is lodged by means of an Electronic Lodgment Network 24
unless the dealing is accompanied by a certificate in electronic form to the 25
effect that: 26
(a) the notice has been lodged electronically in a form and in the manner 27
approved by the Registrar-General, and 28
(b) the notice is correct for the purposes of this Act. 29
(3) A certificate referred to in subsection (2) must be digitally signed by: 30
(a) the person lodging the dealing, or 31
(b) a party to the dealing, or 32
(c) a solicitor or agent acting for the person lodging, or a party to, the 33
dealing. 34
(4) A person must not falsely or negligently certify to the correctness of any 35
application, dealing, caveat or notice referred to in this section. 36
Maximum penalty: 10 penalty units. 37
(5) The conviction of a person under subsection (4) does not prevent a person who 38
may have sustained any damage or loss in consequence of an error or mistake 39
in any such certified application, dealing or caveat from recovering damages 40
against the person who has certified its correctness. 41
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Real Property Amendment (Electronic Conveyancing) Bill 2013 [NSW]
Schedule 1 Amendment of Real Property Act 1900 No 25
[20] Schedule 3 Savings and transitional provisions 1
Insert at the end of clause 1 (1): 2
any other Act that amends this Act 3
Page 7
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