Australia: eSignatures on a contract or guarantee: Why you need to be cautious

Last Updated: 8 November 2016
Article by Tal Williams and Lucy Williams

Electronic signatures, also known as eSignatures, are a simple means by which documents can be legally signed. In this era, where rapidly growing technology is having a high impact on the business world, eSignatures have allowed for a faster more efficient way for people to legally complete and exchange a range of contracts, approvals, agreements and transactions.

There are a number of software programs offering this service including DocuSign and HelloFax. They allow users to upload a signature to their private online accounts, which can then be logged into at any date to electronically apply their signature to a document.

However, despite the benefits of eSignatures, the recent case of Williams Group Australia Ltd v Crocker [2016] NSWCA 265 has been a timely reminder that eSignatures must be dealt with cautiously. Here, the New South Wales Court of Appeal found that a company director was not bound by a guarantee which bore his eSignature.


In July 2010, the appellant, Williams Group Australia Pty Ltd (Williams), a supplier of building materials, approved a credit application by IDH Modular Pty Ltd (IDH), a company established to supply building modules.

Mr Crocker was one of the three directors of IDH. The credit application bore the eSignature of each director of IDH in his capacity as director. It was accompanied by an all-moneys guarantee also bearing the eSignatures of the three directors in their capacities as guarantors.

The respective eSignatures had been affixed to the documents using the "HelloFax" system. Mr Crocker had been provided with a username and password by one of his co-directors to enable him to access the HelloFax system. He did not change the password during the relevant period, with the result that anyone who had these login details would be able to affix Mr Crocker's electronic signature to documents.

In October 2013, IDH went into liquidation and the guarantees were called upon. Summary judgment was subsequently obtained against Mr Crocker's two co-directors.

In comparison Mr Croker, at first instance, successfully defended the claim made against him on the basis that his eSignature had been placed on the application and guarantee by an unknown person without his knowledge or authority.

Williams appealed.


The Court of Appeal upheld the decision at first instance. The Court held that there was no ostensible authority, and nothing 'moved from' Mr Crocker. He gave no authorisation or representation, to either the 'unknown person' who signed the document, or to Williams, that his signature was to be added to the document. No conduct amounted to a holding out of authority to Williams.

Rather, what the court recognised was that a person (in this situation, Mr Crocker), must have 'full knowledge of all material circumstances' if they are to be held accountable for liabilities arising out of a document executed in their name. On the facts, the court found that Mr Crocker did not have this required knowledge.

It was likewise established that Mr Crocker did not wilfully turn a blind eye to the situation. Even though he had access to the HelloFax System, which displayed a list of signed documents, the relevant document would only have been referred to as a 'credit application' and not a 'personal guarantee'.

Ultimately, the court held that the evidence did not establish a representation by Mr Crocker as to the genuineness of his signature on the guarantee or as to his authorisation of anyone else to place his electronic signature on the guarantee. He was not liable under the guarantee.

What this means for you?

This decision supports the preposition that any use of an eSignature by a person other than the owner of the signature cannot be relied upon to enforce personal liabilities under a contract unless there is a clear intention or representation by the owner of the signature, that use of such a signature was authorised.

What suffices as a clear intention or representation may be contentious. For this reason, those who use eSignatures should make sure they do two things. First, they must ensure their passwords are kept secret, so as to avoid any unknown user logging onto their account and affixing their signature to documents. Second, they must ensure they are aware of all the contracts upon which their signature has been affixed.

Complying with these two criteria is the surest way to protect yourself from any liability arising from use of your eSignature. It will ensure that all documents affixed with your eSignature have been correctly authorised and that no costly litigation surrounding intention and fraud may rise from any unauthorised use.

In addition, if you are relying on an eSignature to enforce a contract or agreement, it would be wise to seek direct authority from all persons signing the document each and every time they affix their eSignature. You must prove that they were aware that their signature was to be affixed to the agreement. This must be done as, without authority, the document may itself be ineffective.

Ultimately, those using or relying on eSignatures must assess and minimise their risk. While eSignatures can increase the speed and efficiency of contract execution, precautions must be put in place to ensure all contracts are validly signed and are in fact enforceable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.