sec.12Reliance on, and repudiation of, digital signatures

sec.12 Reliance on, and repudiation of, digital signatures

In this section— financial institution means— an authorised deposit-taking institution as defined in the Banking Act 1959 of the Commonwealth, section 5 (1) , or a bank constituted by a law of this jurisdiction or of another State or the Commonwealth. If a subscriber’s digital signature is created for a registry instrument or other document in connection with a conveyancing transaction, then: unless that subscriber repudiates that digital signature, that registry instrument or other document is to be taken to be signed by that subscriber, and unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, on: that subscriber, and all other persons (if any) for whom that subscriber acts under a client authorisation with respect to that conveyancing transaction, and unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, for the benefit of: each of the parties to that conveyancing transaction, and each subscriber who acts under a client authorisation with respect to that conveyancing transaction, and each ELNO whose ELN is used in connection with that conveyancing transaction, and any person claiming through or under any person to whom subparagraph (i) applies, and the Registrar, once that registry instrument or other document is lodged electronically in accordance with section 7 , and in the case of a document that contains a direction for the payment of money as part of that conveyancing transaction, each financial institution that pays or receives money in accordance with that direction, and that subscriber cannot repudiate that digital signature except in the circumstances set out in subsection (4) . Subsection (1) applies regardless of: who created the subscriber’s digital signature, and the circumstances (including fraud) in which the subscriber’s digital signature was created. Subsection (1) does not prevent the unsigning of a registry instrument or other document. Despite subsections (1) and (2) , a subscriber can repudiate the subscriber’s digital signature with respect to a registry instrument or other document if the subscriber establishes: that the digital signature was not created by the subscriber, and that the digital signature was not created by a person who, at the time the subscriber’s digital signature was created for the registry instrument or other document: was an employee, agent, contractor or officer (however described) of the subscriber, and had the subscriber’s express or implied authority to create the subscriber’s digital signature for any document or documents, and that neither of the following enabled the subscriber’s digital signature to be created for the registry instrument or other document: a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to fully comply with the requirements of the participation rules, a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to take reasonable care. For the purposes of subsection (4) (b) (ii), it does not matter whether the authority was: general, or limited or restricted to documents of a particular class or to a particular document or in any other way. s 12 amd 2022 No. 18 (NSW) sch 1 ss 3 – 5 (sec.12-ssec.1A) In this section— financial institution means— an authorised deposit-taking institution as defined in the Banking Act 1959 of the Commonwealth, section 5 (1) , or a bank constituted by a law of this jurisdiction or of another State or the Commonwealth. (sec.12-ssec.1) If a subscriber’s digital signature is created for a registry instrument or other document in connection with a conveyancing transaction, then: unless that subscriber repudiates that digital signature, that registry instrument or other document is to be taken to be signed by that subscriber, and unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, on: that subscriber, and all other persons (if any) for whom that subscriber acts under a client authorisation with respect to that conveyancing transaction, and unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, for the benefit of: each of the parties to that conveyancing transaction, and each subscriber who acts under a client authorisation with respect to that conveyancing transaction, and each ELNO whose ELN is used in connection with that conveyancing transaction, and any person claiming through or under any person to whom subparagraph (i) applies, and the Registrar, once that registry instrument or other document is lodged electronically in accordance with section 7 , and in the case of a document that contains a direction for the payment of money as part of that conveyancing transaction, each financial institution that pays or receives money in accordance with that direction, and that subscriber cannot repudiate that digital signature except in the circumstances set out in subsection (4) . (sec.12-ssec.2) Subsection (1) applies regardless of: who created the subscriber’s digital signature, and the circumstances (including fraud) in which the subscriber’s digital signature was created. (sec.12-ssec.3) Subsection (1) does not prevent the unsigning of a registry instrument or other document. (sec.12-ssec.4) Despite subsections (1) and (2) , a subscriber can repudiate the subscriber’s digital signature with respect to a registry instrument or other document if the subscriber establishes: that the digital signature was not created by the subscriber, and that the digital signature was not created by a person who, at the time the subscriber’s digital signature was created for the registry instrument or other document: was an employee, agent, contractor or officer (however described) of the subscriber, and had the subscriber’s express or implied authority to create the subscriber’s digital signature for any document or documents, and that neither of the following enabled the subscriber’s digital signature to be created for the registry instrument or other document: a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to fully comply with the requirements of the participation rules, a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to take reasonable care. (sec.12-ssec.5) For the purposes of subsection (4) (b) (ii), it does not matter whether the authority was: general, or limited or restricted to documents of a particular class or to a particular document or in any other way.