Notarising for a Company Versus an Individual

When you notarise a document for yourself, the notary has one question to answer: are you who you say you are. When you notarise for a company, there are three: does the company exist, do you hold the office you claim, and are you authorised to bind it to this document. The extra two are where corporate matters go wrong.

Key takeaways

• A personal matter needs identification, the document and usually one appointment.
• A company matter also needs evidence of the company's existence, the signer's office, and their authority for this transaction.
• A current company extract, a board resolution for the specific document, and the signer's own photo ID are the usual core.
• Australian companies need not have a common seal, but some overseas registries expect one. Ask before signing.
• For a company registered overseas, the corporate evidence has to come from that country's register, and often needs its own authentication first.

The three questions in a corporate matter

Does the company exist? A company is a legal person, but not a visible one. The notary cannot see it walk in. Existence has to be evidenced.

Does this person hold the office they claim? Being introduced as a director is not evidence of being one.

Is this person authorised to bind the company to this document? The one people forget. Holding office and having authority for a particular transaction are different things, and an overseas registry acting on the certificate will assume both were checked.

For an individual, only the identity question arises, along with the checks a notary always makes that the signer understands the document and is signing freely. That is the whole difference, and it accounts for everything below.

What a notary will normally want to see

Expect the notary to ask for material in advance rather than at the counter.

• Evidence the company exists and who its officers are. In Australia this is typically a current company extract from the national register, obtained recently rather than from a file. "Recently" matters: a registry acting on the certificate wants a current picture, and an extract from two years ago describes a company that may have changed.
• Evidence of the signatory's office. Usually contained in the same extract. Where the signatory is not an officer, something else is needed.
• Evidence of authority for this transaction. Commonly a board resolution or minute authorising the specific document, or a power of attorney granted by the company. Generic authority is weaker than specific authority, and for significant documents notaries and foreign registries both prefer the specific kind. See board resolutions for overseas use.
• The company's constitution, where the transaction or the destination requires the notary to certify something about the company's powers or its manner of execution.
• Identification for the individual signing, exactly as for a personal matter. See ID a notary will accept.

A government-issued company extract is itself a public document. DFAT's list of documents it can legalise includes government commercial documents such as ASIC records, so if the receiver only wants the extract, ask DFAT whether it can go to them directly with no notary. The notary is needed for what the company signs, not for what the government issued.

The practical differences

	Individual	Company
Questions the notary answers	Identity	Identity, existence, office, authority
Evidence to bring	Photo ID and any name-change link	Photo ID, current extract, resolution or power of attorney, sometimes the constitution
What the certificate asserts	A named person signed before the notary	Possibly also that the company exists, the signer holds office, and execution was proper
Prescribed wording	Occasionally	Often, from the destination registry
Signatories	You	Every officer who must sign, each with ID
Where delays come from	A name mismatch	Missing corporate evidence, or a foreign company's records

What the certificate says, and why it is riskier

A personal notarial certificate records that a named individual, identified by the notary, signed in the notary's presence.

A corporate certificate does more. It may certify that the company exists, that a named person holds a stated office, that a resolution was passed, and that the document was executed in a manner appropriate for the company. Each of those is a separate assertion, and each must be supported by evidence the notary actually sighted.

This is why a notary will not simply write "signed by the director" because you said so. The certificate is relied on by a foreign registry that cannot check anything, and the notary's permanent register is the only record of what was verified. It is also why the wording is often prescribed. Destination registries frequently require particular formulations, such as certifying that a company is duly incorporated and in good standing, or that signatories signed in accordance with the company's constitution. Send the notary the required wording before the appointment if you have it; they can then tell you what evidence is needed to support it. See company records for a foreign registry.

Execution: the part that quietly fails

Companies can execute documents in more than one way, and different destinations have different expectations about which is acceptable. The patterns you will encounter include two officers signing, a sole director who is also sole secretary signing, a company seal affixed and witnessed, or an attorney signing under a power of attorney granted by the company. Which is available depends on the company's constitution and on the law under which it is incorporated. Which is acceptable depends on the destination.

The failure mode is a document executed in a way that is perfectly valid in Australia and unfamiliar to the receiving registry. Australian companies are not required to have a common seal, and overseas registries sometimes expect one as a matter of course. Ask the receiving party what they expect to see before executing, not after. Whether a particular method is legally effective for the transaction is a question for a solicitor, here or in the destination.

When the signer is not a director

Companies often want a manager, an in-house lawyer or an outside agent to sign. That is possible, but the extract will not show that person's authority, so something else must. The usual evidence is a power of attorney granted by the company, executed in one of the ways described above, together with a resolution or confirmation that it has not been revoked. The notary will want to see the original power of attorney, or a certified copy, and will describe in the certificate the capacity in which the person signed. If the foreign registry has its own form of power of attorney, use that form rather than an Australian one, and have it executed by the company before the attorney's appointment with the notary. See powers of attorney and declarations, and for board changes abroad, appointing an overseas director.

A company registered overseas

Generally an Australian notary can attest the signature of a person appearing before them in Australia, whichever company they sign for. Certifying facts about a foreign company is different. None of the Australian registry material is available, and the equivalent evidence comes from that jurisdiction's register, often needing its own translation and authentication before the Australian notary can rely on it. Start this early; it is the most common cause of delay in corporate matters. An Australian notary cannot vouch for a foreign registry's document, only for what they sighted and did.

Preparing a company matter, step by step

1. Ask the receiving registry or party what it needs: the document, the execution method, any prescribed certificate wording, and whether a translation is required.
2. Obtain a current company extract.
3. Pass a board resolution authorising the specific document and naming who signs.
4. Send everything to the notary before booking, and confirm who must attend.
5. Attend with every signatory and their photo ID; the notary completes the certificate.
6. Lodge with DFAT for an apostille or authentication, then any embassy step.

Here is an illustration, not a real case

A Melbourne company with one director, who is also its secretary, is registering a branch overseas. The foreign registry sends a form requiring a notarial certificate that the company is duly incorporated, that the signer is a director, and that the form was signed under the company seal. The company has no seal. Before booking, the director obtains a fresh extract and passes a resolution authorising the application, then asks the registry whether an Australian company without a seal is acceptable. The registry agrees to a certificate explaining that Australian companies need not have a seal and describing how the company executed the form. The notary sights the extract and resolution, identifies the director, and certifies what the evidence shows. DFAT then apostilles the certificate.

In short

For yourself, bring photo ID. For a company, bring photo ID plus a current extract, a resolution for this document, and anything the destination prescribes, and confirm the execution method with the receiver before anyone signs. The notary can only certify what the evidence they sighted supports, so gather it first. Expect a company matter to involve more notarial acts, and ask for a quote on that basis.

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Preparing company documents for an overseas registry? Send us the registry's requirements and your draft, and we will explain each step before you book.