New South Wales Consolidated Acts New South Wales Consolidated ActsIn this Schedule--
"assets" of an incorporated limited partnership means the assets remaining
after satisfaction of the liabilities of the partnership and the costs,
charges and expenses of the winding up.
"special resolution" of the limited partners in an
incorporated limited partnership means a resolution that has been passed by at
least 75% of the limited partners.
(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 so resolve 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 are to 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 clause in relation to the assets of an incorporated limited partnership may apply to the Supreme Court.
(4) On an application under subclause (3), the Supreme Court may make any order relating to the disposal of the assets that it thinks fit.
(1) The Registrar may, by notice, require an incorporated limited partnership to show good cause why it should not be required to be wound up if the Registrar is of the opinion--(a) that the partnership has ceased to carry on business, or(b) that none of the partners is a limited partner, or(c) that incorporation of the partnership has been obtained by mistake or fraud, or(d) that the partnership exists for an illegal purpose.
(2) If, on the expiration of 28 days after the notice is given under subclause (1), the Registrar is satisfied that the incorporated limited partnership should be required to be wound up, the Registrar may publish in the Gazette a certificate as to the requirement that the incorporated limited partnership be wound up.
(3) The Registrar may publish in the Gazette a certificate requiring an incorporated limited partnership to be wound up if the Registrar is satisfied (whether by a notice under section 73E (3) or otherwise) that, having been incorporated on the basis that the partnership is or is intended to be--(a) registered as a VCLP, AFOF or ESVCLP under Part 2 of the Venture Capital Act 2002 of the Commonwealth, or(b) a venture capital management partnership within the meaning of section 94D (3) of the Income Tax Assessment Act 1936 of the Commonwealth,the partnership's registration has been revoked, or it has not within the period of 2 years after its incorporation become so registered or it has ceased to meet, or has not in the period of 2 years after its incorporation met, the requirements set out in section 94D (3) for recognition as such a venture capital management partnership.
(4) The Registrar must not publish a certificate under subclause (2) or (3) unless satisfied that good cause has not been shown why the incorporated limited partnership should not be required to be wound up.
(5) The Registrar must give notice of the publication under subclause (2) or (3) of a certificate to the incorporated limited partnership as soon as possible after the publication.
(6) The Registrar must as soon as practicable after giving a notice to an incorporated limited partnership, record the giving of the notice in the Register.
(7) A notice under subclause (1) or (5) 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 effected, by being published in a newspaper circulating generally in the State.
(1) A person whose interests are affected by a decision of the Registrar to publish a certificate under clause 3 may apply to the Supreme Court for review of the decision.
(2) An application under subclause (1) must be made within 28 days after the certificate is published.
(3) The decision is suspended on the making of an application for review until the application is withdrawn or the review is determined.
(4) In determining an application for review, the Supreme Court may--(a) affirm the decision under review, or(b) set aside the decision under review and require the Registrar to cancel the certificate.
(5) Nothing in this clause prevents the Registrar cancelling a certificate published under clause 3 at any time after an application is made under subclause (1).
(1) If the Registrar has published, and has not cancelled or been required under clause 4 (4) (b) to cancel, a certificate under clause 3 that an incorporated limited partnership is required to be wound up, the winding up--(a) must be commenced--(i) no later than the end of 28 days after the day on which the certificate is published unless an application is made under clause 4, or(ii) if an application is made under clause 4 and the Supreme Court affirms the decision to publish the certificate, no later than 28 days after the day on which the application is determined, and(b) must be completed by the day specified by the Registrar in a notice given to the partnership, not being a day earlier than 60 days after the day on which the winding up must be so commenced.
(2) On the commencement of the winding up, the Registrar may appoint a person to be the liquidator of the incorporated limited partnership.
(3) The liquidator may be a general partner in the incorporated limited partnership, an associate of the general partner (within the meaning of section 67B) or any other person and need not be a registered liquidator under the Corporations Act 2001 of the Commonwealth.
(4) The liquidator must within 10 days of being appointed give notice of his or her appointment in the Gazette.
(5) The liquidator must give such security as may be prescribed and is entitled to receive such fees as are fixed by the Registrar.
(6) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Registrar.
(7) The reasonable costs of a winding up required on a certificate of the Registrar under clause 3 are payable out of the property of the incorporated limited partnership.
(1) On a winding up of an incorporated limited partnership required on a certificate of the Registrar under clause 3--(a) if the partnership agreement sets out how the assets are to be dealt with on such a winding up, the assets must be dealt with in accordance with the partnership agreement, or(b) in any other case, the assets are to be distributed among the partners in shares that are proportionate to their respective contributions of capital or property to the partnership.
(2) Any person aggrieved by the operation of this clause in relation to the assets of an incorporated limited partnership may apply to the Supreme Court.
(3) On an application under subclause (2), the Supreme Court may make any order relating to the disposal of the assets that it thinks fit.
(1) The winding up of an incorporated limited partnership (other than a voluntary winding up or a winding up required on a certificate of the Registrar under clause 3) is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.7 (Winding up bodies other than companies) of the Corporations Act 2001 of the Commonwealth and that Part applies as if the incorporated limited partnership were a Part 5.7 body within the meaning of that Act, subject to the following modifications--(a) as if the words "or in the public interest" were inserted in paragraph (c) (ii) of section 583 after the words "just and equitable",(b) as if paragraph (d) of section 583 did not form part of that section,(c) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001 ) that are prescribed by the regulations.Note : Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. This does not apply to any provisions that already apply to a matter as a law of the Commonwealth.
(2) The Australian Securities and Investments Commission may perform a function conferred on it under a law applied by subclause (1)--(a) pursuant to an agreement or arrangement of the kind referred to in section 11 (8) or (9A) (b) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and(b) the Commission is authorised to perform that function under section 11 of that Act.
(3) Unless a function under a law applied by subclause (1) is conferred on the Australian Securities and Investments Commission as referred to in subclause (2), that law applies as if a reference in it to the Commission were a reference to the Registrar.
(1) An incorporated limited partnership must lodge with the Registrar a notice of the commencement of the winding up of the partnership within 7 days after--(a) the passing of a special resolution referred to in clause 2 (1) (b), or(b) in any other case, the commencement of the winding up.
(2) An incorporated limited partnership must lodge with the Registrar a notice of the completion of the winding up of the partnership within 7 days after that completion, specifying the date on which the winding up was completed.
(3) The Registrar must, as soon as practicable after receiving a notice under subclause (1) or (2), record the receipt of the notice in the Register.
(4) If subclause (1) or (2) is not complied with, each general partner of the incorporated limited partnership is guilty of an offence.: Maximum penalty--10 penalty units.
(1) The Registrar must, by notice published in the Gazette, cancel the incorporation of an incorporated limited partnership as soon as practicable after the partnership is wound up.
(2) The Registrar must, as soon as practicable after the publication of a notice under subclause (1), record the cancellation of the incorporation in the Register.
(3) An incorporated limited partnership ceases to exist on the cancellation of its incorporation under this Schedule.