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This is a Bill, not an Act. For current law, see the Acts databases.
PARTNERSHIP (VENTURE CAPITAL FUNDS) AMENDMENT BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Partnership
(Venture Capital Funds) Amendment Bill 2004
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Partnership (Venture
Capital Funds) Amendment Bill 2004
A Bill for
An Act to amend the
Partnership Act
1963
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Partnership (Venture Capital Funds) Amendment Act
2004.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Partnership Act 1963.
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘incorporated limited
partnership—see section 51.’ means that the term
‘incorporated limited partnership’ is defined in that
section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
4 Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
substitute
5 Application of certain laws and rules of
equity
(1) The rules of equity and the common law applying to partnership
continue in force except as far as they are inconsistent with this
Act.
(2) However, except as provided (expressly or by necessary implication)
under this or another Act, the law relating to partnership does not apply in
relation to an incorporated limited partnership, the partners in an incorporated
limited partnership or the relationship between an incorporated limited
partnership and its partners.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
substitute
6 Meaning of partnership
(1) Partnership is the relation between people carrying on a
business in common with a view of profit, and includes an incorporated limited
partnership.
Note Partnership includes an external partnership in
some stated provisions in part 6 (Incorporated limited partnerships).
(2) The relation between members of a corporation (other than an
incorporated limited partnership), whether formed or incorporated in or outside
the ACT, is not a partnership under this Act.
7 Rules
for determining existence of partnershipNew
section 7 (5)
insert
(5) This section does not apply in relation to an incorporated limited
partnership.
8 Firms
and firm namesSection
8
omit
substitute
9 Power of certain partners to bind
firm
(1) A partner in a firm other than an incorporated limited partnership is
the agent of the firm, and of the other partners in the firm, for the purposes
of the firm’s business.
(2) An act done by a partner in a firm other than an incorporated limited
partnership, for carrying on in the usual way business of the kind carried on by
the firm, binds the firm and the other partners in the firm
unless—
(a) the partner who does the act has in fact no authority to act for the
firm in the particular matter; and
(b) the person with whom the partner is dealing either knows that the
partner has no authority or does not know or believe the partner to be a partner
in the firm.
(3) A general partner in an incorporated limited partnership is the agent
of the partnership, and of the other general partners in the partnership, for
the purposes of the partnership’s business.
(4) An act done by a general partner in an incorporated limited
partnership, for carrying on in the usual way business of the kind carried on by
the partnership, binds the partnership and the other general partners in the
partnership unless—
(a) the general partner who does the act has in fact no authority to act
for the partnership in the particular matter; and
(b) the person with whom the general partner is dealing either knows that
the general partner has no authority or does not know or believe the general
partner to be a general partner in the partnership.
10 Partners bound by acts on behalf of
firm
(1) An act or instrument relating to the business of a firm other than an
incorporated limited partnership is binding on the firm and all the partners in
the firm if it is done or executed by a person authorised to do the act or
execute the instrument (whether or not a partner in the firm)—
(a) in the firm name; or
(b) in any other way showing an intention to bind the firm.
(2) An act or instrument relating to the business of an incorporated
limited partnership is (subject to section 13 (5) (Liability of partner))
binding on the partnership and all the general partners in the partnership if it
is done or executed by a person authorised to do the act or execute the
instrument (whether or not a general partner in the
partnership)—
(a) in the firm name; or
(b) in any other way showing an intention to bind the
partnership.
(3) This section does not affect a rule of law about the execution of
deeds or negotiable instruments.
11 Partner using credit of firm for private
purpose
(1) If a partner in a firm other than an incorporated limited partnership
pledges the credit of the firm for a purpose apparently not connected with the
ordinary course of the firm’s business, the firm is not bound unless the
partner is in fact specially authorised by the other partners in the
firm.
(2) Subsection (1) does not affect a personal liability incurred by an
individual partner.
(3) If a general partner in an incorporated limited partnership pledges
the credit of the partnership for a purpose apparently not connected with the
ordinary course of the partnership’s business, the partnership is not
bound unless the general partner is in fact specially authorised by the
partnership.
(4) Subsection (3) does not affect a personal liability incurred by an
individual general partner.
12 Effect of notice that firm will not be bound by
acts of partner
(1) If it has been agreed by the partners in a firm other than an
incorporated limited partnership that restrictions are to be placed on the power
of 1 or more of the partners to bind the firm, an act contravening the agreement
is not binding on the firm in relation to a person with notice of the
agreement.
(2) If it has been agreed by the partners in an incorporated limited
partnership that restrictions are to be placed on the power (if any) of 1 or
more of the partners to bind the partnership, an act contravening the agreement
is not binding on the partnership in relation to a person with notice of the
agreement.
13 Liability of partner
(1) Each partner in a firm other than an incorporated limited partnership
is liable jointly with the other partners in the firm for the debts and
obligations of the firm incurred while the partner is a partner.
(2) If the partner is an individual, after the partner’s death the
dead partner’s estate is severally liable in the due course of
administration for the debts and obligations of the firm incurred while the dead
partner was a partner that remain unsatisfied, but subject to the earlier
payment of the dead partner’s separate debts.
(3) Each general partner in an incorporated limited partnership is liable
jointly with the incorporated limited partnership for the debts and obligations
of the partnership incurred while the general partner is a general
partner.
(4) If the general partner is an individual, after the general
partner’s death the dead partner’s estate is severally liable in the
due course of administration for the debts and obligations of the partnership
incurred while the dead partner was a partner that remain unsatisfied, but
subject to the earlier payment of the dead partner’s separate
debts.
(5) However, a general partner in an incorporated limited partnership is
only liable for the debts and obligations of the partnership—
(a) to the extent the partnership cannot satisfy the debts and
obligations; or
(b) to a greater extent provided by the partnership agreement.
substitute
14 Liability of firm not incorporated limited
partnership for wrongs
omit
in a firm
substitute
in a firm other than an incorporated limited partnership
omit
a partner who commits a wrongful act or omission as a director of a body
corporate
substitute
a partner in a firm other than an incorporated limited partnership who
commits a wrongful act or omission as a director of a company or other body
omit
corporate
insert
14A Liability of incorporated limited partnership for
wrongs
(1) This section applies if, by any wrongful act or omission of a general
partner (the relevant partner) in an incorporated limited
partnership, acting in the ordinary course of the partnership’s business,
or with its authority—
(a) loss or injury is caused to someone who is not a partner in the
partnership; or
(b) a penalty is incurred.
(2) The incorporated limited partnership is liable in relation to the
loss, injury or penalty to the same extent as the relevant partner.
(3) For this section, a general partner in an incorporated limited
partnership who commits a wrongful act or omission as a director of a company or
other body (within the meaning of the Corporations Act), as a member of a
Territory authority, or as a member of the board (however described) of a
Territory authority, is not to be taken to be acting in the ordinary course of
the partnership’s business, or with its authority, only because of 1 or
more of the following:
(a) the general partner obtained the agreement or authority of the
partnership to be appointed or to act as director or member;
(b) the remuneration that the general partner receives as director or
member forms part of the income of the partnership;
(c) any other general partner in the partnership is also a director of a
company or other body (within the meaning of the Corporations Act), member of a
Territory authority, or member of the board (however described) of a Territory
authority, whether of the same or a different body, Territory authority or
board.
substitute
15 Misapplication of money or property received for,
or in custody of, firm
(1) If either or both of the following happens, a firm that is not an
incorporated limited partnership is liable to make good the loss:
(a) a partner in the firm, acting within the scope of the partner’s
apparent authority, receives someone else’s money or property and
misapplies it;
(b) in the course of the firm’s business, the firm receives someone
else’s money or property, and the money or property is misapplied by 1 or
more of the partners while in the firm’s custody.
(2) If either or both of the following happens, an incorporated limited
partnership is liable to make good the loss:
(b) a general partner in the partnership, acting within the scope of the
general partner’s apparent authority, receives someone else’s money
or property and misapplies it;
(b) in the course of the partnership’s business, the partnership
receives someone else’s money or property, and the money or property is
misapplied by 1 or more of the general partners while in the partnership’s
custody.
(3) In this section:
someone else, in relation to a firm that is not an
incorporated limited partnership or an incorporated limited partnership, does
not include a partner in the partnership.
16 Liability for wrongs joint and
several
(1) Each partner in a firm other than an incorporated limited partnership
is liable jointly with the other partners in the firm, and severally, for
everything for which the firm becomes liable under section 14 (Liability of firm
not incorporated limited partnership for wrongs) or section 15 while the partner
is a partner in the firm.
(2) Each general partner in an incorporated limited partnership is liable
jointly with the other general partners in the partnership, and severally, for
everything for which the partnership becomes liable under section 14A (Liability
of incorporated limited partnership for wrongs) or section 15 while the general
partner is a general partner in the partnership.
(3) However, a general partner in an incorporated limited partnership is
only liable for any liability of the partnership mentioned in subsection
(2)—
(a) to the extent the partnership cannot satisfy the liability;
or
(b) to a greater extent provided by the partnership agreement.
17 Improper use of trust property for partnership
other than incorporated limited partnership
(1) If a partner in a firm other than an incorporated limited partnership
who is a trustee improperly uses trust property in the firm’s business, or
for the firm, another partner in the firm is not liable for the trust property
to the people beneficially interested in the property.
(2) Subsection (1) does not—
(a) affect any liability incurred by a partner because the partner knew
about a breach of trust; and
(b) prevent trust money from being followed and recovered from the firm if
still in the possession, or under the control, of the firm.
17A Improper use of trust property for incorporated
limited partnership
(1) If a general partner in an incorporated limited partnership who is a
trustee improperly uses trust property in the partnership’s business, or
for the partnership, the partnership and any other general partner is not liable
for the trust property to the people beneficially interested in the
property.
(2) Subsection (1) does not—
(a) affect any liability incurred by any general partner because the
partner knew about a breach of trust; and
(b) prevent trust money from being followed and recovered from the
partnership if still in the possession, or under the control, of the
partnership.
18 People liable by holding out
(1) Subsection (2) applies if a person (the apparent
partner)—
(a) represents himself or herself as a partner in a firm other than an
incorporated limited partnership by words (whether spoken or written) or
conduct; or
(b) knowingly allows himself or herself to be represented as a partner in
a firm other than an incorporated limited partnership.
(2) The apparent partner is liable as a partner in the firm to anyone who
has, because of the representation, given credit to the firm, whether the
representation has or has not been made or communicated to the person giving
credit by or with the knowledge of the apparent partner.
(3) Subsection (4) applies if a person (the apparent general
partner)—
(a) represents himself or herself as a general partner in an incorporated
limited partnership by words (whether spoken or written) or conduct;
or
(b) knowingly allows himself or herself to be represented as a general
partner in an incorporated limited partnership.
(4) The apparent general partner is liable as a general partner in the
partnership to anyone who has, because of the representation, given credit to
the partnership, whether the representation has or has not been made or
communicated to the person giving credit by or with the knowledge of the
apparent general partner.
(5) If, after the death of a partner in a firm, the firm’s business
is continued in the old firm name, the continued use of that name or the name of
the dead partner as part of that name does not, of itself, make the
partner’s legal personal representatives or the partner’s estate or
effects liable for the firm’s debts contracted after the partner’s
death.
19 Admissions and representations of
partners
(1) An admission or representation made by a partner in a firm other than
an incorporated limited partnership about the firm’s affairs, and in the
ordinary course of the firm’s business, is evidence against the
firm.
(2) An admission or representation made by a general partner in an
incorporated limited partnership about the partnership’s affairs, and in
the ordinary course of the partnership’s business, is evidence against the
partnership.
20 Notice to acting partners is notice to
firm
(1) Notice to a partner in a firm other than an incorporated limited
partnership who habitually acts in the firm’s business, of a matter
relating to the firm’s affairs, operates as notice to the firm, except for
fraud on the firm committed by or with the consent of that partner.
(2) Notice to a general partner in an incorporated limited partnership who
habitually acts in the partnership’s business, of a matter relating to the
partnership’s affairs, operates as notice to the partnership, except for
fraud on the partnership committed by or with the consent of that
partner.
21 Liabilities of incoming and outgoing
partners
(1) A person who is admitted as a partner in an existing firm other than
an incorporated limited partnership does not by that admission alone become
liable for anything done before the person became a partner.
(2) A person who is admitted as a general partner in an existing
incorporated limited partnership does not by that admission alone become liable
for anything done before the person became a general partner.
(3) A partner who retires from a firm other than an incorporated limited
partnership does not by that retirement alone stop being liable for the
firm’s debts and obligations incurred before the partner’s
retirement.
(4) A partner who retires from an incorporated limited partnership does
not by that retirement alone stop being liable for the partnership’s
liabilities incurred before the partner’s retirement for which the partner
was liable.
(5) A retiring partner in a firm other than an incorporated limited
partnership may be discharged from any existing liabilities by agreement between
the partner, the members of the firm as newly constituted and the creditors, and
this agreement may be either express or inferred as a fact from the course of
dealing between the creditors and the firm as newly constituted.
(6) A retiring partner in an incorporated limited partnership may be
discharged from any existing liabilities by agreement between the partner, the
partnership and the creditors, and this agreement may be either express or
inferred as a fact from the course of dealing between the creditors and the
partnership.
(7) In subsection (4) and (6):
liabilities—see section 51.
16 Revocation
of continuing guaranty by change of
firmSection 22
omit
A continuing
substitute
(1) A continuing
insert
(2) This section does not apply in relation to an incorporated limited
partnership.
substitute
24 Partnership property of firms other than
incorporated limited partnerships
insert
(4) This section does not apply in relation to an incorporated limited
partnership.
insert
24A Partnership property of incorporated limited
partnership
(1) All property, and rights and interests in property, acquired, whether
by purchase or in another way, on account of an incorporated limited
partnership, or for and in the course of the partnership’s business, are
for this Act partnership property.
(2) The partnership property of an incorporated limited partnership must
be applied by the partnership exclusively for the partnership.
(3) A partner in an incorporated limited partnership does not have any
legal or beneficial interest in its partnership property only because the
partner is a partner in the partnership.
substitute
25 Land bought by co-owners out of profits from
land—other than incorporated limited partnerships
omit
Where
substitute
(1) If
insert
(2) This section does not apply in relation to an incorporated limited
partnership.
24 Conversion
into personalty of land held by firmSection
27
omit
Where
substitute
(1) If
insert
(2) This section does not apply in relation to an incorporated limited
partnership.
26 Procedure
against partnership property for partner’s separate judgment
debtNew section 28 (4)
insert
(4) Subsections (2) and (3) do not apply in relation to an incorporated
limited partnership.
substitute
29 Rules about interests and duties of partners other
than in incorporated limited partnership
insert
(11) This section does not apply in relation to an incorporated limited
partnership.
29 Retirement
from partnership at willSection
31
omit
Where
substitute
(1) If
insert
(2) This section does not apply in relation to an incorporated limited
partnership.
31 Partnership
for term continued overNew section 32
(3)
insert
(3) This section does not apply in relation to an incorporated limited
partnership.
substitute
33 Duty of partner to give
accounts
(1) A partner in a firm other than an incorporated limited partnership
must give true accounts and full information about everything affecting the firm
to another partner or another partner’s legal personal
representatives.
(2) An incorporated limited partnership must, subject to the partnership
agreement, give true accounts and full information about everything affecting
the partnership to any partner or any partner’s legal personal
representatives.
33 Accountability
of partners for private profitsNew section
34 (3)
insert
(3) This section does not apply in relation to an incorporated limited
partnership.
34 Duty
of partner not to compete with firmSection
35
omit
If a partner
substitute
(1) If a partner
insert
(2) This section does not apply in relation to an incorporated limited
partnership.
36 Rights
of assignee of share in partnershipNew
section 36 (4)
insert
(4) This section does not apply in relation to an incorporated limited
partnership.
in part 5, insert
36A Application of pt 5
This part does not apply in relation to an incorporated limited
partnership.
insert
Part 6 Incorporated limited
partnerships
Division
6.1 Preliminary
51 Definitions for pt 6
In this part:
external partnership means a partnership (or legal entity,
however described, in the nature of a partnership) formed under the law of a
State, another Territory, foreign country or another jurisdiction, whether or
not under the law—
(a) the liability of any partner for the liabilities of the partnership
(or entity) is limited; and
(b) the partnership (or entity) is incorporated or is otherwise a separate
legal entity.
firm name means—
(a) for an incorporated limited partnership—the name of the
partnership recorded in the register; and
(b) for an external partnership—the name under which the
partnership’s business is carried on under the law of the place where it
is formed.
general partner, for an incorporated limited partnership,
means a person or partnership (including an external partnership) admitted as a
partner in the incorporated limited partnership in accordance with the
partnership agreement and who is not a limited partner.
incorporated limited partnership means a partnership formed
under this part, and a reference to the partnership is a reference to the
partnership as a separate legal entity and not the partners in the
partnership.
liability includes any debt, obligation or liability of any
kind, wherever and however incurred.
limited partner, for an incorporated limited partnership,
means a person or partnership (including an external partnership) admitted and
designated as a limited partner in the incorporated limited partnership in
accordance with the partnership agreement.
partner, for an incorporated limited partnership, means a
general partner or limited partner.
register—see section 60 (Register of incorporated
limited partnerships).
registered information—see section 59 (4) (Registration
of incorporated limited partnership).
special resolution, of limited partners in an incorporated
limited partnership, means a resolution that has been passed by at least 75% of
the limited partners.
52 Application of other provisions of this Act
(1) Parts 1 to 4 apply to incorporated limited partnerships, except as
provided under those parts or this part.
(2) If a provision made under this part is inconsistent with a provision
made under any other part that applies to incorporated limited
partnerships—
(a) the provision made under this part prevails; and
(b) the other provision does not, to the extent of the inconsistency, have
effect in relation to incorporated limited partnerships.
Division 6.2 Nature and formation of
incorporated limited partnerships
53 Incorporated limited partnership formed on
registration
An incorporated limited partnership is formed on registration under this
part.
54 Incorporated limited partnership is separate legal
entity
(1) An incorporated limited partnership—
(a) is a corporation with legal personality separate from its partners and
with perpetual succession; and
(b) may have a common seal; and
(c) may sue and be sued in its firm name.
(2) The common seal of an incorporated limited
partnership—
(a) must be kept as the partnership directs; and
(b) may only be used if the use is authorised by the
partnership.
55 Partners in incorporated limited partnership
(1) An incorporated limited partnership must have—
(a) at least 1 general partner but no more than 20 general partners;
and
(b) at least 1 limited partner.
(2) A corporation may be a general partner or limited partner.
(3) A partnership (including an external partnership) may be a general
partner or limited partner in an incorporated limited partnership.
(4) For subsection (1) (a)—
(a) if a general partner is a partnership or external partnership and no
partner in that partnership has, under the law of the place where the
partnership is formed, limited liability for the liabilities of the
partnership—the number of partners in that partnership is counted;
and
(b) if a general partner is a partnership or external partnership and any
partner in that partnership has, under the law of the place where the
partnership is formed, limited liability for the liabilities of the
partnership—only the number of partners in that partnership whose
liability is not limited is counted.
56 Partnership agreement
(1) There must at all times be a written partnership agreement between the
partners in an incorporated limited partnership.
(2) The interests of the partners in an incorporated limited partnership
and their rights and duties in relation to the partnership are, subject to this
Act, to be decided in accordance with the partnership agreement.
(3) A partnership agreement also has effect as a contract between the
incorporated limited partnership and each partner under which the partnership
and each partner agree to comply with and perform the agreement so far as it
applies to them.
(4) Subsection (3) does not prevent an incorporated limited partnership
itself signing a partnership agreement.
Division 6.3 Registration of incorporated
limited partnerships
57 Who may apply for
registration
(1) An application for registration as an incorporated limited partnership
may be made, in the circumstances mentioned in subsection (2),
by—
(a) a partnership (including an external partnership); or
(b) any people or partnerships (including external partnerships), or both,
proposing to be the partners in the proposed incorporated limited
partnership.
(2) The circumstances are—
(a) that the partnership is registered under the Venture Capital Act
2002 (Cwlth), part 2 (Registration of venture capital limited partnerships
and Australian venture capital funds of funds) as a VCLP or AFOF; or
Note VCLP is a venture capital limited
partnership and an AFOF is an Australian venture capital fund of
funds.
(b) that a general partner in the partnership, or a proposed general
partner in the proposed incorporated limited partnership, intends to apply for
registration of the incorporated limited partnership, or proposed partnership,
under the Venture Capital Act 2002 (Cwlth), part 2 as a VCLP or AFOF;
or
(c) that the partnership is a venture capital management partnership under
the Income Tax Assessment Act 1936 (Cwlth), section 94D (3) (Corporate
limited partnerships); or
(d) that the partners in the partnership, or the proposed partners in the
proposed incorporated limited partnership, intend that the partnership, or
proposed partnership, intends to meet the requirements set out in Income Tax
Assessment Act 1936 (Cwlth), section 94D (3) for recognition as a venture
capital management partnership; or
(e) any other circumstances prescribed under the regulations.
58 Application for registration
(1) An application for registration as an incorporated limited partnership
must be made to the commissioner for fair trading.
Note 1 A fee may be determined under s 99 for this
provision.
Note 2 If a form is approved under s 100
for this provision, the form must be used.
(2) The application must be signed—
(a) if the application is made by a partnership (including an external
partnership)—by each partner in the partnership or by a person authorised
to make the application on behalf of the partnership and the partners in it;
or
(b) if the application is made by any people or partnerships (including
external partnerships), or both, proposing to be the partners in the proposed
incorporated limited partnership—by each proposed partner.
(3) The application must—
(a) for an application by a partnership (including an external
partnership), include—
(i) the firm name of the partnership; and
(ii) the full address of the office or principal office in the ACT of the
partnership (the registered office of the proposed partnership);
and
(b) for an application by people or partnerships (including external
partnerships) proposing to be the partners in the proposed incorporated limited
partnership, include—
(i) the proposed firm name of the proposed partnership; and
(ii) the full address of the proposed office or principal office in the
ACT of the proposed partnership (the registered office of the
proposed partnership); and
(c) include the full name of each partner or proposed partner or, if the
partner or proposed partner is a partnership (including an external
partnership), the name of the firm or, if the firm does not have a name, the
full name of each partner in the firm; and
(d) include the full address of each partner or proposed partner as
follows:
(i) for an individual—the person’s home address;
(ii) for a corporation—the corporation’s registered office or
principal place of business;
(iii) for a partnership (including an external partnership)—the
partnership’s registered office or principal office; and
(e) state whether each partner or proposed partner is, or is proposed to
be, a general partner or limited partner; and
(f) for each partner or proposed partner that is a partnership (including
an external partnership)—state that the partner or proposed partner is a
partnership; and
(g) for an application by a partnership that is registered under the
Venture Capital Act 2002 (Cwlth), part 2 (Registration of venture capital
limited partnerships and Australian venture capital funds of funds) as a VCLP or
AFOF—be accompanied by a copy of a document proving its status as a VCLP
or AFOF; and
(h) for an application by people or partnerships (including external
partnerships) proposing to be partners in a partnership that intends to apply
for registration under the Venture Capital Act 2002 (Cwlth), part 2 as a
VCLP or AFOF—state that it intends to apply; and
(i) for an application by a partnership that is a venture capital
management partnership under the Income Tax Assessment Act 1936 (Cwlth),
section 94D (3) (Corporate limited partnerships)—state that it is that
partnership; and
(j) for an application by people or partnerships (including external
partnerships) proposing to be a partnership that intends to meet the
requirements for recognition as a venture capital management partnership under
the Income Tax Assessment Act 1936 (Cwlth), section 94D (3)—state
that it intends to meet the requirements; and
(k) include any other information prescribed under the
regulations.
59 Registration of incorporated limited
partnership
(1) If an application for registration of an incorporated limited
partnership is properly made under this division, the commissioner must register
the incorporated limited partnership.
Note The firm name of an incorporated limited partnership is the
name of the partnership recorded in the register (see s 51, def firm
name).
(2) Before recording the name of an incorporated limited partnership in
the register, the commissioner for fair trading must ask the registrar-general
whether the name would be eligible for registration as a business name under the
Business Names Act 1963.
(3) The commissioner for fair trading must not record a name in the
register as the firm name of an incorporated limited partnership if the
registrar-general is of the opinion that the name would not be eligible for
registration as a business name under the Business Names Act
1963.
(4) An incorporated limited partnership is registered by recording in the
register the information in the application under section 58 for its
registration (the registered information).
60 Register of incorporated limited
partnerships
(1) The commissioner for fair trading must keep a register (the
register) of incorporated limited partnerships registered under
this part.
(2) The register may be kept in any form, including electronically, that
the commissioner decides.
(3) The register must be available for public inspection at reasonable
times.
Note A fee may be determined under s 99 for this
provision.
(4) The commissioner may correct any mistake or omission in the register
by—
(a) inserting an entry; or
(b) amending an entry; or
(c) omitting an entry.
(5) The commissioner may omit an entry in the register only if satisfied
that the whole of the entry was included in error.
61 Changes in registered
information
(1) If any of the registered information changes, a statement setting out
the changes must be given to the commissioner for fair trading within 7 days
after the day the change happens.
Note 1 A fee may be determined under s 99 for this
provision.
Note 2 If a form is approved under s 100 for this provision, the
form must be used.
(2) The statement must be signed by all the general partners in the
incorporated limited partnership, or by a general partner authorised by all the
general partners for this section.
(3) The statement must contain the information required under the
regulations.
(4) If the statement is properly lodged, the commissioner for fair trading
must make the change in the register as soon as possible.
(5) Each general partner in the incorporated limited partnership commits
an offence if subsection (1) is not complied with.
Maximum penalty: 10 penalty units.
(6) It is a defence to a prosecution for an offence for failing to comply
with subsection (5) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(7) An offence against subsection (5) is a strict liability
offence.
62 Certificates of registration
etc
(1) The commissioner for fair trading must give the general partners in an
incorporated limited partnership a certificate about its formation and the
registered information when—
(a) registering the incorporated limited partnership; or
(b) making a change in its registered information; or
(c) correcting a mistake or omission in the register about the
incorporated limited partnership.
Note A fee may be determined under s 99 for this
provision.
(2) The commissioner for fair trading may, on application, give the
applicant a certificate for an incorporated limited partnership about its
formation and the registered information as at the time of the
application.
(3) A certificate under this section may be in the form that the
commissioner for fair trading considers appropriate.
(4) A certificate under this section—
(a) about the formation of an incorporated limited partnership is
conclusive evidence that the incorporated limited partnership was formed on the
date of registration mentioned in the certificate; and
(b) about the registered information for an incorporated limited
partnership as at a stated time is (unless the contrary is proven) conclusive
evidence that the partnership existed at that time; and
(c) about the general partners and limited partners in an incorporated
limited partnership as at a stated time is (unless the contrary is proven)
conclusive evidence of the general partners and limited partners as at that
time; and
(d) about any other information in the register about an incorporated
limited partnership as at a stated time is (unless the contrary is proven)
conclusive evidence of that information as at that time.
63 Business Names Act not to apply
An incorporated limited partnership need not register a business name under
the Business Names Act 1963 if the name is the firm name of the
partnership registered under this part.
64 Acts preparatory to registration do not create
partnership
Anything done in relation to the making of an application for registration
under this part by or on behalf of people or partnerships (including external
partnerships) proposing to be the partners in a proposed incorporated limited
partnership does not of itself create a partnership between the people or
partnerships.
Division 6.4 Powers of incorporated limited
partnerships
65 Powers of partnership
(1) An incorporated limited partnership has the legal capacity and powers
of an individual and also all the powers of a corporation, including, for
example, power (whether within or outside the ACT or outside Australia)
to—
(a) carry on the partnership’s business; and
(b) enter into contracts or otherwise acquire rights or liabilities;
and
(c) create, confer, vary or cancel interests in the partnership;
and
(d) acquire, hold and dispose of property; and
(e) appoint agents and attorneys, and act as agent for other people;
and
(f) form, and participate in the formation of, companies or incorporated
limited partnerships; and
(g) participate in partnerships (including external partnerships), trusts,
joint ventures, other associations and other arrangements for the sharing of
profits; and
(h) do anything else it is authorised to do under this part or the
partnership agreement.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The powers of an incorporated limited partnership may be limited by
the partnership agreement.
66 Relationship of partners to others and between
themselves
(1) Except as otherwise provided by the partnership agreement or agreed
between the partners in an incorporated limited partnership—
(a) a general partner, the partnership, or an officer, employee, agent or
representative of a general partner or the partnership, is not an agent of a
limited partner, and the acts of a general partner, the partnership, or the
officer, employee, agent or representative, do not bind a limited partner;
and
(b) a limited partner is not an agent of, or fiduciary for, a general
partner, another limited partner or the partnership, and the acts of a limited
partner do not bind a general partner, another limited partner or the
partnership itself.
(2) Subsection (1) does not prevent the making of, or limit or restrict,
an agreement between a partner (the first person) and either
another partner or the incorporated limited partnership (the second
person) under which—
(a) the first person acts as an agent of the second person and, by acting
as an agent, binds the second person; or
(b) the partnership acts as an agent of a partner and, by acting as an
agent, binds the first person.
(3) Any consent or authority that under this Act is required or permitted
to be given by a partner, 2 or more partners or all the partners may, for an
incorporated limited partnership and without limiting any other way that it
might be given, be given by that partner or those partners under the partnership
agreement either in relation to all cases, or in relation to all cases subject
to stated exceptions, or in relation to any stated case or class of
case.
(4) Any consent or authority that under this Act is required or permitted
to be given by an incorporated limited partnership may, without limiting any
other way that it might be given, be given by a general partner or 2 or more
general partners acting in accordance with the partnership agreement.
(5) A limited partner, as limited partner, is not a proper party to any
proceeding begun in a court or tribunal by or against the incorporated limited
partnership, other than a proceeding begun by the partnership against the
limited partner or by the limited partner against the partnership.
(6) This section is subject to section 68 (Limited partner not to take
part in incorporated limited partnership’s management).
(7) In subsection (1):
general partner includes, if the general partner is a
partnership or an external partnership, a partner in that partnership.
Division 6.5 Liability and powers of limited
partners
67 Limitation of liability of limited partners
(1) A limited partner has no liability for the liabilities of the
incorporated limited partnership or a general partner.
(2) Subsection (1), section 73 (Liability for conduct, acts or omissions
outside the ACT) or section 74 (Incorporated limited partnerships formed under
corresponding laws) does not prevent—
(a) a contribution of capital or property made by a limited partner to the
incorporated limited partnership being used in satisfaction of a liability of an
incorporated limited partnership or a general partner; or
(b) an obligation of a limited partner to contribute capital or property
to the incorporated limited partnership being enforced by anyone to whom the
obligation is owed in satisfaction of a liability of the partnership or a
general partner.
(3) This section is subject to section 68.
68 Limited partner not to take part in incorporated
limited partnership’s management
(1) A limited partner in an incorporated limited partnership must not take
part in the management of the incorporated limited partnership’s
business.
(2) Subsection (3) applies if—
(a) as a direct result of any wrongful act or omission of a limited
partner in an incorporated limited partnership in taking part in the management
of the partnership’s business, the limited partner causes any loss or
injury to someone who is not a partner in the partnership (a third
party); and
(b) at the time of the act or omission the third party had reasonable
grounds to believe that the limited partner was a general partner in the
partnership.
(3) The limited partner is liable for the loss or injury to the same
extent that the limited partner would have been liable if the limited partner
were a general partner in the partnership.
Note A limited partner is not an agent of the incorporated limited
partnership, and the acts of a limited partner do not bind a general partner,
another limited partner or the partnership itself (see s 66 (1)).
(4) A limited partner in an incorporated limited partnership is not to be
regarded as taking part in the management of the partnership’s business
only because the limited partner or a person acting on behalf of the limited
partner—
(a) is an employee of, or an independent contractor engaged by, the
partnership, a general partner in the partnership or an associate of the general
partner, or is an officer of a general partner that is a corporation or of an
associate of a general partner that is a corporation; or
(b) gives advice to, or on behalf of, the partnership, a general partner
in the partnership or an associate of a general partner in the proper exercise
of functions arising from the engagement of the limited partner, or a person
acting on behalf of the limited partner, in a professional capacity or arising
from business dealings between the limited partner, or a person acting on behalf
of the limited partner, and the partnership or a general partner or an associate
of the general partner; or
(c) gives a guarantee or indemnity in relation to any liability of the
partnership, a general partner in the partnership or an associate of the general
partner; or
(d) takes any action, or participates in any action taken by any other
limited partner in the partnership, for the purpose of enforcing the rights, or
safeguarding the interests, of the limited partner as a limited partner;
or
(e) if permitted by the partnership agreement—
(i) calls, requisitions, convenes, chairs, participates in, postpones,
adjourns or makes a record of a meeting of the partners, the limited partners or
any of them; or
(ii) requisitions, signs, or otherwise passes, approves, disapproves or
amends any resolution (whether or not at a meeting or in writing) of the
partners, the limited partners or any of them, including by formulating, moving,
proposing, supporting, opposing, speaking to or voting on the resolution;
or
(f) exercises a power of the limited partner under subsection (5) or has,
or exercises, a right to—
(i) have access to and inspect the books or records of the partnership or
copy any of them; or
(ii) examine the state or prospects of the business of the partnership or
advise, or consult with, other partners in relation to them; or
(g) gives advice to, consults with, or is or acts as an officer, director,
security holder, partner, agent, representative, employee of, or independent
contractor engaged by, an associate of the partnership; or
(h) is or acts as a lender to, or fiduciary for, an associate of the
partnership; or
(i) to the extent authorised by the partnership agreement, participates
on, or has or exercises any right to appoint 1 or more people to, remove 1 or
more people from, or to nominate 1 or more people for appointment to or removal
from, a committee that considers, approves of, consents to or disapproves of any
1 or more of the following proposals from a general partner:
(i) a proposal involving a material change in the nature of the
partnership’s business (including a change in, or departure from, any
investment guidelines, policies or conditions relating to the
partnership’s business);
(ii) a proposal for the adoption of a method for valuing some or all of
the partnership’s assets (including a change to, replacement of or
variation from the method);
(iii) a proposal for an extension or reduction in the period in which,
under the partnership agreement, investments (or certain kinds of investments)
can be made by the partnership, or for any approval or disapproval of
investments that the partnership does not otherwise have a right to
make;
(iv) a proposal relating to any actual or potential transaction or
anything else involving any actual or potential conflict of interest;
(v) a proposal relating to any actual or potential transaction, contract,
arrangement or understanding between 1 or more of the partners, or their
associates, and the general partner, the partnership or any associate of the
general partner or of the partnership;
(vi) a proposal for the delegation, waiver, release or variation of an
authority, right, duty or obligation of the general partner;
(vii) a proposal for the appointment or approval under the partnership
agreement of anyone as a senior executive of the general partner or an associate
of the general partner; or
(j) nominates, selects, investigates, evaluates or negotiates with anyone
in relation to the removal or replacement of a general partner, or participates
on a committee that proposes, considers, approves of, consents to or disapproves
of any nomination, selection, appointment, change in control or ownership,
suspension, replacement or removal of a general partner or an associate of a
general partner; or
(k) takes any action, or participates in any action taken by any other
limited partner, for the purpose of registering or maintaining the registration
of the partnership or a general partner in the partnership as a VCLP or AFOF
under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of
venture capital limited partnerships and Australian venture capital funds of
funds).
(5) A limited partner in an incorporated limited partnership or a person
authorised by the limited partner may, if and to the extent the partner or
person is authorised by the partnership agreement—
(a) have access to and inspect the books or records of the partnership or
copy any of them; and
(b) examine the state or prospects of the business of the partnership and
advise, or consult with, other partners in relation to them.
(6) The operation of this section may not be varied by the partnership
agreement or with the consent of the partners, whether given under the
partnership agreement or otherwise.
Note Section 66 (4) (Relationship of partners to others and between
themselves) enables partners to give consent in accordance with the partnership
agreement.
(7) Subsection (4) does not imply that a limited partner in an
incorporated limited partnership is to be regarded as taking part in the
management of the partnership’s business only because the limited partner
or a person acting on behalf of the partner does any thing in relation to the
conduct of that business that is not mentioned in that subsection.
(8) For this section, a limited partner in an incorporated limited
partnership that is a venture capital management partnership under the Income
Tax Assessment Act 1936 (Cwlth), section 94D (3) (Corporate limited
partnerships) is not to be regarded as taking part in the management of the
partnership’s business only because of any act the limited partner takes
in relation to the incorporated limited partnership in the capacity of a partner
or associate of a partner in the venture capital management
partnership.
69 Interpretation for s 68
(1) In section 68:
associate—
(a) of a general partner, includes—
(i) if the general partner is a partnership (including an external
partnership)—a partner in that partnership (a partner in the general
partner); and
(ii) anyone who has an interest in the general partner or in any partner
in the general partner, whether as security holder, trustee, responsible entity,
manager, custodian, subcustodian, nominee, administrator, executor, legal
personal representative, beneficiary or otherwise; and
(iii) anyone to whom the general partner or any partner in the general
partner has delegated any power, authority, right, duty or obligation of the
general partner in relation to the partnership or any other partnership in which
the general partner is general partner; and
(iv) if the general partner, a partner in the general partner or a person
covered by subparagraph (ii) or (iii) is a corporation—a related body
corporate of that corporation; and
(v) a director, officer, employee, agent, representative or security
holder of the general partner, of any partner in the general partner or of a
person covered by subparagraph (ii), (iii) or (iv); and
(b) of a limited partner, includes—
(i) if the limited partner is a partnership (including an external
partnership)—a partner in that partnership (a partner in the limited
partner); and
(ii) anyone who has an interest in the limited partner or in any partner
in the limited partner, whether as security holder, trustee, responsible entity,
manager, custodian, subcustodian, nominee, administrator, executor, legal
personal representative, beneficiary or otherwise; and
(iii) if the limited partner, a partner in the limited partner or a person
covered by subparagraph (ii) is a corporation—a related body corporate of
that corporation; and
(iv) a director, officer, employee, agent, representative or security
holder of the limited partner, of any partner in the limited partner or of a
person covered by subparagraph (ii) or (iii); and
(c) of an incorporated limited partnership, includes—
(i) any person or partnership (including an external partnership) in which
the incorporated limited partnership has an interest, whether as security holder
or otherwise; and
(ii) if a person or partnership (including an external partnership)
covered by subparagraph (i) is a corporation—a related corporation of that
corporation.
(2) In section 68 and this section:
general partner, in an incorporated limited partnership,
includes, if the general partner is a partnership (including an external
partnership), a partner in that partnership.
related body corporate—see the Corporations Act,
section 9 (Dictionary).
securities—see the Corporations Act, section 92 (3)
(Securities).
security holder, in relation to a body, includes a holder of
securities in or of the body.
70 Differences between partners
(1) A difference arising about ordinary matters connected with an
incorporated limited partnership’s business may be decided by a majority
of the general partners.
(2) The operation of this section may be varied with the partners’
consent.
71 Change in partners
(1) A limited partner in an incorporated limited partnership may, with the
general partners’ consent and the transferee’s agreement, transfer
all or part of the limited partner’s interest in the
partnership.
(2) If all of the limited partner’s interest in the incorporated
limited partnership is transferred to a single transferee, the transferee
becomes a limited partner in substitution for the transferor with all the rights
and obligations of the transferor.
(3) Subsection (4) applies if—
(a) only part of the interest of the limited partner (the
transferor) in the incorporated limited partnership is transferred
to a transferee; and
(b) the part of the interest that is transferred is (or includes) part of
the transferor’s legal interest in the partnership (whether or not the
part of the interest that is transferred also includes all or part of the
transferor’s beneficial interest in the partnership).
(4) If this subsection applies, the transferee becomes a limited partner
in substitution for the transferor in relation to the transferred part and with
all the rights and obligations of the transferor in relation to that
part.
(5) A person may be admitted as a partner in an incorporated limited
partnership without the consent of any limited partner.
(6) The operation of this section may be varied with the partners’
consent.
72 Change in status of partners
(1) If a general partner becomes a limited partner, the partner remains
liable for any liability of the incorporated limited partnership that arose
before the partner became a limited partner to the extent that the partnership
cannot satisfy the liability or to the greater extent provided by the
partnership agreement.
(2) If a limited partner becomes a general partner, the partner remains
not liable (subject to section 68 (2) and (3)) for any liability of the
incorporated limited partnership that arose before the partner became a general
partner.
Note Section 68 (2) and (3) imposes liability in certain
circumstances on a limited partner who takes part in the management of the
business of the incorporated limited
partnership.
73 Liability for conduct, acts or omissions outside
the ACT
A limited partner in an incorporated limited partnership may only be liable
for a liability incurred by the partnership because of either of the following
in circumstances where the limited partner would be liable if the conduct or
acts happened in the ACT:
(a) the conduct of the partnership’s business outside the
ACT;
(b) acts outside the ACT of a general partner, a limited partner, the
partnership or any officer, employee or agent of a general partner or the
partnership.
Note Section 68 (2) and (3) imposes liability in certain
circumstances on a limited partner who takes part in the management of the
business of the incorporated limited
partnership.
74 Incorporated limited partnerships formed under
corresponding laws
(1) A partner in a recognised incorporated limited partnership is liable
for a liability incurred by the partnership as a result of either of the
following, only in circumstances where the partner would be liable under the
corresponding law if the conduct, acts or omissions happened in the place where
the partnership was formed:
(a) the conduct of the partnership’s business in the ACT;
(b) the acts or omissions in the ACT of a partner in the partnership, the
partnership itself or any officer, employee, agent or representative of the
partner or partnership.
(2) The Minister may, in writing, declare a law of a State, another
Territory, foreign country or another jurisdiction to be a corresponding law for
this part.
(3) However, the Minister may declare a law of a State or another
Territory to be a corresponding law only if under that law a partner in an
incorporated limited partnership formed in accordance with this part and
registered or otherwise recognised under that law is liable for a liability
incurred by the partnership as a result of either of the following, only in
circumstances where the partner would be liable under this Act if the conduct,
acts or omissions happened in the ACT:
(a) the conduct in that State or Territory of the business of the
partnership;
(b) the acts or omissions in that State or Territory of a partner in the
partnership, the partnership itself or any officer, employee or agent of a
general partner or the partnership.
(4) Also, the Minister may declare a law of a foreign country or another
jurisdiction to be a corresponding law only if that law provides for the
limitation of liability of certain partners in certain partnerships.
(5) A declaration under subsection (2) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(6) This section is additional to any rule of law under which recognition
is or may be given to a limitation of liability of a partner in a
partnership.
(7) In this section:
corresponding law means—
(a) a law of a State, another Territory, foreign country or another
jurisdiction that substantially corresponds to the provisions of this Act
relating to incorporated limited partnerships; or
(b) a law declared under subsection (2) to be a corresponding law for this
part.
recognised incorporated limited partnership means a
partnership formed in accordance with a corresponding law.
75 Effect of s 73 and s 74
Section 73 or section 74 does not imply that a limited partner has any
liability (or apart from that section would have any liability) in connection
with the conduct of a partnership’s business, or acts or omissions outside
the ACT, that the limited partner would not have in connection with the conduct
of a partnership’s business or acts or omissions in the ACT.
Division 6.6 Winding-up of incorporated
limited partnership
76 Meaning of assets for div 6.6
In this division:
assets, of an incorporated limited partnership, means the
assets remaining after satisfaction of the partnership’s liabilities and
the costs, charges and expenses of the winding-up.
77 Voluntary winding-up
(1) An incorporated limited partnership may be wound up
voluntarily—
(a) if the partnership agreement sets out the terms on which the
partnership may voluntarily be wound up—in accordance with the partnership
agreement; or
(b) subject to the partnership agreement, if the limited partners resolve
to wind up the partnership by special resolution.
(2) On a voluntary winding-up of an incorporated limited
partnership—
(a) if the partnership agreement sets out how the assets are to be dealt
with on a voluntary winding-up—the assets must be dealt with in accordance
with the partnership agreement; or
(b) in any other case—the assets must be distributed among the
partners in shares that are proportionate to their respective contributions of
capital or property to the partnership.
(3) Any person aggrieved by the operation of this section in relation to
the assets of an incorporated limited partnership may apply to the Supreme
Court.
(4) On an application under subsection (3), the Supreme Court may make any
order relating to the disposal of the assets that it considers
appropriate.
78 Winding-up on commissioner’s certificate
(1) The commissioner for fair trading may, by written notice given to an
incorporated limited partnership, require the partnership to show good cause why
it should not be required to be wound up if the commissioner considers
that—
(a) the partnership has stopped carrying on business; or
(b) having been incorporated on the basis that the partnership is or is
intended to be either of the following, the partnership has stopped being, or
has not within the period of 2 years after its incorporation become, either of
the following:
(i) registered as a VCLP or AFOF under the Venture Capital Act 2002
(Cwlth), part 2 (Registration of venture capital limited partnerships and
Australian venture capital funds of funds);
(ii) a venture capital management partnership under the Income Tax
Assessment Act 1936 (Cwlth), section 94D (3) (Corporate limited
partnerships); or
(c) none of the partners is a limited partner; or
(d) incorporation of the partnership has been obtained by mistake or
fraud; or
(e) the partnership exists for an illegal purpose.
(2) If, at least 28 days after the day the notice is given under
subsection (1), the commissioner for fair trading is satisfied that the
incorporated limited partnership should be required to be wound up, the
commissioner may issue a certificate that the incorporated limited partnership
be wound up.
(3) The certificate is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) The commissioner for fair trading must give written notice of the
issue of the certificate to the incorporated limited partnership as soon as
possible after the issue.
(5) The commissioner for fair trading must record in the register that the
notice has been given as soon as possible after it is given.
(6) The commissioner for fair trading may issue a certificate under
subsection (2) only if satisfied that good cause has not been shown why the
incorporated limited partnership should not be required to be wound
up.
(7) A notice under subsection (1) or (4) must be given to the incorporated
limited partnership—
(a) by being served on the incorporated limited partnership at its
registered office; or
(b) if service cannot reasonably be made in accordance with paragraph
(a)—by being published in a newspaper circulating generally in the
ACT.
79 Review of certificate
(1) A person whose interests are affected by a decision of the
commissioner for fair trading to issue a certificate under
section 78 (2) may apply to the Supreme Court for review of the
decision.
(2) An application under subsection (1) must be made within 28 days after
the day the certificate is notified.
(3) The operation of the certificate is suspended until the application is
withdrawn or the review is decided.
(4) In deciding an application for review, the Supreme Court
may—
(a) confirm the decision under review; or
(b) set aside the decision under review and cancel the
certificate.
(5) This section does not prevent the commissioner for fair trading
cancelling a certificate under section 78 (2) at any time after an application
is made under subsection (1).
80 Procedure for winding-up on certificate
(1) This section applies if a certificate is issued under section 78 (2)
in relation to an incorporated limited partnership.
(2) The winding-up of the incorporated limited
partnership—
(a) must be begun—
(i) within 28 days after the day the certificate is notified, unless an
application is made under section 79 (1); or
(ii) if an application is made under section 79 (1) and the Supreme Court
confirms the decision to issue the certificate—within 28 days after the
day the application is decided; and
(b) must be finished by the day stated by the commissioner in a written
notice given to the partnership, that is a day at least 60 days after the day
the notice is given.
(3) At the beginning of the winding-up, the commissioner for fair trading
may appoint a person to be the liquidator of the incorporated limited
partnership.
(4) The liquidator may be a general partner in the incorporated limited
partnership and need not be a registered liquidator under the Corporations
Act.
(5) Within 10 days after the day the liquidator is appointed, the
liquidator must publish a notice of the liquidator’s appointment in a
newspaper circulating in the ACT.
(6) The liquidator must give the security that is prescribed under the
regulations (if any), and is entitled to receive the fees set by the
commissioner for fair trading.
(7) If the position of liquidator is vacant, the commissioner for fair
trading must appoint a person to fill the position.
(8) The reasonable costs of the winding-up are payable out of the property
of the incorporated limited partnership.
81 Distribution of assets on winding-up required on
commissioner’s certificate
(1) On the winding-up of an incorporated limited partnership under section
80—
(a) if the partnership agreement sets out how the assets are to be dealt
with on the winding-up—the assets must be dealt with in accordance with
the partnership agreement; or
(b) in any other case—the assets must be distributed among the
partners in shares that are proportionate to their respective contributions of
capital or property to the partnership.
(2) A person aggrieved by the operation of this section in relation to the
assets of an incorporated limited partnership may apply to the Supreme
Court.
(3) On an application under subsection (2), the Supreme Court may make any
order relating to the disposal of the assets that it considers
appropriate.
82 Displacement and application of Corporations
legislation etc
(1) The winding-up of an incorporated limited partnership is declared to
be an excluded matter for the purposes of the Corporations Act, section 5F in
relation to the Corporations Act, part 5.7 (Winding up bodies other than
companies).
Note The Corporations Act, s 5F provides that if a State or
Territory law declares a matter to be an excluded matter for the purposes of
that section in relation to all or part of the Corporations legislation of the
Commonwealth, the provisions that are the subject of the declaration will not
apply in relation to that matter in the State or Territory that made the
declaration.
(2) The Corporations Act, part 5.7 applies to an incorporated limited
partnership as if the partnership were a Part 5.7 body, subject to the following
changes:
(a) as if the words ‘or in the public interest’ were inserted
in section 583 (c) (ii) after the words ‘just and
equitable’;
(b) as if section 583 (d) did not form part of that section;
(c) any other necessary changes;
(c) any other changes prescribed under the regulations.
(3) The Australian Securities and Investments Commission may exercise a
function given to it under part 5.7 as changed under subsection
(2)—
(a) under an agreement or arrangement of the kind mentioned in the
Australian Securities and Investments Commission Act 2001 (Cwlth),
section 11 (8) or (9A) (b); and
(b) the commission is authorised to exercise that function under that Act,
section 11.
(4) Unless a function under part 5.7 as changed under subsection (2) is
given to the Australian Securities and Investments Commission as mentioned in
subsection (3), that part applies as if a reference in it to the commission were
a reference to the commissioner for fair trading.
(5) In this section:
Part 5.7 body—see the Corporations Act, section
9.
83 Commissioner to be told about winding-up
(1) An incorporated limited partnership must give the commissioner for
fair trading written notice of the beginning of the winding-up of the
partnership within 7 days after—
(a) the day a special resolution mentioned in section 77 (1) (b)
(Voluntary winding-up) is passed; or
(b) in any other case—the day the winding-up begins.
(2) An incorporated limited partnership must give the commissioner for
fair trading written notice of the finish of the winding-up of the partnership
within 7 days after the day the winding-up is finished, stating the date when
the winding-up was finished.
(3) The commissioner for fair trading must, as soon as practicable after
receiving a notice under subsection (1) or (2), record the receipt of the notice
in the register.
(4) Each general partner in the incorporated limited partnership commits
an offence if subsection (1) or (2) is not complied with.
Maximum penalty: 10 penalty units.
(5) It is a defence to a prosecution for an offence for failing to comply
with subsection (4) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(6) An offence against subsection (4) is a strict liability
offence.
84 Cancellation of incorporation
(1) The commissioner for fair trading must, by written notice, cancel the
incorporation of an incorporated limited partnership as soon as practicable
after the partnership is wound up.
(2) The notice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(3) The commissioner for fair trading must, as soon as practicable after
the notice is notified, record the cancellation of the incorporation in the
register.
(4) An incorporated limited partnership ceases to exist on the
cancellation of its incorporation under this part.
Division
6.7 Miscellaneous
85 Execution of documents
(1) An incorporated limited partnership may execute a document (including
a deed)—
(a) without using a common seal (whether it has one or not) if the
document is signed by a general partner; or
(b) as a deed if the document is expressed to be executed as a deed and is
executed with the use of a common seal or in accordance with paragraph
(a).
Note The Evidence Act 1995 (Cwlth), section 150 (1) (Seals
and signatures) provides for certain presumptions to be made about seals and
duly sealed documents. See also this Act, s 54 (2) on seals of incorporated
limited partnerships.
(2) This section does not limit the ways in which an incorporated limited
partnership may execute a document (including a deed).
86 Entitlement to make
assumptions
(1) A person is entitled to make the assumptions in section 87 in relation
to dealings with an incorporated limited partnership.
(2) The incorporated limited partnership is not entitled to assert in a
proceeding in relation to the dealings that any of the assumptions are
incorrect.
(3) A person is entitled to make the assumptions in section 87 in relation
to dealings with someone else who has, or purports to have, directly or
indirectly acquired title to property from an incorporated limited
partnership.
(4) The incorporated limited partnership and the other person are not
entitled to assert in a proceeding in relation to the dealings that any of the
assumptions are incorrect.
(5) The assumptions may be made even if a partner or agent of the
incorporated limited partnership acts fraudulently, or forges a document, in
relation to the dealings.
(6) A person is not entitled to make an assumption in section 87 if, at
the time of the dealings, the person knew or suspected that the assumption was
incorrect.
87 Assumptions that may be made under s 86
(1) A person may assume that the partnership agreement of the incorporated
limited partnership has been complied with.
(2) A person may assume that anyone who appears, from information provided
by the incorporated limited partnership that is available to the public from the
register, to be a general partner in the incorporated limited
partnership—
(a) is a general partner in the incorporated limited partnership;
and
(b) has authority to exercise the functions usually exercised by a general
partner in an incorporated limited partnership.
(3) A person may assume that anyone who is held out by the incorporated
limited partnership to be a general partner in, or an agent of, the incorporated
limited partnership—
(a) is a general partner in the incorporated limited partnership, or has
been properly appointed as an agent of the incorporated limited partnership;
and
(b) has authority to exercise the functions usually exercised by a general
partner in, or agent of, an incorporated limited partnership.
(4) A person may assume that the general partners in, and agents of, the
incorporated limited partnership properly exercise their functions in relation
to the incorporated limited partnership.
(5) A person may assume that a document has been properly executed by the
incorporated limited partnership if the document appears to have been signed in
accordance with section 85 (Execution of documents).
(6) A person may assume that a document has been properly executed by the
incorporated limited partnership if the incorporated limited partnership’s
common seal appears to have been properly attached to the document.
(7) A person may assume that a general partner in, or agent of, the
incorporated limited partnership who has authority to issue a document or
certified copy of a document on its behalf also has authority to warrant that
the document is genuine or is a true copy.
(8) Without limiting the generality of this section, the assumptions that
may be made under this section apply for this section.
88 Identification of incorporated limited
partnerships
(1) Any document issued on behalf of an incorporated limited partnership
in relation to the conduct of the partnership’s business must contain in
legible letters the term ‘An Incorporated Limited Partnership’ (or
‘L.P.’ or ‘LP’ as an abbreviation) at the end of the
partnership’s firm name as recorded in the register.
(2) A person commits an offence if the person issues or authorises the
issue of a document that does not comply with subsection (1).
Maximum penalty: 20 penalty units.
(3) A person commits an offence if—
(a) the person is a general partner in an incorporated limited
partnership; and
(b) a document that does not comply with subsection (1) is issued on
behalf of the partnership; and
(c) at the time the document is issued, the person knows the document does
not comply with subsection (1).
Maximum penalty: 50 penalty units.
(4) An offence against subsection (2) is a strict liability
offence.
(5) Strict liability applies to subsection (3) (a) and (b).
(6) In this section:
document includes any letter, notice, publication, written
offer, contract, order for goods or services, invoice, bill of exchange,
promissory note, cheque, other negotiable instrument, endorsement, letter of
credit, receipt and statement of account.
89 Display of certificate of
registration
(1) The certificate of registration of an incorporated limited partnership
must be displayed at all times in a conspicuous position at the registered
office of the partnership.
(2) Each general partner of an incorporated limited partnership commits an
offence if the certificate of registration of the partnership is not displayed
in accordance with subsection (1).
Maximum penalty: 20 penalty units.
(3) It is a defence to a prosecution for an offence for failing to comply
with subsection (2) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(4) An offence against subsection (2) is a strict liability
offence.
90 Registered office
(1) An incorporated limited partnership must keep in the ACT (at the place
shown in the register as the address of the registered office of the
partnership) an office to which all communications with the partnership may be
addressed.
(2) The regulations may prescribe the hours when the registered office
must be open to the public.
(3) Each general partner in the incorporated limited partnership commits
an offence if subsection (1) is not complied with.
Maximum penalty: 10 penalty units.
(4) It is a defence to a prosecution for an offence for failing to comply
with subsection (3) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(5) An offence against subsection (3) is a strict liability
offence.
91 Certain documents to be given to
commissioner
(1) An incorporated limited partnership that was incorporated on the basis
that it intended to apply for registration of the partnership as a VCLP or AFOF
under the Venture Capital Act 2002 (Cwlth), part 2 (Registration of
venture capital limited partnerships and Australian venture capital funds of
funds) must, within 1 month after being registered, give the commissioner for
fair trading a copy of a document proving its status as a VCLP or
AFOF.
(2) An incorporated limited partnership that was incorporated on the basis
that it intended to meet the requirements for recognition as a venture capital
management partnership under the Income Tax Assessment Act 1936 (Cwlth),
section 94D (3) (Corporate limited partnerships) must, within 1 month after
becoming that venture capital management partnership, give the commissioner for
fair trading a statement that it is that venture capital management
partnership.
(3) Subsection (4) applies if—
(a) the registration of an incorporated limited partnership as a VCLP or
AFOF under the Venture Capital Act 2002 (Cwlth), part 2 is revoked;
or
(b) an incorporated limited partnership ceases to be a venture capital
management partnership under the Income Tax Assessment Act 1936 (Cwlth),
section 94D (3).
(4) The incorporated limited partnership must, within 7 days after the day
the revocation took effect or it ceased to be that venture capital management
partnership, give the commissioner for fair trading written notice of the
revocation or cessation, stating the date it took effect.
(5) If an incorporated limited partnership ceases to carry on business,
the incorporated limited partnership must, as soon as practicable, give the
commissioner for fair trading written notice of the cessation, stating the date
it took effect.
Note 1 A fee may be determined under s 99 for this
provision.
Note 2 If a form is approved under s 100 for this provision, the
form must be used.
(6) A notice under this section must contain the information required by
the regulations.
(7) Each general partner in the incorporated limited partnership commits
an offence if subsection (1), (2), (4) or (5) is not complied with.
Maximum penalty: 10 penalty units.
(8) It is a defence to a prosecution for an offence for failing to comply
with subsection (7) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(9) An offence against subsection (7) is a strict liability
offence.
92 Service on incorporated limited
partnership
(1) A document concerning the business of an incorporated limited
partnership may be served on the partnership if it is left at, or sent by post
addressed to, the partnership’s registered office shown in the
register.
Note For how documents may be served, see Legislation Act,
pt 19.5.
(2) This section—
(a) does not affect any other way of serving a document on an incorporated
limited partnership; and
(b) does not apply to a document relating to a proceeding before a
court.
93 Entry in register constitutes
notice
An entry in the register of information about an incorporated limited
partnership, including an entry stating the effect of any notice received by the
commissioner for fair trading, is sufficient notice of the information, or of
the effect of the notice, to all people who deal with the partnership.
94 Duty to give information
(1) For monitoring compliance with this part, the commissioner for fair
trading may, by written notice given to an incorporated limited partnership,
require the partnership to give the commissioner the information mentioned in
the notice.
(2) The information must be given within the period stated in the notice
(that is at least 28 days after the day the notice is given to the incorporated
limited partnership) or any additional period allowed by the
commissioner.
(3) Each general partner in the incorporated limited partnership commits
an offence if subsection (2) is not complied with.
Maximum penalty: 50 penalty units.
(4) It is a defence to a prosecution for an offence for failing to comply
with subsection (3) if the general partner proves that—
(a) the general partner did not know about the failure; and
(b) reasonable precautions were taken and appropriate diligence was
exercised to avoid the failure.
(5) It is also a defence to a prosecution for an offence against
subsection (3) if the defendant proves that it was not within the power of
the incorporated limited partnership to give the information to the commissioner
for fair trading.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(6) An offence against subsection (3) is a strict liability
offence.
95 Secrecy
(1) In this section:
court includes a tribunal or other entity with power to
require the production of documents or the answering of questions.
person to whom this section applies means—
(a) the commissioner for fair trading; or
(b) anyone else employed or engaged in the administration of this
part.
produce includes allow access to.
protected information means information obtained under this
part by a person to whom this section applies because of the exercise of a
function under this part.
(2) A person commits an offence if—
(a) the person is a person to whom this section applies; and
(b) the person—
(i) makes a record of protected information; or
(ii) directly or indirectly, divulges or communicates protected
information to someone else; and
(c) the record is not made, or the information is not divulged or
communicated, in relation to the exercise of a function, as a person to whom
this section applies, under this Act or another Territory law.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) Subsection (2) does not prevent a person to whom this section
applies from divulging or communicating protected information—
(a) with the consent of the person from whom the information was obtained;
or
(b) to a law enforcement authority.
(4) A person to whom this section applies need not divulge or communicate
protected information to a court, or produce a document containing protected
information to a court, unless it is necessary to do so for this Act or another
Territory law.
96 Offences by partnerships
If this part provides that a general partner in an incorporated limited
partnership commits an offence, and the general partner is a partnership
(whether or not an external partnership), the reference to the general partner
is a reference to—
(a) each partner in the partnership (or external partnership);
or
(b) if the partnership (or external partnership) is a partnership in which
any partner has under the law of the place where it is formed limited liability
for the liabilities of the partnership—each partner in the partnership
whose liability is not limited.
97 Delegation by commissioner
The commissioner for fair trading may delegate the commissioner’s
functions under this part to a public servant.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act, pt 19.4.
98 Relationship with Corporations legislation
The regulations may declare a matter that is dealt with by this Act to be
an excluded matter for the Corporations Act, section 5F (Corporations
legislation does not apply to matters declared by State or Territory law to be
an excluded matter) in relation to—
(a) the whole of the Corporations legislation to which the Corporations
Act, part 1.1A (Interaction between Corporations Legislation and State and
Territory laws) applies; or
(b) a stated provision of that legislation; or
(c) that legislation other than a stated provision; or
(d) that legislation otherwise than to a stated extent.
Note Section 5F of the Corporations Act provides that if a
State or Territory law declares a matter to be an excluded matter for the
purposes of that section in relation to all or part of the Corporations
legislation of the Commonwealth, then the provisions that are the subject of the
declaration will not apply in relation to that matter in the State or Territory
that made the declaration.
Part 7 Miscellaneous
99 Determination of fees
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
100 Approved forms
(1) The commissioner for fair trading may, in writing, approve forms for
this Act.
Note For other provisions about forms, see Legislation Act, s
255.
(2) If the commissioner approves a form for a particular purpose, the
approved form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
101 Regulation-making power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may deal with the following:
(a) the keeping of records by an incorporated limited
partnership;
(b) information or copies of records or documents required to be given to
the commissioner for fair trading by an incorporated limited
partnership.
(3) The regulations may exempt, or provide for the exemption of, any
person, matter or thing from this Act.
(4) The regulations may make provision about a matter by applying,
adopting or incorporating (with or without change) a standard, or a provision of
a standard, as in force from time to time.
(5) The Legislation Act, section 47 (6) does not apply in relation to an
Australian Standard, or an Australian/New Zealand Standard, applied, adopted or
incorporated under the regulations.
(6) The regulations may create offences for contraventions of the
regulations and fix maximum penalties of not more than 10 penalty units for
offences against the regulations.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• commissioner for fair trading
• exercise
• function
• notifiable instrument
• property
• public servant
• registrar-general
• under.
assets, for division 6.6 (Winding-up of incorporated limited
partnership)—see section 76.
business includes a trade, occupation or
profession.
external partnership—see section 51.
firm means—
(a) for a partnership other than an incorporated limited
partnership—the collective name for the people who have entered the
partnership with one another; and
(b) for an incorporated limited partnership—the partnership as a
separate legal entity and not the partners in the partnership.
firm name—
(a) for a firm other than an incorporated limited partnership—means
the name under which the firm’s business is carried on; and
(b) for an incorporated limited partnership—see section 51;
and
(c) for an external partnership—see section 51.
general partner—see section 51.
incorporated limited partnership—see section
51.
liability, for part 6 (Incorporated limited
partnerships)—see section 51.
limited partner, for part 6 (Incorporated limited
partnerships)—see section 51.
partner, for an incorporated limited partnership—see
section 51.
partnership—see section 6.
partnership property—
(a) of a firm other than an incorporated limited partnership—see
section 24; and
(b) of an incorporated limited partnership—see section
24A.
register, for part 6 (Incorporated limited
partnerships)—see section 60.
special resolution, for part 6 (Incorporated limited
partnerships)—see section 51.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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