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Transfer of control of electronic certificates of title only available electronically

Subscribers must submit transfers of control of electronic certificates of title electronically between active subscribers using an Electonic Lodgment Network (ELN). Paper requests to transfer control are no longer accepted.

Applications for discharges of mortgages when mortgagee is a deregistered company

Typically, a registered mortgage can only be removed from the Register of land (the Register) by the registration of a discharge of mortgage instrument under section 84(1) of the Transfer of Land Act 1958 (TLA).

In some circumstances, a discharge instrument cannot be obtained. Section 84(2) of the TLA allows the Registrar to amend the Register to remove a mortgage if satisfied certain requirements have been met.

Section 84(2)(b)(ii) of the TLA requires that the Registrar be satisfied a discharge of mortgage is not able to be obtained because the mortgagee is a body corporate and the authorised agent of the body corporate cannot be located or the agent’s signature cannot be obtained within a reasonable time.

When a mortgagee is a deregistered company, its assets may have vested in Australian Securities and Investments Commission (ASIC) upon deregistration, in accordance with section 601AD of the Corporations Act 2001 (Cth) (Corporations Act).

In this event, an application under section 84(2) of the TLA is not appropriate. As the interest has vested in ASIC, ASIC can execute a discharge of mortgage pursuant to ordinary conveyancing practices and Part 5A.1 of the Corporations Act.

Before applying under section 84(2) of the TLA to remove a mortgage when the mortgagee is a deregistered company, registered proprietors must make an application to ASIC’s Property Law Group for ASIC to execute a discharge of mortgage. More information on how to make such an application is available on ASIC’s website at https://asic.gov.au/for-business/closing-your-company/effects-of-deregistration/applying-to-asic-to-deal-with-deregistered-company-property/a-deregistered-company-has-a-mortgage-over-your-property/.

If ASIC is unable to execute the discharge, evidence including the application to ASIC and the outcome of that application must be provided with any subsequent application under section 84(2) of the TLA as supporting documents.

Lodgment of Registrar’s Caveats

Customers are reminded that, from 1 August 2019, a request seeking the recording of a Registrar’s Caveats on a folio of the Register under section 106(1)(a) of the TLA is mandated as an instrument for electronic lodgment using an Electronic Lodgment Network (ELN). Other written requests will not be accepted.

The instrument must set out the grounds of the application under Additional Details and provide applicable Supporting Documents by uploading them in the ELN. Typical grounds include certificates under section 19 State Trustee (State-Owned Company) Act 1994, VCAT Orders under the Guardianship and Administration Act 1986 (Vic) or the Guardianship and Administration Act 2019 (Vic) or Court letters. A statutory declaration stating that the represented person is one and the same as the registered proprietor may be required as a Supporting Document.

Please see the Guide to Residual Documents at Fees, guides and forms (land.vic.gov.au) for more information.

Electronic signing of legal practitioner’s certificates

Certain instruments lodged for registration or recording are required to be supported by a legal practitioner’s certificate.

Under section 9(1) of the Electronic Transactions (Victoria) Act 2000, the Registrar consents to legal practitioner’s certificates being signed by electronic signature when the following requirements are met:

1. The legal practitioner who electronically signs the legal practitioner’s certificate is the same legal practitioner who digitally signs the electronic instrument the certificate supports. For example, the residual document: Application to request action by the Registrar – Application - remove caveat under section 89A of the Transfer of Land Act 1958 must be digitally signed by the same lawyer who electronically signed the supporting legal practitioner’s certificate.
2. The method of electronic signing is reliable and appropriate.

Methods of electronic signing which the Registrar considers reliable and appropriate are limited to:

• an electronic signature, for example using a digital signing program such as DocuSign
• a digitised image of a physical signature
• electronic drawing of a signature, for example using a digital pen or touchscreen, or software such as Adobe Sign

In all other circumstances the Registrar will continue to require physical (wet) signing of a legal practitioner’s certificate. If lodging electronically, a PDF copy of the original signed certificate must be uploaded. If lodging in paper, the original signed certificate must be produced.

Page last updated: 09/01/24