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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Limited Partnerships Bill 2016 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Term used: associate 6 5. Term used: partnership 7 Part 2 -- Application of laws of partnership 6. Application of Partnership Act to limited partnership 9 7. Application of general law to incorporated limited partnership 10 8. Application of Partnership Act to incorporated limited partnership 10 9. Application of Partnership Act to incorporated limited partnership: modifications 11 Part 3 -- Limited partnerships Division 1 -- Nature, formation and membership 10. Formation of limited partnership 16 11. Composition of limited partnership 16 12. Change in membership of limited partnership 17 13. Differences between partners 17 Division 2 -- Management 14. Limited partner must not take part in management of limited partnership 17 15. When does limited partner take part in management? 18 217--1 page i Limited Partnerships Bill 2016 Contents Division 3 -- Registration 16. Application for registration 19 17. Registration 21 Division 4 -- Liability of partner 18. Limitation of liability of limited partner 22 19. Change in liability of limited partner 22 20. Effect on liability of change in status of partner 23 21. Liability for business conducted outside State 23 22. Liability under corresponding law 23 23. Effect of sections 21 and 22 23 24. Limitation of liability provisions cannot be varied 24 Division 5 -- Dissolution, cessation and winding up 25. Dissolution generally 24 26. Dissolution on grounds of mental disability 24 27. Cessation 25 28. Notice of dissolution or cessation 25 29. No notice of dissolution or cessation 26 30. Winding up 27 Division 6 -- Cancellation of registration 31. Cancellation of registration on dissolution or cessation 27 32. Cancellation of registration on incorporation 27 33. Notice of cancellation 28 34. Effect of cancellation 28 Part 4 -- Incorporated limited partnerships Division 1 -- Nature, formation and membership 35. Nature of incorporated limited partnerships 29 36. Formation of incorporated limited partnerships 30 37. Composition of incorporated limited partnerships 30 38. Change in membership 31 39. Differences between partners 31 40. Agents 32 41. Partnership agreement 33 page ii Limited Partnerships Bill 2016 Contents Division 2 -- Management 42. Limited partner must not take part in management of incorporated limited partnership 33 43. When does limited partner take part in management? 34 44. Proposals to which section 43(1)(k)(i) applies 37 Division 3 -- Registration 45. Application for registration 38 46. Registration 40 Division 4 -- Lodgment of documents relating to registration 47. Evidence of status: on registration 41 48. Evidence of status: after registration 42 Division 5 -- Liability of partner 49. Limitation of liability of limited partner 43 50. Effect on liability of change in status of partner 44 51. Liability for business conducted outside State 44 52. Liability under corresponding law 44 53. Effect of sections 51 and 52 45 Division 6 -- Winding up Subdivision 1 -- Voluntary winding up 54. Voluntary winding up 45 Subdivision 2 -- Winding up required by Commissioner 55. Grounds for winding up required by Commissioner 46 56. Commissioner may require incorporated limited partnership to show cause 47 57. How incorporated limited partnership may show cause 48 58. Commissioner may give winding up notice where cause not shown 48 59. Commissioner must record in register where cause shown 48 60. Power to cancel winding up notice given in error 48 61. Notices must be recorded in register 49 62. Commencement and completion of winding up 49 63. Costs of winding up 50 64. Appointment of liquidator 50 65. Distribution of assets on winding up 51 page iii Limited Partnerships Bill 2016 Contents Subdivision 3 -- Winding up under Corporations Act 66. Application of Corporations Act to winding up 51 Subdivision 4 -- Winding up generally 67. Notice of winding up 52 68. No notice of winding up 53 Division 7 -- Cancellation of registration 69. Cancellation of registration on winding up 54 70. Notice of cancellation 55 71. Effect of cancellation 55 Division 8 -- Miscellaneous 72. Entitlement to make assumptions 55 73. Assumptions that can be made 56 74. Common seal 57 75. Execution 57 76. Enforcing judgments 58 77. Proper party to proceeding 58 Part 5 -- General Division 1 -- Register and registration 78. Register 59 79. Power to make or correct certain entries in register 59 80. Reinstatement of registration 60 81. Entry in register constitutes notice 61 Division 2 -- Certificates of registration 82. Certificate of registration to be issued 61 83. Certificate of registration to be displayed 62 Division 3 -- Change in registered particulars 84. Notice of change in registered particulars 63 85. Change in agreed contribution of limited partner 64 86. Register to record change in registered particulars 64 Division 4 -- Restrictions on members 87. Terms used 64 88. Restrictions on insolvents 65 89. Restrictions on convicted persons 65 90. Restrictions on disqualified persons 66 91. Contravention does not affect liability 67 92. Leave of Commissioner 67 93. Revoking leave of Commissioner 68 page iv Limited Partnerships Bill 2016 Contents Division 5 -- Reviews 94. Terms used 68 95. Reviewable decisions 68 96. Review of reviewable decisions 70 Division 6 -- Offences 97. Giving false or misleading information 70 98. Offences by partnership 70 99. Time for bringing proceedings for offences 71 Division 7 -- Miscellaneous 100. How notices may be given 71 101. How consent may be given 71 102. Registered office 72 103. Service 72 104. Lodgment of documents 73 105. Signing of documents 73 106. Business documents 74 107. Inspection of accounts and financial records 75 Division 8 -- Application of other written laws 108. Application of Fair Trading Act 76 109. Application of Criminal Procedure Act 2004 77 Division 9 -- Regulations and orders 110. Regulations 77 111. Regulations prescribing model limited partnership agreement 78 112. Regulations relating to Corporations Act 78 113. Orders declaring corresponding law 79 Part 6 -- Repeals and transitional matters 114. Terms used 80 115. Written laws repealed 80 116. Existing limited partnerships 80 117. Existing register 82 118. Existing statements 82 119. Time limit under section 99 83 120. Leave taken to have been granted under section 92(4) 83 121. Transitional regulations 84 page v Limited Partnerships Bill 2016 Contents Part 7 -- Partnership Act 1895 amended 122. Partnership Act 1895 amended 86 Defined terms page vi Western Australia LEGISLATIVE COUNCIL Limited Partnerships Bill 2016 A Bill for An Act to -- • provide for the formation and registration of limited partnerships and incorporated limited partnerships; and • repeal the Limited Partnerships Act 1909; and • make consequential amendments to the Partnership Act 1895, and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Limited Partnerships Bill 2016 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Limited Partnerships Act 2016. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Terms used 11 In this Act, unless the contrary intention appears -- 12 AFOF has the meaning given in the Income Tax Assessment 13 Act section 995-1; 14 agreed contribution, in relation to a limited partner or a 15 proposed limited partner, means the amount of any capital, or 16 the value of any property, that the partner has agreed to 17 contribute to the partnership; 18 assets, in relation to the winding up of an incorporated limited 19 partnership, means the assets remaining after satisfaction of the 20 liabilities of the partnership and the costs, charges and expenses 21 of the winding up; 22 associate has a meaning affected by section 4; 23 authorised person means -- 24 (a) the Commissioner; and 25 (b) an investigator designated under the Fair Trading Act 26 section 64 as applied by section 108(1) of this Act; 27 business has the meaning given in the Partnership Act section 3; 28 Business Names Registration Act means the Business Names 29 Registration Act 2011 (Commonwealth); page 2 Limited Partnerships Bill 2016 Preliminary Part 1 s. 3 1 Commissioner has the meaning given in the Fair Trading Act 2 section 6; 3 Corporations Act means the Corporations Act 2001 4 (Commonwealth); 5 corresponding law means -- 6 (a) in relation to a limited partnership -- a law of another 7 State, a Territory or another country or jurisdiction that 8 is declared under section 113(1) to be a corresponding 9 law in relation to limited partnerships for the purposes 10 of this Act; or 11 (b) in relation to an incorporated limited partnership -- a 12 law of another State, a Territory or another country or 13 jurisdiction that -- 14 (i) is declared under section 113(1) to be a 15 corresponding law in relation to incorporated 16 limited partnerships for the purposes of this Act; 17 or 18 (ii) substantially corresponds to the provisions of this 19 Act that relate to incorporated limited 20 partnerships; 21 court has the meaning given in the Partnership Act section 3; 22 ESVCLP has the meaning given in the Income Tax Assessment 23 Act section 995-1; 24 external partnership means a partnership (or legal entity, 25 however described, in the nature of a partnership) formed under 26 a law of another State, a Territory or another country or 27 jurisdiction, whether or not under that law -- 28 (a) the liability of any partner for the liabilities of the 29 partnership is limited; or 30 (b) the partnership is incorporated or is otherwise a separate 31 legal entity; 32 Fair Trading Act means the Fair Trading Act 2010; page 3 Limited Partnerships Bill 2016 Part 1 Preliminary s. 3 1 firm name -- 2 (a) of a limited partnership or incorporated limited 3 partnership -- means the name of the partnership 4 recorded in the register; or 5 (b) of an external partnership -- means the name under 6 which, under the law of the place in which it is formed, 7 the partnership carries on the business of the 8 partnership; or 9 (c) of any other partnership -- means a firm-name as 10 defined in the Partnership Act section 10; 11 general partner -- 12 (a) in relation to a limited partnership -- means a partner 13 who, at the relevant time, is recorded in the register as 14 being a general partner in the partnership; and 15 (b) in relation to an incorporated limited partnership -- 16 (i) means a partner who, at the relevant time, is 17 recorded in the register as being a general partner 18 in the partnership; and 19 (ii) includes, if the general partner is a partnership, a 20 reference to a partner in that partnership; 21 Income Tax Assessment Act means the Income Tax Assessment 22 Act 1997 (Commonwealth); 23 incorporated limited partnership means an incorporated limited 24 partnership that is registered under this Act; 25 liability means a debt, obligation or other liability of any kind, 26 wherever and however incurred; 27 limited partner, in relation to a limited partnership or 28 incorporated limited partnership, means a partner who, at the 29 relevant time, is recorded in the register as being a limited 30 partner in the partnership; 31 limited partnership means a limited partnership that is 32 registered under this Act; page 4 Limited Partnerships Bill 2016 Preliminary Part 1 s. 3 1 partner, in a limited partnership or incorporated limited 2 partnership, means a general partner or a limited partner; 3 partnership has a meaning affected by section 5; 4 Partnership Act means the Partnership Act 1895; 5 person means an individual, body corporate or partnership 6 (including an external partnership); 7 prescribed means prescribed by the regulations made under this 8 Act; 9 register means the register of limited partnerships and 10 incorporated limited partnerships kept under section 78(1); 11 registered office, in relation to a limited partnership or 12 incorporated limited partnership, means the place recorded in 13 the register as the address of the principal office in this State of 14 the partnership; 15 registered particulars, in relation to a limited partnership or 16 incorporated limited partnership, means the particulars recorded 17 in the register relating to the limited partnership or incorporated 18 limited partnership and the partners in that partnership; 19 related body corporate has the meaning given in the 20 Corporations Act section 9; 21 securities has the meaning given in the Corporations Act 22 section 9; 23 security holder, in relation to a body (whether incorporated or 24 unincorporated), includes a holder of securities in or of the 25 body; 26 show cause notice means a notice given to an incorporated 27 limited partnership under section 56; 28 VCLP has the meaning given in the Income Tax Assessment 29 Act section 995-1; 30 VCMP has the meaning given in the Income Tax Assessment 31 Act section 995-1; 32 winding up notice means a notice given to an incorporated 33 limited partnership under section 58. page 5 Limited Partnerships Bill 2016 Part 1 Preliminary s. 4 1 4. Term used: associate 2 For the purposes of this Act -- 3 associate -- 4 (a) in relation to a general partner, includes -- 5 (i) if the general partner is a partnership or 6 incorporated limited partnership -- a partner in 7 that partnership (partner in the general partner); 8 and 9 (ii) any person who has an interest in the general 10 partner or in any partner in the general partner, 11 whether as security holder, trustee, responsible 12 entity, manager, custodian, sub-custodian, 13 nominee, administrator, executor, legal personal 14 representative, beneficiary or otherwise; and 15 (iii) any person to whom the general partner or any 16 partner in the general partner has delegated any 17 power, authority, right, duty or obligation of the 18 general partner in relation to any partnership or 19 incorporated limited partnership in which the 20 partner is a general partner; and 21 (iv) if the general partner or a partner in the general 22 partner or a person covered by subparagraph (ii) 23 or (iii) is a body corporate -- a related body 24 corporate of that body corporate; and 25 (v) a director, officer, employee, agent, 26 representative or security holder of the general 27 partner or of any partner in the general partner or 28 of a person covered by subparagraph (ii), (iii) 29 or (iv); 30 and page 6 Limited Partnerships Bill 2016 Preliminary Part 1 s. 5 1 (b) in relation to a limited partner, includes -- 2 (i) if the limited partner is a partnership or 3 incorporated limited partnership -- a partner in 4 that partnership (partner in the limited partner); 5 and 6 (ii) any person who has an interest in the limited 7 partner or in any partner in the limited partner, 8 whether as security holder, trustee, responsible 9 entity, manager, custodian, sub-custodian, 10 nominee, administrator, executor, legal personal 11 representative, beneficiary or otherwise; and 12 (iii) if the limited partner or a partner in the limited 13 partner or a person covered by subparagraph (ii) 14 is a body corporate -- a related body corporate 15 of that body corporate; and 16 (iv) a director, officer, employee, agent, 17 representative or security holder of the limited 18 partner or of any partner in the limited partner or 19 of a person covered by subparagraph (ii) or (iii); 20 and 21 (c) in relation to an incorporated limited partnership, 22 includes -- 23 (i) any body corporate in which the incorporated 24 limited partnership has an interest, whether as 25 security holder or otherwise, and any related 26 body corporate of that body corporate; and 27 (ii) any partnership in which the incorporated limited 28 partnership has an interest, whether as security 29 holder or otherwise. 30 5. Term used: partnership 31 (1) For the purposes of this Act -- 32 partnership means a partnership as defined in the Partnership 33 Act. page 7 Limited Partnerships Bill 2016 Part 1 Preliminary s. 5 1 (2) Any act done in connection with the making of an application 2 for registration under Part 3 or 4 by or on behalf of persons 3 proposing to be the partners in a proposed limited partnership or 4 incorporated limited partnership does not of itself create a 5 partnership between those persons. page 8 Limited Partnerships Bill 2016 Application of laws of partnership Part 2 s. 6 1 Part 2 -- Application of laws of partnership 2 6. Application of Partnership Act to limited partnership 3 (1) Subject to subsection (4) and any express provision of this Act, 4 the Partnership Act (other than sections 10 to 12) applies to a 5 limited partnership with the modifications set out in this section. 6 (2) For the purposes of subsection (1), these provisions of the 7 Partnership Act apply as follows -- 8 (a) section 22(1) does not apply to an admission or 9 representation made by a limited partner; 10 (b) section 23 does not apply to notice given to a limited 11 partner; 12 (c) section 26 does not apply to an act of a limited partner; 13 (d) section 27 does not apply to a limited partner. 14 (3) For the purposes of subsection (1), the Partnership Act is to be 15 read as if -- 16 (a) a reference in that Act to a partnership or a firm were a 17 reference to a limited partnership as defined in section 3; 18 and 19 (b) subject to paragraph (e), a reference in that Act to a 20 partner were a reference to a partner as defined in 21 section 3; and 22 (c) a reference in that Act to a firm-name were a reference 23 to a firm name as defined in section 3; and 24 (d) a reference in section 16 or 24(2) of that Act to debts 25 and obligations were a reference to liability as defined in 26 section 3; and 27 (e) a reference in section 21(1) or 24(1) of that Act to a 28 partner were a reference to a general partner as defined 29 in section 3. page 9 Limited Partnerships Bill 2016 Part 2 Application of laws of partnership s. 7 1 (4) If a provision of this Act relating to a limited partnership is 2 inconsistent with a provision of the Partnership Act -- 3 (a) the provision of this Act prevails; and 4 (b) the other provision does not, to the extent of the 5 inconsistency, have effect in relation to a limited 6 partnership. 7 7. Application of general law to incorporated limited 8 partnership 9 (1) In this section -- 10 general law means the principles and rules of common law and 11 equity to the extent that they have effect in the State from time 12 to time. 13 (2) Each of the following is not a partnership for the purposes of the 14 general law -- 15 (a) an incorporated limited partnership; 16 (b) the relationship between the partners in an incorporated 17 limited partnership; 18 (c) the relationship between an incorporated limited 19 partnership and its partners. 20 8. Application of Partnership Act to incorporated limited 21 partnership 22 (1) Subject to subsection (3) and any express provision of this Act, 23 the Partnership Act (other than sections 10 to 12, 25, 28, 30(2) 24 and (3), 32 to 34, 37, 38 and 40 to 57) applies to an incorporated 25 limited partnership with the modifications set out in section 9. 26 (2) For the purposes of subsection (1), these provisions of the 27 Partnership Act apply as follows -- 28 (a) section 13(1) does not apply to an act done or instrument 29 executed by a limited partner; 30 (b) sections 16, 19 and 27 do not apply to a limited partner; page 10 Limited Partnerships Bill 2016 Application of laws of partnership Part 2 s. 9 1 (c) section 18(1) does not apply where money or property is 2 misapplied by a limited partner; 3 (d) section 22(1) does not apply to an admission or 4 representation made by a limited partner; 5 (e) section 23 does not apply to notice given to a limited 6 partner; 7 (f) section 26 does not apply to an act of a limited partner. 8 (3) If a provision of this Act relating to an incorporated limited 9 partnership is inconsistent with a provision of the Partnership 10 Act -- 11 (a) the provision of this Act prevails; and 12 (b) the other provision does not, to the extent of the 13 inconsistency, have effect in relation to an incorporated 14 limited partnership. 15 9. Application of Partnership Act to incorporated limited 16 partnership: modifications 17 For the purposes of section 8(1), the Partnership Act is to be 18 read as if -- 19 (a) a reference in that Act to a partnership or a firm were a 20 reference to an incorporated limited partnership as 21 defined in section 3 as a separate legal entity and not to 22 the partners in that partnership; and 23 (b) subject to paragraphs (d), (e), (i)(i), (k), (n) and (o)(i), a 24 reference in that Act to a partner were a reference to a 25 partner as defined in section 3; and 26 (c) a reference in that Act to a firm-name were a reference 27 to a firm name as defined in section 3; and 28 (d) a reference in section 13(1) of that Act to all the partners 29 were a reference to all the general partners as defined in 30 section 3; and 31 (e) in section 14 of that Act the words "one partner" were 32 deleted and replaced with "one general partner"; and page 11 Limited Partnerships Bill 2016 Part 2 Application of laws of partnership s. 9 1 (f) in section 16 of that Act the word "Every" were deleted 2 and replaced with -- 3 4 (1) Every 5 6 and 7 (g) in section 16 of that Act -- 8 (i) a reference to the other partners in a partnership 9 were a reference to the incorporated limited 10 partnership as defined in section 3; and 11 (ii) a reference to debts and obligations were a 12 reference to liabilities as defined in section 3; 13 and 14 (h) at the end of section 16 of that Act the following 15 subsection were inserted -- 16 17 (2) Despite subsection (1), a general partner in an 18 incorporated limited partnership is only liable for any 19 liabilities of the incorporated limited partnership -- 20 (a) to the extent the incorporated limited 21 partnership is unable to satisfy the liabilities; 22 or 23 (b) to a greater extent provided by the partnership 24 agreement. 25 26 and 27 (i) in section 17 of that Act -- 28 (i) a reference to partner (other than the 29 2nd occurrence) were a reference to general 30 partner as defined in section 3; and page 12 Limited Partnerships Bill 2016 Application of laws of partnership Part 2 s. 9 1 (ii) the words "the authority of his copartners" and 2 "the authority of the partner's copartners" were 3 deleted and replaced with "its authority"; and 4 (iii) in subsection (2)(a) the words "partner's 5 copartners, or some of them," were deleted and 6 replaced with "incorporated limited partnership"; 7 and 8 (iv) in subsection (2)(c) the words "any copartner" 9 were deleted and replaced with "any other 10 general partner in the incorporated limited 11 partnership"; 12 and 13 (j) in section 19 of that Act the word "Every" were deleted 14 and replaced with -- 15 16 (1) Every 17 18 and 19 (k) in section 19 of that Act a reference to partner were a 20 reference to general partner as defined in section 3; and 21 (l) at the end of section 19 of that Act the following 22 subsection were inserted -- 23 24 (2) Despite subsection (1), a general partner in an 25 incorporated limited partnership is only liable for any 26 liabilities of the incorporated limited partnership -- 27 (a) to the extent the incorporated limited 28 partnership is unable to satisfy the liabilities; 29 or 30 (b) to a greater extent provided by the partnership 31 agreement. 32 33 and page 13 Limited Partnerships Bill 2016 Part 2 Application of laws of partnership s. 9 1 (m) section 20 of that Act were deleted and replaced with the 2 following -- 3 4 20. Improper employment of trust property 5 (1) If a general partner in an incorporated limited 6 partnership being a trustee improperly employs trust 7 property in the business or on account of the 8 partnership, neither the partnership nor any other 9 general partner is liable for the trust property to the 10 persons beneficially interested in it. 11 (2) Subsection (1) -- 12 (a) does not affect any liability incurred by any 13 general partner by reason of the partner's 14 having notice of a breach of trust; and 15 (b) does not prevent trust money from being 16 followed and recovered from the incorporated 17 limited partnership if still in its possession or 18 under its control. 19 20 and 21 (n) in section 21(1) of that Act a reference to partner were a 22 reference to general partner as defined in section 3; and 23 (o) in section 24 of that Act -- 24 (i) a reference in subsection (1) to a partner were a 25 reference to a general partner as defined in 26 section 3; and 27 (ii) a reference in subsection (2) to debts or 28 obligations were a reference to the liabilities as 29 defined in section 3; and 30 (iii) the words "as newly constituted" were deleted 31 from subsection (3); 32 and page 14 Limited Partnerships Bill 2016 Application of laws of partnership Part 2 s. 9 1 (p) in section 30(1) of that Act a reference to the partners 2 were a reference to the incorporated limited partnership 3 as defined in section 3; and 4 (q) at the end of section 30 of that Act the following 5 subsection were inserted -- 6 7 (4) No partner in an incorporated limited partnership, by 8 virtue only of being a partner in the partnership, has 9 any legal or beneficial interest in its partnership 10 property. 11 12 and 13 (r) in section 39 of that Act the words "Partners are" were 14 deleted and replaced with "An incorporated limited 15 partnership is". page 15 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 1 Nature, formation and membership s. 10 1 Part 3 -- Limited partnerships 2 Division 1 -- Nature, formation and membership 3 10. Formation of limited partnership 4 A limited partnership is formed by and on registration under this 5 Act as a limited partnership. 6 11. Composition of limited partnership 7 (1) A limited partnership must have -- 8 (a) at least one general partner; and 9 (b) at least one limited partner. 10 (2) A limited partnership may have any number of limited partners. 11 (3) A limited partnership must not have -- 12 (a) more than 20 general partners; or 13 (b) if the partnership is of a particular kind in relation to 14 which a higher number applies under the Corporations 15 Act section 115(2) -- more general partners than that 16 higher number. 17 (4) A person may be a general partner or a limited partner in a 18 limited partnership. 19 (5) For the purposes of subsection (3), if a general partner is a 20 partnership (including an external partnership), the general 21 partner is to be counted as follows -- 22 (a) if, under the law of the place where the partnership is 23 formed, no partner in the partnership has limited liability 24 for the liabilities of the partnership -- each partner in 25 the partnership is to be counted in place of the general 26 partner; 27 (b) if, under the law of the place where the partnership is 28 formed, any partner in the partnership has limited 29 liability for the liabilities of the partnership -- each page 16 Limited Partnerships Bill 2016 Limited partnerships Part 3 Management Division 2 s. 12 1 partner in the partnership whose liability is not so 2 limited is to be counted in place of the general partner. 3 12. Change in membership of limited partnership 4 (1) A person may be admitted as a partner in a limited partnership 5 without the consent of any limited partner. 6 (2) A limited partner in a limited partnership must not assign the 7 limited partner's share in the partnership without the consent of 8 the general partners in the limited partnership. 9 (3) If the limited partner's share in a limited partnership is assigned, 10 the assignee is taken to be a limited partner in substitution for 11 the assignor with all the rights and obligations of the assignor. 12 (4) The application of this section may be varied in relation to a 13 limited partnership by a partnership agreement or with the 14 consent of the partners in the limited partnership. 15 13. Differences between partners 16 (1) A difference arising as to ordinary matters connected with the 17 business of a limited partnership may be decided by a majority 18 of the general partners. 19 (2) The application of this section may be varied in relation to a 20 limited partnership by a partnership agreement or with the 21 consent of the partners in the limited partnership. 22 Division 2 -- Management 23 14. Limited partner must not take part in management of 24 limited partnership 25 (1) A limited partner in a limited partnership must not take part in 26 the management of the business of the partnership. 27 (2) A limited partner in a limited partnership cannot bind the 28 partnership. page 17 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 2 Management s. 15 1 (3) If a limited partner takes part in the management of the business 2 of the partnership, the limited partner is liable, as if the partner 3 were a general partner, for the liabilities of the partnership 4 incurred while the limited partner takes part in the management 5 of that business. 6 (4) The application of this section cannot be varied in relation to a 7 limited partnership by a partnership agreement or with the 8 consent of the partners in the limited partnership. 9 15. When does limited partner take part in management? 10 (1) For the purposes of section 14, a limited partner in a limited 11 partnership does not take part in the management of the 12 business of the partnership merely because the limited partner or 13 a person acting on behalf of the limited partner -- 14 (a) is an employee or an independent contractor of the 15 partnership or of a general partner in the partnership, or 16 is an officer of a general partner in the partnership that is 17 a body corporate; or 18 (b) gives advice to, or on behalf of, the partnership or a 19 general partner in the partnership in the proper exercise 20 of functions arising from the engagement of the limited 21 partner in a professional capacity or arising from 22 business dealings between the limited partner and the 23 partnership or a general partner in the partnership; or 24 (c) gives a guarantee or indemnity in respect of any liability 25 of the partnership or of a general partner in the 26 partnership; or 27 (d) participates in any action by other limited partners in the 28 partnership for the purpose of enforcing their rights or 29 safeguarding their interests as limited partners; or 30 (e) if authorised by a partnership agreement, participates in 31 general meetings of all the partners in the partnership; or 32 (f) exercises a power conferred on the limited partner by 33 section 107. page 18 Limited Partnerships Bill 2016 Limited partnerships Part 3 Registration Division 3 s. 16 1 (2) Subsection (1) is not to be taken to have the effect that a limited 2 partner in a limited partnership takes part in the management of 3 the business of the partnership merely because the limited 4 partner or a person acting on behalf of the limited partner does 5 anything in connection with the conduct of that business that is 6 not referred to in that subsection. 7 (3) The application of this section cannot be varied in relation to a 8 limited partnership by a partnership agreement or with the 9 consent of the partners in the limited partnership. 10 Division 3 -- Registration 11 16. Application for registration 12 (1) An application for registration as a limited partnership may be 13 made by -- 14 (a) a partnership (including an external partnership); or 15 (b) a proposed partner in a proposed limited partnership. 16 (2) An application for registration as a limited partnership is made 17 by lodging with the Commissioner a statement that -- 18 (a) is in the form approved by the Commissioner; and 19 (b) contains each of the matters set out in subsection (3); 20 and 21 (c) is signed -- 22 (i) if the application is made by a partnership -- by 23 each partner in the partnership or by a person 24 given authority to make the application on behalf 25 of the partnership and the partners in it; or 26 (ii) in any other case -- by each proposed partner in 27 the proposed partnership. 28 (3) The statement must contain, in relation to the proposed limited 29 partnership, each of the following matters -- 30 (a) the proposed firm name; page 19 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 3 Registration s. 16 1 (b) the address of the proposed registered office; 2 (c) the name of each proposed partner, being -- 3 (i) if the partner is an individual -- their full name; 4 or 5 (ii) if the partner is a body corporate -- its corporate 6 name; or 7 (iii) if the partner is a partnership -- its firm name or, 8 if the partnership does not have a firm name, the 9 full name of each partner in the partnership; 10 (d) the address of each proposed partner, being -- 11 (i) if the partner is an individual -- their principal 12 place of residence; or 13 (ii) if the partner is a body corporate -- its registered 14 office as defined in the Corporations Act 15 section 9; or 16 (iii) if the partner is a partnership -- its principal 17 office; 18 (e) a statement in relation to each proposed partner as to -- 19 (i) whether they will be a general partner or a 20 limited partner; and 21 (ii) whether they are an individual, a body corporate 22 or a partnership; 23 (f) in relation to each proposed limited partner -- 24 (i) a statement of their agreed contribution; and 25 (ii) a statement to the effect that their liability to 26 contribute is limited to their agreed contribution; 27 and 28 (iii) a statement of the amount of their agreed 29 contribution that has been paid and the amount of 30 their agreed contribution that is unpaid; 31 (g) any other particulars that are required by the form or 32 prescribed. page 20 Limited Partnerships Bill 2016 Limited partnerships Part 3 Registration Division 3 s. 17 1 17. Registration 2 (1) If an application for registration as a limited partnership is made 3 in accordance with this Division, the Commissioner must 4 register the limited partnership. 5 (2) Despite subsection (1), the Commissioner must not register a 6 limited partnership if -- 7 (a) the partnership does not satisfy the requirements as to 8 the composition of a limited partnership under 9 section 11(1) and (3); or 10 (b) the Commissioner is satisfied that the proposed firm 11 name (the proposed name) of the proposed limited 12 partnership is identical with or likely to be confused 13 with -- 14 (i) a business name registered under the Business 15 Names Registration Act; or 16 (ii) a name of a body corporate; or 17 (iii) a firm name of a partnership; 18 or 19 (c) the Commissioner is satisfied that the proposed name 20 would not be eligible for registration as a business name 21 under the Business Names Registration Act; or 22 (d) the Commissioner is satisfied that the proposed name is 23 undesirable. 24 (3) If, in accordance with subsection (2), the Commissioner does 25 not register a limited partnership, the Commissioner must give 26 the applicant notice of the refusal to register the limited 27 partnership and the reasons for the refusal. 28 (4) Registration is carried out by recording in the register the 29 particulars contained in the statement lodged with the 30 Commissioner. page 21 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 4 Liability of partner s. 18 1 Division 4 -- Liability of partner 2 18. Limitation of liability of limited partner 3 (1) The liability of a limited partner to contribute to the liabilities of 4 the limited partnership is, subject to this Part, not to exceed the 5 amount shown in the register as the partner's agreed 6 contribution. 7 (2) If a limited partner in a limited partnership makes a contribution 8 towards their agreed contribution, the liability of the limited 9 partner is reduced to the amount of the partner's agreed 10 contribution shown in the register as unpaid. 11 (3) If the whole or any part of a contribution made by a limited 12 partner in a limited partnership towards their agreed 13 contribution is received back by the partner, the liability of the 14 limited partner is increased to the amount of the partner's 15 agreed contribution shown in the register as unpaid. 16 (4) If a partnership (the investing partnership) is a limited partner 17 in a limited partnership (the principal partnership), a partner in 18 the investing partnership has no separate liability to contribute 19 to the liabilities of the principal partnership. 20 (5) Nothing in subsection (4) affects any liability of the investing 21 partnership as a limited partner to contribute to the liabilities of 22 the principal partnership. 23 19. Change in liability of limited partner 24 (1) A reduction in the liability of a limited partner caused by a 25 reduction in the partner's agreed contribution shown in the 26 register does not extend to any liability of the limited 27 partnership that arose before the reduction was recorded in the 28 register. 29 (2) An increase in the liability of a limited partner caused by an 30 increase in the partner's agreed contribution shown in the page 22 Limited Partnerships Bill 2016 Limited partnerships Part 3 Liability of partner Division 4 s. 20 1 register extends to any liability of the limited partnership that 2 arose before the increase was recorded in the register. 3 20. Effect on liability of change in status of partner 4 (1) If a general partner becomes a limited partner, the partner 5 remains liable, as if the partner were a general partner, for any 6 liability of the limited partnership that arose before the partner 7 became a limited partner. 8 (2) If a limited partner becomes a general partner, the partner 9 remains liable, as if the partner were a limited partner, for any 10 liability of the limited partnership that arose before the partner 11 became a general partner. 12 21. Liability for business conducted outside State 13 The limitation on the liability of a limited partner in a limited 14 partnership extends to any liability incurred in connection with 15 the conduct of the partnership's business outside this State. 16 22. Liability under corresponding law 17 (1) In this section -- 18 recognised limited partnership means a limited partnership 19 formed under a corresponding law. 20 (2) Any limitation under a corresponding law on the liability of a 21 limited partner in a recognised limited partnership extends to 22 any liability incurred in connection with the conduct of the 23 partnership's business in this State. 24 23. Effect of sections 21 and 22 25 Sections 21 and 22 are not to be taken to have the effect that a 26 limited partner in a limited partnership has any liability (or but 27 for that section would have any liability) in connection with the 28 conduct of the partnership's business outside this State that the 29 limited partner would not have in connection with the conduct 30 of the partnership's business within this State. page 23 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 5 Dissolution, cessation and winding up s. 24 1 24. Limitation of liability provisions cannot be varied 2 The application of the provisions of this Act relating to the 3 limitation of liability of a limited partner cannot be varied in 4 relation to a limited partnership by a partnership agreement or 5 with the consent of the partners in the limited partnership. 6 Division 5 -- Dissolution, cessation and winding up 7 25. Dissolution generally 8 (1) A limited partner is not entitled to dissolve a limited partnership 9 by notice. 10 (2) The other partners are not entitled to dissolve the limited 11 partnership on the basis that -- 12 (a) a limited partner has allowed their share of the 13 partnership property to be charged for that partner's 14 separate liabilities; or 15 (b) a limited partner has assigned their share in the 16 partnership. 17 (3) The death, bankruptcy or retirement or, in the case of a body 18 corporate or partnership, the dissolution of a limited partner 19 does not dissolve the partnership. 20 (4) The application of this section may be varied in relation to a 21 limited partnership by a partnership agreement or with the 22 consent of the partners in the limited partnership. 23 26. Dissolution on grounds of mental disability 24 (1) In this section -- 25 mental disability has the meaning given in the Guardianship 26 and Administration Act 1990 section 3(1). 27 (2) The fact that a limited partner in a limited partnership is 28 incapable of managing their affairs because of mental disability 29 is not a ground for dissolution of the partnership by the court 30 unless the share and interest of the partner in the partnership page 24 Limited Partnerships Bill 2016 Limited partnerships Part 3 Dissolution, cessation and winding up Division 5 s. 27 1 cannot be ascertained or realised other than by dissolving the 2 partnership. 3 27. Cessation 4 (1) A partnership ceases to be a limited partnership if -- 5 (a) the partnership ceases to satisfy the requirements as to 6 the composition of a limited partnership under 7 section 11(1) and (3); or 8 (b) the partners cease to carry on a business in common 9 with a view of profit; or 10 (c) an event occurs that makes it unlawful for the business 11 of the partnership to be carried on or for the partners to 12 carry it on in partnership. 13 (2) If a limited partnership ceases to be a limited partnership and 14 the members of the partnership or some of them continue in 15 association or partnership, that association or partnership is 16 taken to have not been formed under this Act from the time it 17 ceased to be a limited partnership. 18 28. Notice of dissolution or cessation 19 (1) If a limited partnership is dissolved under section 25 or ceases 20 to be a limited partnership under section 27, the persons who 21 were registered as general partners immediately before the 22 dissolution or cessation must lodge with the Commissioner a 23 notice of the dissolution or cessation in accordance with 24 subsection (2). 25 (2) The notice must -- 26 (a) be lodged as soon as practicable after the dissolution or 27 cessation; and 28 (b) be in the form approved by the Commissioner; and 29 (c) contain the particulars required by the form; and 30 (d) specify the day on which the dissolution or cessation 31 took effect. page 25 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 5 Dissolution, cessation and winding up s. 29 1 (3) As soon as practicable after receiving a notice under 2 subsection (1), the Commissioner must record in the register -- 3 (a) the dissolution or cessation; and 4 (b) the day on which the dissolution or cessation took effect, 5 being the day specified in the notice under 6 subsection (2)(d). 7 (4) If subsection (1) is not complied with, each person registered as 8 a general partner in the limited partnership immediately before 9 the dissolution or cessation commits an offence. 10 Penalty for this subsection: a fine of $1 500. 11 29. No notice of dissolution or cessation 12 (1) Subsection (2) applies if -- 13 (a) section 28(1) is not complied with; and 14 (b) the Commissioner is satisfied that a limited partnership 15 has dissolved or ceased to be a limited partnership. 16 (2) The Commissioner may give the limited partnership a notice 17 informing the limited partnership that, if it does not satisfy the 18 Commissioner, within 28 days after the day on which the notice 19 is given, that the limited partnership has not dissolved or ceased 20 to be a limited partnership, the dissolution or cessation of the 21 limited partnership will be recorded in the register. 22 (3) The Commissioner must, as soon as practicable after giving a 23 notice to a limited partnership under subsection (2), record the 24 giving of the notice in the register. 25 (4) If, after the expiry of 28 days after the day on which a notice is 26 given to a limited partnership under subsection (2), the 27 Commissioner is still satisfied that the limited partnership has 28 dissolved or ceased to be a limited partnership, the 29 Commissioner may record in the register -- 30 (a) the dissolution or cessation; and page 26 Limited Partnerships Bill 2016 Limited partnerships Part 3 Cancellation of registration Division 6 s. 30 1 (b) the day on which the dissolution or cessation took effect, 2 being the day on which the record is made. 3 (5) If, at any time within 28 days after the day on which a notice is 4 given to a limited partnership under subsection (2), the 5 Commissioner becomes satisfied that the limited partnership has 6 not dissolved or ceased to be a limited partnership, the 7 Commissioner must -- 8 (a) record that fact in the register; and 9 (b) give the limited partnership notice of that fact. 10 30. Winding up 11 If the affairs of a limited partnership are to be wound up by the 12 partners with a view to its dissolution, the winding up must be 13 carried out by the general partners unless the court orders 14 otherwise. 15 Division 6 -- Cancellation of registration 16 31. Cancellation of registration on dissolution or cessation 17 If the Commissioner records the dissolution or cessation of a 18 limited partnership in the register under section 28(3) or 29(4), 19 the Commissioner must, at the same time, cancel the registration 20 of the limited partnership by recording in the register -- 21 (a) the cancellation; and 22 (b) the day on which the cancellation took effect, being the 23 day on which the dissolution or cessation took effect. 24 32. Cancellation of registration on incorporation 25 (1) If the Commissioner registers a limited partnership as an 26 incorporated limited partnership, the Commissioner must, at the 27 same time, cancel the registration of the limited partnership by 28 recording in the register -- 29 (a) the cancellation; and page 27 Limited Partnerships Bill 2016 Part 3 Limited partnerships Division 6 Cancellation of registration s. 33 1 (b) the day on which the cancellation took effect, being the 2 day on which the registration as an incorporated limited 3 partnership took effect. 4 (2) Any liability of a partnership to which subsection (1) applies, or 5 of a partner in the partnership, that arose before its registration 6 as an incorporated limited partnership is to be dealt with as if 7 the partnership were still a limited partnership. 8 33. Notice of cancellation 9 If the registration of a limited partnership is cancelled under this 10 Division, the Commissioner must give the partners notice of the 11 cancellation and the reasons for the cancellation. 12 34. Effect of cancellation 13 A limited partnership ceases to exist on cancellation of its 14 registration as a limited partnership under this Division. page 28 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Nature, formation and membership Division 1 s. 35 1 Part 4 -- Incorporated limited partnerships 2 Division 1 -- Nature, formation and membership 3 35. Nature of incorporated limited partnerships 4 (1) An incorporated limited partnership is a body corporate with -- 5 (a) legal personality separate from that of the partners in it; 6 and 7 (b) perpetual succession. 8 (2) An incorporated limited partnership may have a common seal. 9 (3) An incorporated limited partnership may sue and be sued in its 10 firm name. 11 (4) An incorporated limited partnership has the legal capacity and 12 powers of an individual. 13 (5) An incorporated limited partnership has the powers of a body 14 corporate, including the power to do any of the following, 15 whether within or outside this State or outside Australia -- 16 (a) carry on the business of the partnership; 17 (b) enter into contracts or otherwise acquire rights or 18 liabilities; 19 (c) create, confer, vary or cancel interests in the partnership; 20 (d) acquire, hold and dispose of real or personal property or 21 an interest (whether beneficial or legal) in real or 22 personal property; 23 (e) appoint agents and attorneys, and act as agent for other 24 persons; 25 (f) form, and participate in the formation of, companies or 26 incorporated limited partnerships; 27 (g) participate in partnerships, trusts, joint ventures or other 28 associations and other arrangements for the sharing of 29 profits; page 29 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 1 Nature, formation and membership s. 36 1 (h) do any other things that it is authorised to do by or under 2 this Act. 3 (6) The powers of an incorporated limited partnership may be 4 limited by the partnership agreement. 5 (7) A reference in this Act, in relation to an incorporated limited 6 partnership, to the partnership is a reference to the incorporated 7 limited partnership as a separate legal entity and not to the 8 partners in that partnership. 9 36. Formation of incorporated limited partnerships 10 An incorporated limited partnership is formed by and on 11 registration under this Act as an incorporated limited 12 partnership. 13 37. Composition of incorporated limited partnerships 14 (1) An incorporated limited partnership must have -- 15 (a) at least one general partner; and 16 (b) at least one limited partner. 17 (2) An incorporated limited partnership may have any number of 18 limited partners. 19 (3) An incorporated limited partnership must not have more than 20 20 general partners. 21 (4) A person may be a general partner or a limited partner in an 22 incorporated limited partnership. 23 (5) For the purposes of subsection (3), if a general partner is a 24 partnership (including an external partnership), the general 25 partner is to be counted as follows -- 26 (a) if, under the law of the place where the partnership is 27 formed, no partner in the partnership has limited liability 28 for the liabilities of the partnership -- each partner in 29 the partnership is to be counted in place of the general 30 partner; page 30 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Nature, formation and membership Division 1 s. 38 1 (b) if, under the law of the place where the partnership is 2 formed, any partner in the partnership has limited 3 liability for the liabilities of the partnership -- each 4 partner in the partnership whose liability is not so 5 limited is to be counted in place of the general partner. 6 38. Change in membership 7 (1) A person may be admitted as a partner in an incorporated 8 limited partnership without the consent of any limited partner. 9 (2) A limited partner in an incorporated limited partnership must 10 not transfer the whole or a part of the limited partner's interest 11 in the incorporated limited partnership without -- 12 (a) the consent of the general partners in the incorporated 13 limited partnership; and 14 (b) the consent of the transferee. 15 (3) If the whole of the limited partner's interest in the incorporated 16 limited partnership is transferred to a transferee, the transferee 17 becomes a limited partner in substitution for the transferor with 18 all the rights and obligations of the transferor. 19 (4) If only a part of the limited partner's interest in the incorporated 20 limited partnership is transferred to a transferee, the transferee 21 becomes a limited partner in substitution for the transferor in 22 relation to the transferred part and with all the rights and 23 obligations of the transferor in relation to it. 24 (5) The application of this section may be varied in relation to an 25 incorporated limited partnership by the partnership agreement or 26 with the consent of the partners in the incorporated limited 27 partnership. 28 39. Differences between partners 29 (1) A difference arising as to ordinary matters connected with the 30 business of an incorporated limited partnership may be decided 31 by a majority of the general partners. page 31 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 1 Nature, formation and membership s. 40 1 (2) The application of this section may be varied in relation to an 2 incorporated limited partnership by the partnership agreement or 3 with the consent of the partners in the incorporated limited 4 partnership. 5 40. Agents 6 (1) Each of the following is not an agent of, and cannot bind, a 7 limited partner in an incorporated limited partnership -- 8 (a) the partnership; 9 (b) a general partner in the partnership; 10 (c) an officer, employee, agent or representative of a 11 general partner in the partnership; 12 (d) an officer, employee, agent or representative of the 13 partnership. 14 (2) A limited partner in an incorporated limited partnership is not 15 an agent of, or a fiduciary for, and cannot bind -- 16 (a) the partnership; or 17 (b) a general partner in the partnership; or 18 (c) another limited partner in the partnership. 19 (3) The application of subsections (1) and (2) may be varied in 20 relation to an incorporated limited partnership by the 21 partnership agreement or with the consent of the partners in the 22 incorporated limited partnership. 23 (4) Subsections (1) and (2) do not prevent the making of, or limit or 24 restrict, an agreement between a partner (the first person) in an 25 incorporated limited partnership and either another partner in 26 the partnership or the partnership (the second person) under 27 which -- 28 (a) the first person acts as an agent of the second person 29 and, by so acting, binds the second person; or 30 (b) the second person acts as an agent of the first person 31 and, by so acting, binds the first person. page 32 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Management Division 2 s. 41 1 41. Partnership agreement 2 (1) There must at all times be a written partnership agreement 3 between the partners in an incorporated limited partnership. 4 (2) The interests of the partners in an incorporated limited 5 partnership and their rights and duties in relation to the 6 partnership are, subject to this Act, to be determined in 7 accordance with the agreement. 8 (3) A partnership agreement has effect as a contract between the 9 incorporated limited partnership and each partner in the 10 partnership under which the partnership and each of the partners 11 agree to observe and perform the agreement so far as it applies 12 to them. 13 (4) Nothing in subsection (3) prevents an incorporated limited 14 partnership itself executing a partnership agreement. 15 Division 2 -- Management 16 42. Limited partner must not take part in management of 17 incorporated limited partnership 18 (1) A limited partner in an incorporated limited partnership must 19 not take part in the management of the business of the 20 partnership. 21 (2) Subsection (3) applies if -- 22 (a) as a direct result of any wrongful act or omission of a 23 limited partner in taking part in the management of the 24 business of an incorporated limited partnership, the 25 limited partner causes any loss or injury to any person 26 (a third party) other than a partner in the partnership; 27 and 28 (b) at the time of the act or omission, the third party had 29 reasonable grounds to believe that the limited partner 30 was a general partner in the partnership. page 33 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 2 Management s. 43 1 (3) The limited partner is liable for the loss or injury to the same 2 extent that the limited partner would have been liable if the 3 limited partner were a general partner in the partnership. 4 (4) The application of this section cannot be varied in relation to an 5 incorporated limited partnership by the partnership agreement or 6 with the consent of the partners in the incorporated limited 7 partnership. 8 43. When does limited partner take part in management? 9 (1) For the purposes of section 42, a limited partner in an 10 incorporated limited partnership does not take part in the 11 management of the business of the partnership merely because 12 the limited partner or a person acting on behalf of the limited 13 partner -- 14 (a) is an employee of or an independent contractor engaged 15 by -- 16 (i) the partnership; or 17 (ii) a general partner in the partnership; or 18 (iii) an associate of a general partner in the 19 partnership; 20 or 21 (b) is an officer of a body corporate that is -- 22 (i) a general partner in the partnership; or 23 (ii) an associate of a general partner in the 24 partnership; 25 or 26 (c) gives advice to, or on behalf of, the partnership, a 27 general partner in the partnership or an associate of a 28 general partner in the partnership in the proper exercise 29 of functions arising from -- 30 (i) the engagement of the limited partner, or the 31 person acting on behalf of the limited partner, in 32 a professional capacity; or page 34 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Management Division 2 s. 43 1 (ii) business dealings between the limited partner, or 2 the person acting on behalf of the limited partner, 3 and the partnership, a general partner in the 4 partnership or an associate of a general partner in 5 the partnership; 6 or 7 (d) gives a guarantee or indemnity in respect of any liability 8 of the partnership, a general partner in the partnership or 9 an associate of a general partner in the partnership; or 10 (e) takes any action, or participates in any action taken by 11 any other limited partner in the partnership, for the 12 purpose of enforcing the rights, or safeguarding the 13 interests, of the limited partner as a limited partner; or 14 (f) if authorised by the partnership agreement -- 15 (i) calls, requisitions, convenes, chairs, participates 16 in, postpones, adjourns or makes a record of a 17 meeting of any of the partners in the partnership; 18 or 19 (ii) requisitions, signs or otherwise passes, approves, 20 disapproves or amends any resolution (whether 21 at a meeting, in writing or otherwise) of any of 22 the partners in the partnership, including without 23 limitation by formulating, moving, proposing, 24 supporting, opposing, speaking to or voting on 25 the resolution; 26 or 27 (g) exercises a power conferred on the limited partner by 28 section 107; or 29 (h) gives advice to, or consults with, an officer, director, 30 security holder, partner, agent, representative, employee 31 of, or independent contractor engaged by, an associate 32 of the partnership; or 33 (i) is, or acts as, an officer, director, security holder, 34 partner, agent, representative, employee of, or page 35 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 2 Management s. 43 1 independent contractor engaged by, an associate of the 2 partnership; or 3 (j) is, or acts as, a lender to, or fiduciary for, an associate of 4 the partnership; or 5 (k) to the extent authorised by the partnership agreement -- 6 (i) participates on a committee (a relevant 7 committee) that considers, approves of, consents 8 to or disapproves of a proposal of a kind referred 9 to in section 44; or 10 (ii) has, or exercises, any right to appoint one or 11 more persons to, remove one or more persons 12 from, or to nominate one or more persons for 13 appointment to or removal from, a relevant 14 committee; 15 or 16 (l) nominates, selects, investigates, evaluates or negotiates 17 with any person in connection with the removal or 18 replacement of a general partner; or 19 (m) participates on a committee that proposes, considers, 20 approves of, consents to or disapproves of any 21 nomination, selection, appointment, change in control or 22 ownership, suspension, replacement or removal of a 23 general partner or an associate of a general partner; or 24 (n) takes any action, or participates in any action taken by 25 any other limited partner, for the purpose of registering 26 or maintaining the registration of the partnership or a 27 general partner in the partnership as an AFOF, ESVCLP 28 or VCLP. 29 (2) Subsection (1) is not to be taken to have the effect that a limited 30 partner in an incorporated limited partnership takes part in the 31 management of the business of the partnership merely because 32 the limited partner or a person acting on behalf of the limited 33 partner does anything in connection with the conduct of that 34 business that is not referred to in that subsection. page 36 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Management Division 2 s. 44 1 (3) Subsection (1) is not to be taken to have the effect that a limited 2 partner in an incorporated limited partnership that is a VCMP 3 takes part in the management of the business of the incorporated 4 limited partnership merely because of any act the limited partner 5 takes in respect of the incorporated limited partnership in the 6 capacity of a partner or associate of a partner in the VCMP. 7 (4) The application of this section cannot be varied in relation to an 8 incorporated limited partnership by the partnership agreement or 9 with the consent of the partners in the incorporated limited 10 partnership. 11 44. Proposals to which section 43(1)(k)(i) applies 12 Section 43(1)(k)(i) applies to the following kinds of proposals in 13 relation to an incorporated limited partnership -- 14 (a) a proposal involving a material change in the nature of 15 the business of the partnership (including a change in, or 16 departure from, any investment guidelines, policies or 17 conditions relating to the business of the partnership); 18 (b) a proposal for the adoption of a method for valuing 19 some or all of the assets of the partnership (including a 20 change to, replacement of or variation from that 21 method); 22 (c) a proposal for an extension or reduction in the period in 23 which, under the partnership agreement, investments (or 24 certain types of investments) can be made by the 25 partnership, or for any approval or disapproval of 26 investments that the partnership does not otherwise have 27 a right to make; 28 (d) a proposal relating to any actual or potential transaction 29 or other matter involving any actual or potential conflict 30 of interest; 31 (e) a proposal relating to any actual or potential transaction, 32 contract, arrangement or understanding between one or 33 more of the partners in the partnership, or their 34 associates, and a general partner in the partnership, the page 37 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 3 Registration s. 45 1 partnership or any associate of a general partner in the 2 partnership or of the partnership; 3 (f) a proposal for the delegation, waiver, release or 4 variation of an authority, right, duty or obligation of a 5 general partner in the partnership; 6 (g) a proposal for the appointment or approval under the 7 partnership agreement of any person as a senior 8 executive of a general partner in the partnership or of an 9 associate of a general partner in the partnership. 10 Division 3 -- Registration 11 45. Application for registration 12 (1) An application for registration as an incorporated limited 13 partnership may be made, in the circumstances described in 14 subsection (2), by -- 15 (a) a partnership (including an external partnership); or 16 (b) a proposed partner in a proposed incorporated limited 17 partnership. 18 (2) For the purposes of subsection (1), the circumstances are -- 19 (a) if the application is made by a partnership under 20 subsection (1)(a) -- the partnership is an AFOF, 21 ESVCLP, VCLP or VCMP; or 22 (b) a general partner in the partnership or a proposed 23 general partner in the proposed partnership intends to 24 apply for registration of the partnership or proposed 25 partnership as an AFOF, ESVCLP or VCLP; or 26 (c) the partners in the partnership or the proposed partners 27 in the proposed partnership intend that the partnership or 28 proposed partnership will meet the requirements set out 29 in the Income Tax Assessment Act 1936 30 (Commonwealth) section 94D(3) for recognition as a 31 VCMP; or 32 (d) any other prescribed circumstances. page 38 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Registration Division 3 s. 45 1 (3) An application for registration as an incorporated limited 2 partnership is made by lodging with the Commissioner a 3 statement that -- 4 (a) is in the form approved by the Commissioner; and 5 (b) contains each of the matters set out in subsection (4); 6 and 7 (c) is signed -- 8 (i) if the application is made by a partnership -- by 9 each partner in the partnership or by a person 10 given authority to make the application on behalf 11 of the partnership and the partners in it; or 12 (ii) in any other case -- by each proposed partner in 13 the proposed partnership. 14 (4) For the purposes of subsection (3)(b), the statement must 15 contain, in relation to the proposed incorporated limited 16 partnership, each of the following matters -- 17 (a) the proposed firm name; 18 (b) the address of the proposed registered office; 19 (c) the name of each proposed partner, being -- 20 (i) if the partner is an individual -- their full name; 21 or 22 (ii) if the partner is a body corporate -- its corporate 23 name; or 24 (iii) if the partner is a partnership -- the firm name 25 or, if the partnership does not have a firm name, 26 the full name of each partner in the partnership; 27 (d) the address of each proposed partner, being -- 28 (i) if the partner is an individual -- their principal 29 place of residence; or 30 (ii) if the partner is a body corporate -- its registered 31 office as defined in the Corporations Act 32 section 9; or page 39 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 3 Registration s. 46 1 (iii) if the partner is a partnership -- its principal 2 office; 3 (e) a statement in relation to each proposed partner as to -- 4 (i) whether they will be a general partner or a 5 limited partner; and 6 (ii) whether they are an individual, a body corporate 7 or a partnership; 8 (f) if the partnership is registered as an AFOF, ESVCLP or 9 VCLP -- a statement to that effect; 10 (g) if it is intended that the partnership apply for registration 11 as an AFOF, ESVCLP or VCLP -- a statement to that 12 effect; 13 (h) if the partnership is a VCMP -- a statement to that 14 effect; 15 (i) if it is intended that the partnership meet the 16 requirements for recognition as a VCMP -- a statement 17 to that effect; 18 (j) any other particulars that are required by the form or 19 prescribed. 20 46. Registration 21 (1) If an application for registration as an incorporated limited 22 partnership is made in accordance with this Division the 23 Commissioner must register the incorporated limited 24 partnership. 25 (2) Despite subsection (1), the Commissioner must not register an 26 incorporated limited partnership if -- 27 (a) the partnership does not satisfy the requirements as to 28 the composition of an incorporated limited partnership 29 under section 37(1) and (3); or 30 (b) the Commissioner is satisfied that the proposed firm 31 name (the proposed name) of the proposed incorporated page 40 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Lodgment of documents relating to registration Division 4 s. 47 1 limited partnership is identical with or likely to be 2 confused with -- 3 (i) a business name registered under the Business 4 Names Registration Act; or 5 (ii) a name of a body corporate; or 6 (iii) a firm name of a partnership; 7 or 8 (c) the Commissioner is satisfied that the proposed name 9 would not be eligible for registration as a business name 10 under the Business Names Registration Act; or 11 (d) the Commissioner is satisfied that the proposed name is 12 undesirable. 13 (3) If, in accordance with subsection (2), the Commissioner does 14 not register an incorporated limited partnership, the 15 Commissioner must give the applicant notice of the refusal to 16 register the incorporated limited partnership and the reasons for 17 the refusal. 18 (4) Registration is carried out by recording in the register the 19 particulars contained in the statement lodged with the 20 Commissioner. 21 Division 4 -- Lodgment of documents relating to registration 22 47. Evidence of status: on registration 23 A statement lodged under section 45(3) in the circumstances 24 described in section 45(2)(a) must be accompanied by -- 25 (a) if the partnership is registered as an AFOF, ESVCLP or 26 VCLP -- a copy of a document evidencing its status as 27 an AFOF, ESVCLP or VCLP; or 28 (b) if the partnership is a VCMP -- a copy of a document 29 evidencing its status as a VCMP. page 41 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 4 Lodgment of documents relating to registration s. 48 1 48. Evidence of status: after registration 2 (1) An incorporated limited partnership that was incorporated on 3 the basis of an intention to apply for registration of the 4 partnership as an AFOF, ESVCLP or VCLP must -- 5 (a) if the incorporated limited partnership has, within the 6 period of 2 years after its incorporation, been so 7 registered -- lodge with the Commissioner a copy of a 8 document evidencing its status as an AFOF, ESVCLP or 9 VCLP within 1 month after being so registered; or 10 (b) if the incorporated limited partnership has not, within 11 the period of 2 years after its incorporation, been so 12 registered -- lodge with the Commissioner a notice of 13 that fact as soon as practicable after the end of the 2 year 14 period. 15 (2) An incorporated limited partnership that was incorporated on 16 the basis of an intention to meet the requirements for 17 recognition as a VCMP must -- 18 (a) if the incorporated limited partnership has, within the 19 period of 2 years after its incorporation, met the 20 requirements for recognition as a VCMP -- lodge with 21 the Commissioner a document evidencing its status as a 22 VCMP with 1 month after so meeting the requirements; 23 or 24 (b) if the incorporated limited partnership has not, within 25 the period of 2 years after its incorporation, met the 26 requirements for recognition as a VCMP -- lodge with 27 the Commissioner a notice of that fact as soon as 28 practicable after the end of the 2 year period. 29 (3) Subsection (4) applies if -- 30 (a) the registration of an incorporated limited partnership as 31 an AFOF, ESVCLP or VCLP is revoked; or 32 (b) an incorporated limited partnership ceases to be a 33 VCMP. page 42 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Liability of partner Division 5 s. 49 1 (4) The incorporated limited partnership must, within 7 days after 2 the day on which the revocation takes effect or it ceases to be a 3 VCMP, lodge with the Commissioner a notice of that revocation 4 or cessation specifying the day on which the revocation or 5 cessation took effect. 6 (5) If subsection (1), (2) or (3) is not complied with, each general 7 partner in the incorporated limited partnership commits an 8 offence. 9 Penalty for this subsection: a fine of $1 500. 10 (6) A notice required to be lodged with the Commissioner under 11 this section must be -- 12 (a) in the form approved by the Commissioner; and 13 (b) contain the particulars that are required by the form or 14 prescribed. 15 Division 5 -- Liability of partner 16 49. Limitation of liability of limited partner 17 (1) Subject to section 42 and subsection (2), a limited partner in an 18 incorporated limited partnership has no liability for the 19 liabilities of -- 20 (a) the partnership; or 21 (b) a general partner in the partnership. 22 (2) Nothing in section 51 or 52 prevents either of the following in 23 satisfaction of a liability of the partnership or a general partner 24 in the partnership -- 25 (a) a contribution of capital or property made by a limited 26 partner to the incorporated limited partnership being 27 used; 28 (b) an obligation of a limited partner to contribute capital or 29 property to the incorporated limited partnership being 30 enforced by any person to whom the obligation is owed. page 43 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 5 Liability of partner s. 50 1 50. Effect on liability of change in status of partner 2 (1) If a general partner becomes a limited partner, the partner 3 remains liable, as if the partner were a general partner, for any 4 liability of the incorporated limited partnership that arose before 5 the partner became a limited partner to the extent that the 6 partnership is unable to satisfy the liability or to any greater 7 extent provided by the partnership agreement. 8 (2) If a limited partner becomes a general partner, the partner 9 remains not liable for any liability of the incorporated limited 10 partnership that arose before the partner became a general 11 partner. 12 51. Liability for business conducted outside State 13 The limitation on the liability of a limited partner in an 14 incorporated limited partnership extends to any liability 15 incurred -- 16 (a) in connection with the conduct of the partnership's 17 business outside this State; or 18 (b) as a result of an act or omission outside this State of -- 19 (i) a partner in the partnership; or 20 (ii) the partnership; or 21 (iii) an officer, employee, agent or representative of 22 the partnership or of a general partner in the 23 partnership. 24 52. Liability under corresponding law 25 (1) In this section -- 26 recognised incorporated limited partnership means an 27 incorporated limited partnership formed under a corresponding 28 law. page 44 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Winding up Division 6 s. 53 1 (2) Subject to subsection (3), a partner in a recognised incorporated 2 limited partnership is liable for a liability incurred by the 3 partnership as a result of -- 4 (a) the conduct of the recognised incorporated limited 5 partnership's business in this State; or 6 (b) the acts or omissions in this State of -- 7 (i) a partner in the partnership; or 8 (ii) the partnership; or 9 (iii) any officer, employee, agent or representative of 10 the partnership or a general partner in the 11 partnership. 12 (3) Subsection (2) only applies in circumstances where the partner 13 would be so liable under the corresponding law if the conduct or 14 acts or omissions occurred in the place where the recognised 15 incorporated limited partnership was formed. 16 53. Effect of sections 51 and 52 17 Sections 51 and 52 are not to be taken to have the effect that a 18 limited partner in an incorporated limited partnership has any 19 liability (or but for that section would have any liability) in 20 connection with the conduct of the partnership's business or acts 21 or omissions outside this State that the limited partner would not 22 have in connection with the conduct of the partnership's 23 business or acts or omissions within this State. 24 Division 6 -- Winding up 25 Subdivision 1 -- Voluntary winding up 26 54. Voluntary winding up 27 (1) An incorporated limited partnership may be wound up 28 voluntarily -- 29 (a) under the partnership agreement; or page 45 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 6 Winding up s. 55 1 (b) subject to the partnership agreement, if the limited 2 partners so resolve by special resolution. 3 (2) In subsection (1) -- 4 special resolution means a resolution that has been passed by at 5 least 75% of the limited partners. 6 (3) On a voluntary winding up of an incorporated limited 7 partnership -- 8 (a) if the partnership agreement sets out how the assets are 9 to be dealt with on a voluntary winding up -- the assets 10 must be dealt with under the partnership agreement; or 11 (b) otherwise -- the assets must be distributed among the 12 partners in shares that are proportionate to their 13 respective contributions of capital or property to the 14 partnership. 15 (4) Any person aggrieved by the operation of this section in relation 16 to the assets of an incorporated limited partnership may apply to 17 the court. 18 (5) On an application under subsection (4), the court may make any 19 order relating to the disposal of the assets that it considers 20 appropriate. 21 Subdivision 2 -- Winding up required by Commissioner 22 55. Grounds for winding up required by Commissioner 23 There are grounds to give a show cause notice to an 24 incorporated limited partnership under section 56 if the 25 Commissioner is satisfied that the partnership -- 26 (a) does not satisfy the requirements as to the composition 27 of an incorporated limited partnership under 28 section 37(1) and (3); or 29 (b) is an AFOF, ESVCLP, VCLP or VCMP and has ceased 30 to carry on business with a view of profit; or 31 (c) has obtained incorporation by mistake or fraud; or page 46 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Winding up Division 6 s. 56 1 (d) exists for an illegal purpose; or 2 (e) having been incorporated on the basis that the 3 partnership is or is intended to be an AFOF, ESVCLP or 4 VCLP -- 5 (i) has had its registration as an AFOF, ESVCLP or 6 VCLP revoked; or 7 (ii) has not, within the period of 2 years after its 8 incorporation, become so registered; 9 or 10 (f) having been incorporated on the basis that the 11 partnership is or is intended to be a VCMP -- 12 (i) has ceased to meet the requirements set out in the 13 Income Tax Assessment Act 1936 14 (Commonwealth) section 94D(3) for recognition 15 as a VCMP; or 16 (ii) has not, within the period of 2 years after its 17 incorporation, met those requirements. 18 56. Commissioner may require incorporated limited 19 partnership to show cause 20 If the Commissioner is satisfied that there are grounds to give a 21 show cause notice to an incorporated limited partnership, the 22 Commissioner may give the incorporated limited partnership a 23 notice -- 24 (a) stating that the Commissioner proposes to require that 25 the incorporated limited partnership be wound up; and 26 (b) specifying the ground or grounds on which that is 27 proposed; and 28 (c) informing the incorporated limited partnership that, if it 29 does not show cause within 28 days after the day on 30 which the notice is given, the incorporated limited 31 partnership will be required to be wound up. page 47 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 6 Winding up s. 57 1 57. How incorporated limited partnership may show cause 2 If a show cause notice has been given to an incorporated limited 3 partnership, the incorporated limited partnership shows cause 4 for the purposes of sections 58 and 59 if it satisfies the 5 Commissioner that the ground or grounds stated in the notice 6 does not or do not apply to the incorporated limited partnership. 7 58. Commissioner may give winding up notice where cause not 8 shown 9 If a show cause notice has been given to an incorporated limited 10 partnership and the incorporated limited partnership does not 11 show cause within 28 days after the day on which the notice is 12 given, the Commissioner may give the incorporated limited 13 partnership a notice requiring the incorporated limited 14 partnership to be wound up. 15 59. Commissioner must record in register where cause shown 16 If a show cause notice has been given to an incorporated limited 17 partnership and the incorporated limited partnership shows 18 cause within 28 days after the day on which the notice is given, 19 the Commissioner must -- 20 (a) record that fact in the register; and 21 (b) give the incorporated limited partnership notice of that 22 fact. 23 60. Power to cancel winding up notice given in error 24 (1) This section applies if the Commissioner is satisfied, in relation 25 to a winding up notice given to an incorporated limited 26 partnership, that -- 27 (a) the notice was given in error; or 28 (b) the incorporated limited partnership should not be 29 required to be wound up. 30 (2) The Commissioner may cancel the winding up notice by giving 31 a notice to the incorporated limited partnership to that effect. page 48 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Winding up Division 6 s. 61 1 61. Notices must be recorded in register 2 As soon as practicable after giving a show cause notice, winding 3 up notice or a notice under section 60(2), the Commissioner -- 4 (a) must record the giving of the notice in the register; and 5 (b) may publish the notice in a manner the Commissioner 6 considers appropriate. 7 62. Commencement and completion of winding up 8 (1) This section applies in relation to an incorporated limited 9 partnership if the Commissioner has given a winding up notice 10 to the incorporated limited partnership and that notice has not 11 been cancelled. 12 (2) The incorporated limited partnership must be wound up by -- 13 (a) the incorporated limited partnership; or 14 (b) if a person is appointed to be the liquidator of the 15 incorporated limited partnership under section 64(1) -- 16 the liquidator. 17 (3) Winding up of the incorporated limited partnership must be 18 commenced -- 19 (a) if paragraph (b) does not apply -- no later than 28 days 20 after the day on which the notice is given; or 21 (b) if an application is made under section 96 and the State 22 Administrative Tribunal affirms the decision to give the 23 notice -- no later than 28 days after the day on which 24 the application is determined. 25 (4) Winding up of the incorporated limited partnership must be 26 completed -- 27 (a) within the period specified by the Commissioner in a 28 notice given to the incorporated limited partnership, 29 being at least 60 days after the day on which the notice 30 is given; or page 49 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 6 Winding up s. 63 1 (b) within a longer period approved in writing by the 2 Commissioner. 3 63. Costs of winding up 4 The reasonable costs of a winding up required on a winding up 5 notice given to an incorporated limited partnership are payable 6 out of the property of the partnership. 7 64. Appointment of liquidator 8 (1) On the commencement of the winding up of an incorporated 9 limited partnership required on a winding up notice, the 10 Commissioner may appoint a person to be the liquidator of the 11 incorporated limited partnership. 12 (2) The liquidator is not required to be a registered liquidator as 13 defined in the Corporations Act section 9 and may be -- 14 (a) a general partner in the incorporated limited partnership; 15 or 16 (b) an associate of a general partner in the incorporated 17 limited partnership. 18 (3) If the Commissioner appoints a person to be the liquidator of an 19 incorporated limited partnership under subsection (1), the 20 Commissioner must record the appointment in the register. 21 (4) The regulations may make provision for or in relation to the 22 giving of security by the liquidator to the Commissioner. 23 (5) The liquidator is entitled to receive from the incorporated 24 limited partnership property the remuneration that is fixed by 25 the Commissioner. 26 (6) Any vacancy occurring in the office of liquidator must be filled 27 by a person appointed by the Commissioner. page 50 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Winding up Division 6 s. 65 1 65. Distribution of assets on winding up 2 (1) On a winding up of an incorporated limited partnership required 3 on a winding up notice -- 4 (a) if the partnership agreement sets out how the assets are 5 to be dealt with on a winding up -- the assets must be 6 dealt with under the partnership agreement; or 7 (b) otherwise -- the assets must be distributed among the 8 partners in shares that are proportionate to their 9 respective contributions of capital or property to the 10 partnership. 11 (2) Any person aggrieved by the operation of this section in relation 12 to the assets of an incorporated limited partnership may apply to 13 the court. 14 (3) On an application, the court may make any order relating to the 15 disposal of the assets that it considers appropriate. 16 Subdivision 3 -- Winding up under Corporations Act 17 66. Application of Corporations Act to winding up 18 (1) In this section -- 19 ASIC means the Australian Securities and Investments 20 Commission established under the ASIC Act; 21 ASIC Act means the Australian Securities and Investments 22 Commission Act 2001 (Commonwealth). 23 (2) Subject to subsection (4), the winding up of an incorporated 24 limited partnership is declared to be an applied Corporations 25 legislation matter for the purposes of the Corporations 26 (Ancillary Provisions) Act 2001 Part 3 in relation to the 27 provisions of the Corporations Act Part 5.7, with the 28 modifications set out in subsection (3). page 51 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 6 Winding up s. 67 1 (3) For the purposes of subsection (2), the provisions of the 2 Corporations Act Part 5.7 -- 3 (a) apply as if the incorporated limited partnership were a 4 Part 5.7 body (as defined in the Corporations Act 5 section 9); and 6 (b) are to be read as if the words "or in the public interest" 7 were inserted in section 583(c)(ii) after the words "just 8 and equitable"; and 9 (c) are to be read as if section 583(d) were deleted; and 10 (d) are to be read subject to any other modifications (within 11 the meaning of the Corporations (Ancillary Provisions) 12 Act 2001 Part 3) that are prescribed. 13 (4) Subsection (2) does not apply to a voluntary winding up or a 14 winding up required on a winding up notice. 15 (5) ASIC may perform a function conferred on it under a law 16 applied by subsection (2) -- 17 (a) under an agreement or arrangement of the kind referred 18 to in the ASIC Act section 11(8) or (9A)(b); and 19 (b) if ASIC is authorised to perform that function under 20 section 11 of that Act. 21 (6) Unless a function under a law applied by subsection (2) is 22 conferred on ASIC as referred to in subsection (5), that law 23 applies as if a reference in it to ASIC were a reference to the 24 Commissioner. 25 Subdivision 4 -- Winding up generally 26 67. Notice of winding up 27 (1) An incorporated limited partnership must ensure that a notice of 28 the commencement of the winding up of the partnership is 29 lodged with the Commissioner within 7 days after -- 30 (a) the day on which a special resolution referred to in 31 section 54(1)(b) is passed; or page 52 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Winding up Division 6 s. 68 1 (b) otherwise, the day on which the winding up is 2 commenced. 3 (2) An incorporated limited partnership must ensure that a notice of 4 the completion of the winding up of the partnership is lodged 5 with the Commissioner within 7 days after the day on which the 6 winding up is completed, specifying the day on which the 7 winding up was completed. 8 (3) The Commissioner must, as soon as practicable after receiving a 9 notice under subsection (1) or (2), record the receipt of the 10 notice in the register. 11 (4) The Commissioner must, as soon as practicable after receiving a 12 notice under subsection (2), record in the register -- 13 (a) the winding up; and 14 (b) the day on which the winding up took effect, being the 15 day specified in the notice as the day on which the 16 winding up was completed. 17 (5) If subsection (1) is not complied with, each general partner in 18 the incorporated limited partnership when the special resolution 19 was passed or the winding up commenced, as the case requires, 20 commits an offence. 21 Penalty for this subsection: a fine of $1 500. 22 (6) If subsection (2) is not complied with, each partner in the 23 incorporated limited partnership immediately before the 24 winding up was completed commits an offence. 25 Penalty for this subsection: a fine of $1 500. 26 68. No notice of winding up 27 (1) Subsection (2) applies if -- 28 (a) section 67(2) is not complied with; and 29 (b) the Commissioner is satisfied that an incorporated 30 limited partnership has been wound up. page 53 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 7 Cancellation of registration s. 69 1 (2) The Commissioner may give the incorporated limited 2 partnership a notice informing the incorporated limited 3 partnership that, if it does not satisfy the Commissioner, within 4 28 days after the day on which the notice is given, that the 5 incorporated limited partnership has not been wound up, the 6 winding up of the incorporated limited partnership will be 7 recorded in the register. 8 (3) The Commissioner must, as soon as practicable after giving a 9 notice to an incorporated limited partnership under 10 subsection (2), record the giving of the notice in the register. 11 (4) If, after the expiry of 28 days after the day on which a notice is 12 given to an incorporated limited partnership under 13 subsection (2), the Commissioner is still satisfied that the 14 incorporated limited partnership has been wound up, the 15 Commissioner may record in the register -- 16 (a) the winding up; and 17 (b) the day on which the winding up took effect, being the 18 day on which the record is made. 19 (5) If, at any time within 28 days after the day on which a notice is 20 given to an incorporated limited partnership under 21 subsection (2), the Commissioner becomes satisfied that the 22 incorporated limited partnership has not been wound up, the 23 Commissioner must -- 24 (a) record that fact in the register; and 25 (b) give the incorporated limited partnership notice of that 26 fact. 27 Division 7 -- Cancellation of registration 28 69. Cancellation of registration on winding up 29 If the Commissioner records the winding up of an incorporated 30 limited partnership in the register under section 67(4) or 68(4), 31 the Commissioner must, at the same time, cancel the registration page 54 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Miscellaneous Division 8 s. 70 1 of the incorporated limited partnership by recording in the 2 register -- 3 (a) the cancellation; and 4 (b) the day on which the cancellation took effect, being the 5 day on which the winding up took effect. 6 70. Notice of cancellation 7 If the registration of an incorporated limited partnership is 8 cancelled under this Division, the Commissioner must give the 9 partners notice of the cancellation and the reasons for the 10 cancellation. 11 71. Effect of cancellation 12 An incorporated limited partnership ceases to exist on 13 cancellation of its registration as an incorporated limited 14 partnership under this Division. 15 Division 8 -- Miscellaneous 16 72. Entitlement to make assumptions 17 (1) A person is entitled to make the assumptions in section 73 in 18 relation to dealings with an incorporated limited partnership. 19 (2) The incorporated limited partnership is not entitled to assert in 20 proceedings in relation to the dealings that any of the 21 assumptions in section 73 are incorrect. 22 (3) A person is entitled to make the assumptions in section 73 in 23 relation to dealings with another person (the other person) who 24 has, or purports to have, directly or indirectly acquired title to 25 property from an incorporated limited partnership. 26 (4) The incorporated limited partnership and the other person are 27 not entitled to assert in proceedings in relation to the dealings 28 that any of the assumptions in section 73 are incorrect. page 55 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 8 Miscellaneous s. 73 1 (5) The assumptions in section 73 may be made even if a partner or 2 agent of the incorporated limited partnership acts fraudulently, 3 or forges a document, in connection with the dealings. 4 (6) A person is not entitled to make an assumption in section 73 if, 5 at the time of the dealings, they knew or suspected that the 6 assumption was incorrect. 7 73. Assumptions that can be made 8 (1) A person may assume that the partnership agreement of an 9 incorporated limited partnership has been complied with. 10 (2) A person may assume that anyone who appears, from 11 information that is available to the public from the register, to 12 be a general partner in an incorporated limited partnership -- 13 (a) is a general partner in the incorporated limited 14 partnership; and 15 (b) has authority to exercise the powers and perform the 16 duties customarily exercised or performed by a general 17 partner in an incorporated limited partnership. 18 (3) A person may assume that anyone who is held out by an 19 incorporated limited partnership to be a general partner in, or an 20 agent of, the incorporated limited partnership -- 21 (a) is a general partner in the incorporated limited 22 partnership or has been appointed as an agent of the 23 incorporated limited partnership, as the case requires; 24 and 25 (b) has authority to exercise the powers and perform the 26 duties customarily exercised or performed by a general 27 partner in, or agent of, an incorporated limited 28 partnership, as the case requires. 29 (4) A person may assume that a general partner in, or an agent of, 30 an incorporated limited partnership properly performs their 31 duties to the incorporated limited partnership. page 56 Limited Partnerships Bill 2016 Incorporated limited partnerships Part 4 Miscellaneous Division 8 s. 74 1 (5) A person may assume that a document has been executed by an 2 incorporated limited partnership if -- 3 (a) the incorporated limited partnership's common seal 4 appears to have been attached to the document; or 5 (b) the document appears to have been signed in accordance 6 with section 75. 7 (6) A person may assume that a general partner in, or agent of, an 8 incorporated limited partnership who has authority to issue a 9 document or certified copy of a document on its behalf also has 10 authority to warrant that the document is genuine or is a true 11 copy. 12 (7) Without limiting the generality of this section, the assumptions 13 that may be made under this section apply for the purposes of 14 this section. 15 74. Common seal 16 (1) The common seal of an incorporated limited partnership must 17 be kept in the custody that the partnership directs and must not 18 be used except as authorised by it. 19 (2) All courts must take judicial notice of the common seal of an 20 incorporated limited partnership attached to a document and, 21 until the contrary is proved, must presume that it was attached 22 in accordance with this section. 23 75. Execution 24 Without limiting the ways in which an incorporated limited 25 partnership may execute a document (including a deed), an 26 incorporated limited partnership may execute a document -- 27 (a) if the document is signed by a general partner -- 28 without using a common seal (whether it has one or 29 not); or page 57 Limited Partnerships Bill 2016 Part 4 Incorporated limited partnerships Division 8 Miscellaneous s. 76 1 (b) if the document is expressed to be executed as a deed 2 and is executed with the use of a common seal or under 3 paragraph (a) -- as a deed. 4 76. Enforcing judgments 5 An enforcement order must not be made under the Civil 6 Judgments Enforcement Act 2004 Part 4 in relation to any 7 available debt in relation to, or any property of, an incorporated 8 limited partnership, unless it is made for the purpose of 9 enforcing a judgment against the partnership itself. 10 77. Proper party to proceeding 11 A limited partner in an incorporated limited partnership, in the 12 capacity of a limited partner, is not a proper party to any 13 proceeding commenced in a court or tribunal by or against the 14 incorporated limited partnership, other than a proceeding 15 commenced by -- 16 (a) the incorporated limited partnership against the limited 17 partner; or 18 (b) the limited partner against the incorporated limited 19 partnership. page 58 Limited Partnerships Bill 2016 General Part 5 Register and registration Division 1 s. 78 1 Part 5 -- General 2 Division 1 -- Register and registration 3 78. Register 4 (1) The Commissioner must keep a register of limited partnerships 5 and incorporated limited partnerships registered under this Act. 6 (2) Subject to subsection (3), the register may be kept in the manner 7 and form determined by the Commissioner. 8 (3) The register must include a division for limited partnerships and 9 a division for incorporated limited partnerships. 10 (4) A person may, on payment of the prescribed fee (if any), inspect 11 a copy of the register at the office of the Commissioner during 12 the ordinary business hours of that office. 13 (5) The Commissioner may make the register publicly available, 14 free of charge, on a website maintained by or on behalf of the 15 office of the Commissioner. 16 (6) The Commissioner may withhold a person's personal 17 information from the copy of the register that is available for 18 inspection under subsection (4) or that is publicly available 19 under subsection (5) in prescribed circumstances. 20 (7) In subsection (6) -- 21 personal information has the meaning given in the Freedom of 22 Information Act 1992 Glossary clause 1. 23 79. Power to make or correct certain entries in register 24 (1) The Commissioner may correct any error or omission in the 25 register by -- 26 (a) inserting an entry; or 27 (b) amending an entry; or 28 (c) deleting an entry. page 59 Limited Partnerships Bill 2016 Part 5 General Division 1 Register and registration s. 80 1 (2) The Commissioner must not delete an entry in the register 2 unless satisfied that the whole of the entry was included in error. 3 (3) If the Commissioner deletes an entry from the register under 4 subsection (1) that records -- 5 (a) the cancellation of the registration of a limited 6 partnership -- the limited partnership is taken to have 7 been registered as if the entry had never been made; or 8 (b) the cancellation of the registration of an incorporated 9 limited partnership -- the incorporated limited 10 partnership is taken to have been registered as if the 11 entry had never been made. 12 (4) If court proceedings are pending against a person under 13 section 88, 89 or 90, the Commissioner may insert an entry to 14 that effect in the register. 15 (5) If the Commissioner makes or corrects an entry in the register 16 under this section in relation to a limited partnership or 17 incorporated limited partnership, the Commissioner must give 18 the partnership notice of the entry or correction. 19 80. Reinstatement of registration 20 (1) If the Commissioner is satisfied that the registration of a limited 21 partnership or incorporated limited partnership should not have 22 been cancelled under section 31, 32 or 69, the Commissioner 23 may, by notice given to the limited partnership or incorporated 24 limited partnership, reinstate the partnership's registration. 25 (2) The Commissioner must, as soon as practicable after reinstating 26 the registration of a limited partnership or incorporated limited 27 partnership under subsection (1), record in the register -- 28 (a) the reinstatement; and 29 (b) the day on which the reinstatement took effect, being the 30 day on which the notice was given to the limited 31 partnership or incorporated limited partnership under 32 subsection (1). page 60 Limited Partnerships Bill 2016 General Part 5 Certificates of registration Division 2 s. 81 1 (3) If the registration of a limited partnership or incorporated 2 limited partnership is reinstated under this section the 3 partnership is taken to have continued in existence as if the 4 partnership's registration had not been cancelled. 5 (4) The regulations may make provision of a savings or transitional 6 nature consequent on the reinstatement of the registration of a 7 limited partnership or incorporated limited partnership under 8 this section. 9 81. Entry in register constitutes notice 10 An entry in the register of any particular fact concerning a 11 limited partnership or incorporated limited partnership, 12 including an entry stating the effect of a notice received by the 13 Commissioner -- 14 (a) is sufficient notice of the fact or of the effect of the 15 notice to all persons who deal with the partnership; and 16 (b) in relation to a limited partnership -- has effect, for the 17 purposes of the Partnership Act section 47(2) as if it 18 were an advertisement in the Gazette. 19 Division 2 -- Certificates of registration 20 82. Certificate of registration to be issued 21 (1) The Commissioner must issue to the general partners of a 22 limited partnership or incorporated limited partnership a 23 certificate as to its formation and its registered particulars as at 24 the time of -- 25 (a) registering the limited partnership or incorporated 26 limited partnership; or 27 (b) recording a change in its registered particulars. 28 (2) The Commissioner may, on application, issue to the applicant a 29 certificate in relation to a limited partnership or incorporated 30 limited partnership as to its formation and its registered 31 particulars as at the time of the application. page 61 Limited Partnerships Bill 2016 Part 5 General Division 2 Certificates of registration s. 83 1 (3) A certificate under this section must be in the form approved by 2 the Commissioner. 3 (4) A certificate under this section -- 4 (a) as to the formation of a limited partnership or 5 incorporated limited partnership is conclusive evidence 6 that the partnership was formed on the day of 7 registration referred to in the certificate; and 8 (b) as to the registered particulars as at a specified time of 9 the partnership is (unless the contrary is established) 10 conclusive evidence that the partnership existed at that 11 time; and 12 (c) as to the general partners and limited partners in a 13 limited partnership or incorporated limited partnership 14 as at a specified time is (unless the contrary is 15 established) conclusive evidence of the general partners 16 and limited partners as at that time; and 17 (d) as to any other particular of a limited partnership or 18 incorporated limited partnership recorded in the register 19 as at a specified time is (unless the contrary is 20 established) conclusive evidence of that particular as at 21 that time. 22 83. Certificate of registration to be displayed 23 (1) The certificate of registration of a limited partnership or 24 incorporated limited partnership, or a copy of that certificate, 25 must be displayed in a conspicuous position -- 26 (a) in the registered office of the partnership; or 27 (b) if there is no registered office of the partnership -- in 28 the principal office in this State of the partnership. 29 (2) If subsection (1) is not complied with, each general partner in 30 the partnership commits an offence. 31 Penalty for this subsection: a fine of $3 000. page 62 Limited Partnerships Bill 2016 General Part 5 Change in registered particulars Division 3 s. 84 1 Division 3 -- Change in registered particulars 2 84. Notice of change in registered particulars 3 (1) If any change occurs in relation to the registered particulars of a 4 limited partnership or incorporated limited partnership, every 5 general partner in the partnership must ensure that a notice 6 setting out the changed particulars is lodged with the 7 Commissioner within 7 days after the day on which the change 8 occurs. 9 (2) If subsection (1) is not complied with, each general partner in 10 the partnership commits an offence. 11 Penalty for this subsection: a fine of $1 500. 12 (3) The notice must be in the form approved by the Commissioner 13 and contain all the particulars that are required by the form or 14 prescribed. 15 (4) The notice must be signed by all the general partners or by a 16 general partner authorised by all the general partners for the 17 purposes of this section. 18 (5) In the case of a limited partnership, if the change relates to the 19 admission of a limited partner or a change in the agreed 20 contribution of a limited partner, the notice must also be 21 signed -- 22 (a) by the limited partner concerned; or 23 (b) if that limited partner is a limited partnership, by -- 24 (i) all the general partners in the limited partnership; 25 or 26 (ii) a general partner in the limited partnership 27 authorised by all the general partners in the 28 limited partnership for the purposes of this 29 section. page 63 Limited Partnerships Bill 2016 Part 5 General Division 4 Restrictions on members s. 85 1 85. Change in agreed contribution of limited partner 2 Without limitation, a change occurs in relation to the registered 3 particulars of a limited partnership if there is a change in the 4 amount of the agreed contribution of a limited partner in the 5 limited partnership that is paid, and the amount of that 6 contribution that is unpaid, as a result of -- 7 (a) the limited partner making a contribution towards the 8 agreed contribution; or 9 (b) the limited partner receiving back the whole or part of a 10 contribution towards the agreed contribution. 11 86. Register to record change in registered particulars 12 If a notice is lodged in accordance with section 84, the 13 Commissioner must record in the register the changed 14 particulars set out in the notice. 15 Division 4 -- Restrictions on members 16 87. Terms used 17 In this Division -- 18 manage a limited partnership or manage an incorporated 19 limited partnership means -- 20 (a) to make, or to participate in making, decisions that 21 affect the whole, or a substantial part, of the business of 22 the partnership; or 23 (b) to exercise the capacity to affect significantly the 24 partnership's financial standing; or 25 (c) to communicate instructions or wishes (other than 26 advice given in the proper performance of functions 27 attaching to a professional capacity or a business 28 relationship with the partners or the partnership) to the 29 partners of the partnership -- 30 (i) knowing that the partners are accustomed to act 31 in accordance with the instructions or wishes; or page 64 Limited Partnerships Bill 2016 General Part 5 Restrictions on members Division 4 s. 88 1 (ii) intending that the partners will act in accordance 2 with the instructions or wishes. 3 88. Restrictions on insolvents 4 (1) In this section -- 5 insolvent means -- 6 (a) in relation to an individual -- an insolvent under 7 administration as defined in the Corporations Act 8 section 9; and 9 (b) in relation to a body corporate -- an 10 externally-administered body corporate as defined in the 11 Corporations Act section 9; and 12 (c) in relation to a partnership -- a partnership that has an 13 insolvent general partner. 14 (2) An insolvent must not, except with the leave of the 15 Commissioner -- 16 (a) be a general partner in a limited partnership or 17 incorporated limited partnership; or 18 (b) manage a limited partnership or manage an incorporated 19 limited partnership. 20 Penalty for this subsection: a fine of $10 000 and imprisonment 21 for 1 year. 22 89. Restrictions on convicted persons 23 (1) In this section -- 24 convicted person means a person who has been convicted, 25 whether before, on or after the day on which this section comes 26 into operation and whether in this State or elsewhere, of an 27 offence involving fraud or dishonesty of a kind punishable on 28 conviction with imprisonment for 3 months or more; 29 prescribed period, in relation to a convicted person, means -- 30 (a) the period of 5 years after the person's conviction; or page 65 Limited Partnerships Bill 2016 Part 5 General Division 4 Restrictions on members s. 90 1 (b) if the person served time in prison in respect of their 2 conviction -- the period of 5 years after their release 3 from prison. 4 (2) A convicted person must not, except with the leave of the 5 Commissioner -- 6 (a) be a general partner in a limited partnership or 7 incorporated limited partnership during the prescribed 8 period; or 9 (b) manage a limited partnership or manage an incorporated 10 limited partnership during the prescribed period. 11 Penalty for this subsection: a fine of $10 000 and imprisonment 12 for 1 year. 13 90. Restrictions on disqualified persons 14 (1) In this section -- 15 disqualified person means a person who -- 16 (a) has been convicted of an offence, whether before, on or 17 after the day on which this section comes into operation 18 and whether in this State or elsewhere, and is in prison 19 serving a sentence of imprisonment; or 20 (b) has been convicted of an offence under this Act that is 21 prescribed; or 22 (c) is disqualified from managing corporations under the 23 Corporations Act; or 24 (d) is disqualified in prescribed circumstances from -- 25 (i) being a general partner in a limited partnership or 26 incorporated limited partnership; or 27 (ii) managing a limited partnership or incorporated 28 limited partnership. page 66 Limited Partnerships Bill 2016 General Part 5 Restrictions on members Division 4 s. 91 1 (2) A disqualified person must not, except with the leave of the 2 Commissioner -- 3 (a) be a general partner in a limited partnership or 4 incorporated limited partnership; or 5 (b) manage a limited partnership or incorporated limited 6 partnership. 7 Penalty for this subsection: a fine of $10 000 and imprisonment 8 for 1 year. 9 91. Contravention does not affect liability 10 A contravention of section 88, 89 or 90 does not affect any 11 liability imposed by or arising under another provision of this 12 Act. 13 92. Leave of Commissioner 14 (1) An application for leave for the purposes of section 88, 89 or 90 15 must be -- 16 (a) made in writing; and 17 (b) lodged with the Commissioner. 18 (2) The application may request that the Commissioner grant leave 19 with effect from a day specified in the application. 20 (3) The application must be made at least 21 days before any day 21 specified in the application under subsection (2). 22 (4) On an application under subsection (1), the Commissioner may, 23 by notice to the applicant -- 24 (a) grant leave subject to any condition or limitation the 25 Commissioner considers appropriate, including a 26 limitation on the period for which leave is granted; or 27 (b) refuse to grant leave. 28 (5) A person who contravenes any condition or limitation imposed 29 under subsection (4) commits an offence. 30 Penalty for this subsection: a fine of $10 000. page 67 Limited Partnerships Bill 2016 Part 5 General Division 5 Reviews s. 93 1 93. Revoking leave of Commissioner 2 (1) The Commissioner may at any time revoke leave granted under 3 section 92(4) by notice to the person granted leave. 4 (2) Nothing in section 96 prevents the Commissioner from revoking 5 leave at any time after an application for review is made under 6 that section. 7 Division 5 -- Reviews 8 94. Terms used 9 In this Division -- 10 affected person, in relation to a reviewable decision, means a 11 person who is an affected person in relation to the decision 12 under section 95(1)(b) or regulations made for the purposes of 13 section 95(2)(b); 14 reviewable decision means a decision referred to in 15 section 95(1)(a) or (2)(a). 16 95. Reviewable decisions 17 (1) For the purposes of this Division -- 18 (a) a decision of the Commissioner to do something referred 19 to in column 1 in the Table is a reviewable decision; and 20 (b) a person referred to in column 2 of the Table is an 21 affected person in relation to the corresponding 22 reviewable decision referred to in column 1 of the Table. 23 Table Item Column 1 Column 2 Reviewable decision Affected person 1. Refuse to register a limited The applicant for partnership under section 17(2) registration as a limited partnership page 68 Limited Partnerships Bill 2016 General Part 5 Reviews Division 5 s. 95 Item Column 1 Column 2 Reviewable decision Affected person 2. Record the dissolution or A person whose interests are cessation of a limited affected by the decision partnership in the register under section 29(4) 3. Refuse to register an The applicant for incorporated limited registration as an partnership under section 46(2) incorporated limited partnership 4. Give a winding up notice to an A person whose interests are incorporated limited affected by the decision partnership under section 58 5. Record the winding up of an A person whose interests are incorporated limited affected by the decision partnership in the register under section 68(4) 6. Grant leave under section 92(4) A person whose interests are affected by the decision 7. Revoke leave under A person whose interests are section 93(1) affected by the decision 1 (2) The regulations may provide -- 2 (a) that specified decisions made under the regulations are 3 reviewable decisions for the purposes of this Division; 4 and 5 (b) that specified persons are affected persons in relation to 6 those decisions. page 69 Limited Partnerships Bill 2016 Part 5 General Division 6 Offences s. 96 1 96. Review of reviewable decisions 2 An affected person may apply to the State Administrative 3 Tribunal for review of a reviewable decision. 4 Division 6 -- Offences 5 97. Giving false or misleading information 6 A person who lodges, or causes to be lodged, with the 7 Commissioner under this Act a document that the person knows 8 is false or misleading in a material particular, whether by way of 9 a statement in the document or an omission from the document, 10 commits an offence. 11 Penalty: a fine of $10 000. 12 98. Offences by partnership 13 (1) This section applies if this Act provides that a general partner in 14 a limited partnership or incorporated limited partnership 15 commits an offence. 16 (2) If the general partner is a partnership (including an external 17 partnership) the reference to the general partner is to be read as 18 a reference -- 19 (a) if the partnership is one in which any partner has under 20 the law of the place where it is formed limited liability 21 for the liabilities of the partnership -- to each partner in 22 the partnership whose liability is not so limited; or 23 (b) otherwise -- to each partner in the partnership. 24 (3) In any proceeding against a partner for an offence under this Act 25 brought in accordance with subsection (2), it is a defence for the 26 partner to prove that the partner took all reasonable precautions 27 and exercised all due diligence to avoid the commission of the 28 offence. page 70 Limited Partnerships Bill 2016 General Part 5 Miscellaneous Division 7 s. 99 1 99. Time for bringing proceedings for offences 2 Proceedings for an offence under this Act must be commenced 3 within 3 years after the day on which the offence is alleged to 4 have been committed. 5 Division 7 -- Miscellaneous 6 100. How notices may be given 7 (1) A notice under this Act must be given in writing. 8 (2) A notice under this Act may be given to a limited partnership or 9 incorporated limited partnership -- 10 (a) by leaving it at or sending it by pre-paid post to the 11 partnership's registered office; or 12 (b) if it is not reasonably practicable to serve notice under 13 paragraph (a) -- by publishing it in a manner the 14 Commissioner considers appropriate. 15 (3) A notice under this Act may be given to the partners in a limited 16 partnership or incorporated limited partnership -- 17 (a) by leaving it at or sending it by pre-paid post to the 18 partnership's registered office; or 19 (b) if it is not reasonably practicable to give notice under 20 paragraph (a) -- by publishing it in a manner the 21 Commissioner considers appropriate. 22 101. How consent may be given 23 (1) Any consent or authority that is required or permitted to be 24 given under this Act may be either express or inferred from a 25 course of dealing. 26 (2) Any consent or authority that is, under this Act or the 27 Partnership Act, required or permitted to be given by a partner 28 in a limited partnership or incorporated limited partnership may 29 be given by that partner by or under the partnership 30 agreement -- 31 (a) in relation to all cases; or page 71 Limited Partnerships Bill 2016 Part 5 General Division 7 Miscellaneous s. 102 1 (b) in relation to all cases subject to specified exceptions; or 2 (c) in relation to any specified case or class of cases. 3 (3) Any consent or authority that is, under this Act or the 4 Partnership Act, required or permitted to be given by a limited 5 partnership or incorporated limited partnership may be given by 6 a general partner in the partnership acting in accordance with 7 the partnership agreement. 8 (4) Subsections (2) and (3) do not limit any other way in which 9 consent or authority may be given. 10 102. Registered office 11 (1) A limited partnership or incorporated limited partnership must 12 keep at its registered office an office to which all 13 communications with the partnership may be addressed. 14 (2) If subsection (1) is not complied with, each general partner in 15 the limited partnership or incorporated limited partnership 16 commits an offence. 17 Penalty for this subsection: a fine of $3 000. 18 103. Service 19 (1) A document concerning the business of a limited partnership or 20 incorporated limited partnership may be served on the partners 21 in the partnership by leaving it at, or by sending it by post 22 addressed to -- 23 (a) the registered office of the partnership; or 24 (b) if there is no registered office of the partnership -- the 25 principal office in this State of the partnership. 26 (2) This section does not affect any other method of serving 27 documents on a limited partnership or incorporated limited 28 partnership. 29 (3) This section does not apply to a document relating to 30 proceedings before a court or the State Administrative Tribunal. page 72 Limited Partnerships Bill 2016 General Part 5 Miscellaneous Division 7 s. 104 1 104. Lodgment of documents 2 (1) A document is not lodged under this Act unless -- 3 (a) all information required to be provided in or with the 4 document is provided; and 5 (b) the prescribed fee (if any) has been paid. 6 (2) The Commissioner may reject a document lodged with the 7 Commissioner if the Commissioner considers that the 8 document -- 9 (a) contains matter contrary to law; or 10 (b) contains matter that, in a material particular, is false or 11 misleading in the form or context in which it is included; 12 or 13 (c) because of an omission or misdescription, is incomplete; 14 or 15 (d) does not comply with the requirements of this Act; or 16 (e) contains any error, alteration or erasure; or 17 (f) if the document is in electronic form -- is not readily 18 accessible so as to be useable by the Commissioner. 19 (3) If the Commissioner rejects a document under subsection (2), 20 the Commissioner may request -- 21 (a) that the document be appropriately amended; or 22 (b) that a fresh document be lodged in its place; or 23 (c) if the document is incomplete -- that a supplementary 24 document in the form approved by the Commissioner be 25 lodged. 26 105. Signing of documents 27 (1) A document lodged with the Commissioner is taken to have 28 been signed by a person required to sign the document if -- 29 (a) for a document that is required to be signed by an 30 individual -- the document is signed by another person page 73 Limited Partnerships Bill 2016 Part 5 General Division 7 Miscellaneous s. 106 1 authorised by the individual in writing to sign on the 2 individual's behalf; or 3 (b) for a document that is required to be signed by a body 4 corporate -- the document is signed by an officer of the 5 body corporate or a person authorised by an officer of 6 the body corporate in writing to sign on behalf of the 7 body corporate. 8 (2) A person must, if required by the Commissioner, show the 9 written authorisation to the Commissioner. 10 (3) Despite any other provision of this Act, if the Commissioner is 11 satisfied that it is not practicable to obtain the signature of a 12 person required by this Act to sign a document, the 13 Commissioner may accept the document without its being 14 signed by that person, but the person is not relieved of the 15 requirement to sign the document. 16 (4) If a copy of a document has been received by the Commissioner 17 for the purposes of lodgment under this Act, it is sufficient 18 compliance with a requirement for the document to be signed if 19 the original document is signed. 20 106. Business documents 21 (1) In this section -- 22 business document includes any letter, notice, publication, 23 written offer, contract, order for goods or services, invoice, bill 24 of exchange, promissory note, cheque, negotiable instrument, 25 endorsement, letter of credit, receipt or statement of account. 26 (2) A business document issued on behalf of a limited partnership 27 in connection with the conduct of the partnership business must 28 contain in legible letters of similar print size -- 29 (a) the firm name of the partnership; and 30 (b) the words "A Limited Partnership" (or "L.P." or "LP" as 31 an abbreviation) immediately adjacent to the firm name. page 74 Limited Partnerships Bill 2016 General Part 5 Miscellaneous Division 7 s. 107 1 (3) Subsection (2)(b) is taken to be complied with if the words 2 "Limited Partnership" or the abbreviation "L.P." or "LP" forms 3 part of the firm name. 4 (4) A business document issued on behalf of an incorporated 5 limited partnership in connection with the conduct of the 6 partnership business must contain in legible letters of similar 7 print size -- 8 (a) the firm name of the partnership; and 9 (b) the words "An Incorporated Limited Partnership" (or 10 "I.L.P." or "ILP" as an abbreviation) immediately 11 adjacent to the firm name. 12 (5) Subsection (4)(b) is taken to be complied with if the words 13 "Incorporated Limited Partnership" or the abbreviation "I.L.P." 14 or "ILP" forms part of the firm name. 15 (6) A person who issues, or authorises the issue of, a business 16 document that the person knows contravenes subsection (2) 17 or (4) commits an offence. 18 Penalty for this subsection: a fine of $3 000. 19 (7) A general partner in a limited partnership or incorporated 20 limited partnership commits an offence if -- 21 (a) a business document is issued on behalf of the limited 22 partnership or incorporated limited partnership; and 23 (b) the general partner knows that the business document 24 contravenes subsection (2) or (4). 25 Penalty for this subsection: a fine of $3 000. 26 107. Inspection of accounts and financial records 27 (1) A partner in a limited partnership or incorporated limited 28 partnership or a person authorised by the partner may at any 29 time -- 30 (a) have access to, inspect and copy any of the accounts and 31 financial records of the partnership; and page 75 Limited Partnerships Bill 2016 Part 5 General Division 8 Application of other written laws s. 108 1 (b) examine the state and prospects of the partnership 2 business; and 3 (c) advise and consult with other partners regarding the 4 matters referred to in paragraphs (a) and (b). 5 (2) The application of this section may be varied in relation to a 6 limited partnership or incorporated limited partnership by a 7 partnership agreement or with the consent of the partners in the 8 limited partnership or incorporated limited partnership. 9 Division 8 -- Application of other written laws 10 108. Application of Fair Trading Act 11 (1) The Fair Trading Act sections 60 and 61, Part 6 (other than 12 section 77 and Division 4A), section 112 (other than 13 subsection (3)(c)(ii), (da) and (f)) and sections 113, 114 and 115 14 apply, with any modifications that are necessary for the 15 purposes of this Act, as if those provisions were a part of this 16 Act. 17 (2) For the purposes of subsection (1), the Fair Trading Act is to be 18 read as if -- 19 (a) a reference to "this Act" were a reference to this Act; 20 and 21 (b) a reference in Part 6 (other than Division 4A) to an 22 authorised person were a reference to an authorised 23 person as defined in section 3; and 24 (c) a reference in Part 6 to "this Part" were a reference to 25 this section; and 26 (d) the words "or another Act" or "or another Act that 27 confers functions on the Commissioner" in Part 6 were 28 deleted; and 29 (e) the words "or 4A" in section 88(1) were deleted; and 30 (f) section 89(2A) were deleted; and 31 (g) the words "or 88E" in section 89(2) were deleted; and page 76 Limited Partnerships Bill 2016 General Part 5 Regulations and orders Division 9 s. 109 1 (h) section 89(5A) were deleted. 2 109. Application of Criminal Procedure Act 2004 3 (1) If this Act is a prescribed Act for the purposes of the Criminal 4 Procedure Act 2004 Part 2, this section applies in relation to the 5 service of an infringement notice under that Part by an 6 authorised officer in relation to an alleged offence under this 7 Act. 8 (2) The infringement notice must be served within -- 9 (a) 21 days after the day on which the authorised officer is 10 satisfied that there is sufficient evidence to support the 11 allegation of the offence; and 12 (b) 6 months after the alleged offence is believed to have 13 been committed. 14 (3) The Criminal Procedure Act 2004 Part 2 is modified to the 15 extent necessary to give effect to this section. 16 Division 9 -- Regulations and orders 17 110. Regulations 18 (1) The Governor may make regulations prescribing matters -- 19 (a) required or permitted to be prescribed by this Act; or 20 (b) necessary or convenient to be prescribed for giving 21 effect to this Act. 22 (2) Regulations may be made for or in relation to any of the 23 following -- 24 (a) the conduct and regulation of registration under this Act; 25 (b) the manner in which a limited partnership or 26 incorporated limited partnership must keep accounts and 27 financial records; 28 (c) the matters in respect of which fees may be charged, the 29 amounts of those fees and persons liable for payment of 30 those fees; page 77 Limited Partnerships Bill 2016 Part 5 General Division 9 Regulations and orders s. 111 1 (d) information or copies of records or documents required 2 to be provided to the Commissioner by a limited 3 partnership or incorporated limited partnership; 4 (e) the form in which any record required under this Act to 5 be kept must be kept; 6 (f) the hours during which the registered office of a limited 7 partnership or incorporated limited partnership must be 8 open and accessible to the public; 9 (g) the lodgment of annual returns by a limited partnership 10 or incorporated limited partnership; 11 (h) the manner in which a person may apply for leave under 12 section 92; 13 (i) the method by which documents may be lodged with the 14 Commissioner. 15 111. Regulations prescribing model limited partnership 16 agreement 17 Regulations may prescribe a model limited partnership 18 agreement. 19 112. Regulations relating to Corporations Act 20 Regulations may declare a matter dealt with, provided for, done 21 or occurring under this Act or the regulations to be an excluded 22 matter for the purposes of the Corporations Act section 5F in 23 relation to -- 24 (a) the whole of the Corporations legislation to which the 25 Corporations Act Part 1.1A applies; or 26 (b) a specified provision of that legislation; or 27 (c) that legislation other than a specified provision; or 28 (d) that legislation otherwise than to a specified extent. page 78 Limited Partnerships Bill 2016 General Part 5 Regulations and orders Division 9 s. 113 1 113. Orders declaring corresponding law 2 (1) The Governor may, by order published in the Gazette, declare a 3 law of another State, a Territory or another country or 4 jurisdiction to be a corresponding law for the purposes of this 5 Act in relation to either or both of the following -- 6 (a) limited partnerships; 7 (b) incorporated limited partnerships. 8 (2) The law of another country or jurisdiction (other than another 9 State or a Territory) cannot be declared to be a corresponding 10 law unless the Minister has certified to the Governor that the 11 law provides for the limitation of liability of certain partners in 12 certain partnerships or legal entities in the nature of 13 incorporated limited partnerships. 14 (3) The law of another State or a Territory cannot be declared to be 15 a corresponding law unless the Minister has certified to the 16 Governor that -- 17 (a) the provisions of the law are similar to the provisions of 18 this Act; and 19 (b) under that law the limitation of liability of limited 20 partners in a limited partnership formed under this Act 21 extends to any liability incurred in connection with the 22 conduct of the partnership's business in that State or 23 Territory, or will so extend if this Act is declared to be a 24 corresponding law under that law. 25 (4) This section is additional to, and does not detract from, any rule 26 of law under which recognition is or may be given to a 27 limitation of liability of a partner in a partnership (including an 28 external partnership). page 79 Limited Partnerships Bill 2016 Part 6 Repeals and transitional matters s. 114 1 Part 6 -- Repeals and transitional matters 2 114. Terms used 3 In this Part -- 4 commencement day means the day on which section 115 comes 5 into operation; 6 existing limited partnership -- 7 (a) means a partnership that, immediately before 8 commencement day, was registered as a limited 9 partnership under the repealed Act; and 10 (b) includes a partnership that, immediately before 11 commencement day, had sent or delivered a statement in 12 accordance with the repealed Act section 8; 13 repealed Act means the Limited Partnerships Act 1909 repealed 14 by section 115(1). 15 115. Written laws repealed 16 (1) The Limited Partnerships Act 1909 is repealed. 17 (2) The Limited Partnerships Rules 1909 are repealed. 18 116. Existing limited partnerships 19 (1) An existing limited partnership is taken to be a limited 20 partnership under this Act. 21 (2) An existing limited partnership must, not later than 90 days after 22 commencement day, lodge with the Commissioner a statement 23 that -- 24 (a) is in the form approved by the Commissioner; and 25 (b) is signed by each partner; and 26 (c) contains each of the matters set out in subsection (3). page 80 Limited Partnerships Bill 2016 Repeals and transitional matters Part 6 s. 116 1 (3) A statement lodged under subsection (2) must contain, in 2 relation to the existing limited partnership, each of the following 3 matters -- 4 (a) the address of the principal office in this State of the 5 partnership; 6 (b) the name of each partner, being -- 7 (i) if the partner is an individual -- their full name; 8 or 9 (ii) if the partner is a body corporate -- its corporate 10 name; or 11 (iii) if the partner is a partnership -- the firm name 12 or, if the partnership does not have a firm name, 13 the full name of each partner in the partnership; 14 (c) the address of each partner, being -- 15 (i) if the partner is an individual -- their principal 16 place of residence; or 17 (ii) if the partner is a body corporate -- its registered 18 office as defined in the Corporations Act 19 section 9; or 20 (iii) if the partner is a partnership -- its principal 21 office; 22 (d) a statement in relation to each partner as to -- 23 (i) whether they are a general partner or a limited 24 partner; and 25 (ii) whether they are an individual, body corporate or 26 partnership; 27 (e) in relation to each limited partner -- 28 (i) a statement of their agreed contribution; and 29 (ii) a statement to the effect that their liability to 30 contribute is limited to their agreed contribution; 31 and page 81 Limited Partnerships Bill 2016 Part 6 Repeals and transitional matters s. 117 1 (iii) a statement of the amount of their agreed 2 contribution that has been paid and the amount of 3 their agreed contribution that is unpaid; 4 (f) any other particulars that are required by the form or 5 prescribed. 6 (4) The Commissioner must, in relation to a statement lodged under 7 subsection (2) -- 8 (a) record in the register the particulars contained in the 9 statement; and 10 (b) issue to the general partners of the partnership that 11 lodged the statement a certificate as to its formation and 12 its registered particulars as at the time of recording in 13 the register the particulars contained in the statement. 14 (5) Section 84(1) does not apply in relation to any changed 15 particulars contained in a statement lodged under subsection (2). 16 117. Existing register 17 (1) In this section -- 18 existing register means the register kept under the repealed Act 19 section 14. 20 (2) The existing register forms part of the register. 21 (3) The Commissioner may make any changes to the form of the 22 existing register that the Commissioner considers necessary for 23 the purposes of this Act. 24 118. Existing statements 25 (1) In this section -- 26 existing statement means a statement that was sent or delivered 27 in accordance with the repealed Act before commencement day; 28 Registrar means the Registrar under the repealed Act. page 82 Limited Partnerships Bill 2016 Repeals and transitional matters Part 6 s. 119 1 (2) The Registrar must -- 2 (a) in relation to an existing statement received before 3 commencement day -- comply with the repealed Act 4 sections 13 and 14; and 5 (b) in relation to an existing statement received on or after 6 commencement day -- provide the statement to the 7 Commissioner. 8 (3) The Commissioner must, in relation to a statement provided by 9 the Registrar under subsection (2)(b) -- 10 (a) record in the register the particulars contained in the 11 statement; and 12 (b) issue to the general partners of the partnership that 13 lodged the statement a certificate as to its formation and 14 its registered particulars as at the time of recording in 15 the register the particulars contained in the statement. 16 (4) Section 84(1) does not apply in relation to any changed 17 particulars contained in an existing statement. 18 119. Time limit under section 99 19 Section 99 does not apply to an offence committed under the 20 repealed Act. 21 120. Leave taken to have been granted under section 92(4) 22 (1) Subsection (2) applies to a person (a relevant person) who at 23 the beginning of commencement day -- 24 (a) is a person to whom section 88, 89 or 90 applies; and 25 (b) is a general partner in or manages a limited partnership. 26 (2) The relevant person is taken to have been granted leave under 27 section 92(4) for the period of 6 months beginning on 28 commencement day. page 83 Limited Partnerships Bill 2016 Part 6 Repeals and transitional matters s. 121 1 (3) If the relevant person makes an application under section 92 2 within the period referred to in subsection (2), the leave referred 3 to in that subsection -- 4 (a) continues to have effect, whether or not the period 5 referred to in subsection (2) expires, until the application 6 is determined; and 7 (b) is cancelled by force of this subsection at the time of 8 that determination. 9 121. Transitional regulations 10 (1) In this section -- 11 specified means specified or described in the regulations; 12 transitional matter -- 13 (a) means a matter or issue of a transitional nature that 14 arises as a result of the enactment of this Act; and 15 (b) includes a saving or application matter. 16 (2) The regulations may make provision for a transitional matter if 17 there is no sufficient provision made in this Part for the matter. 18 (3) A regulation made for the purposes of this section cannot come 19 into operation more than 2 years after commencement day. 20 (4) Regulations made for the purposes of this section may provide 21 that a specified provision of this Act -- 22 (a) is not to apply to or in relation to a matter; or 23 (b) is to apply, with any specified modifications, to or in 24 relation to a matter. 25 (5) Regulations made for the purposes of this section may provide 26 that a state of affairs is taken to have existed, or not to have 27 existed, on and from a day that is -- 28 (a) earlier than the day on which the regulations are 29 published in the Gazette; but 30 (b) not earlier than commencement day. page 84 Limited Partnerships Bill 2016 Repeals and transitional matters Part 6 s. 121 1 (6) A provision referred to in subsection (5) does not operate so as 2 to -- 3 (a) affect in a manner prejudicial to any person (other than 4 the State) the rights of that person existing before the 5 day on which the regulations are published in the 6 Gazette; or 7 (b) impose liabilities on any person (other than the State) in 8 respect of anything done or omitted to be done before 9 that day. 10 (7) If the Minister is satisfied that an anomaly arises in giving effect 11 to any provision of this Part, regulations made for the purposes 12 of this section may -- 13 (a) modify that provision to remove the anomaly; and 14 (b) make any provision that is necessary or expedient to 15 carry out the intention of that provision. page 85 Limited Partnerships Bill 2016 Part 7 Partnership Act 1895 amended s. 122 1 Part 7 -- Partnership Act 1895 amended 2 122. Partnership Act 1895 amended 3 (1) This Part amends the Partnership Act 1895. 4 (2) In section 3 insert in alphabetical order: 5 6 incorporated limited partnership has the meaning 7 given in the Limited Partnerships Act 2016 section 3; 8 limited partnership has the meaning given in the 9 Limited Partnerships Act 2016 section 3; 10 11 (3) In section 4 delete "This" and insert: 12 13 (1) Subject to subsections (2) and (3), this 14 15 (4) At the end of section 4 insert: 16 17 (2) This Act applies to a limited partnership to the extent 18 and with the modifications set out in the Limited 19 Partnerships Act 2016 section 6. 20 (3) This Act applies to an incorporated limited partnership 21 to the extent and with the modifications set out in the 22 Limited Partnerships Act 2016 sections 8 and 9. 23 24 (5) In section 7(1) delete "Partnership" and insert: 25 26 Subject to subsection (3), partnership 27 page 86 Limited Partnerships Bill 2016 Partnership Act 1895 amended Part 7 s. 122 1 (6) After section 7(2) insert: 2 3 (3) Partnership does not include the relation which subsists 4 between -- 5 (a) the partners in an incorporated limited 6 partnership; or 7 (b) an incorporated limited partnership and its 8 partners. 9 page 87 Limited Partnerships Bill 2016 Defined terms Defined terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined term Provision(s) affected person .................................................................................................... 94 AFOF .................................................................................................................... 3 agreed contribution ............................................................................................... 3 ASIC .............................................................................................................. 66(1) ASIC Act ....................................................................................................... 66(1) assets ..................................................................................................................... 3 associate ............................................................................................................ 3, 4 authorised person .................................................................................................. 3 business ................................................................................................................. 3 business document ....................................................................................... 106(1) Business Names Registration Act ......................................................................... 3 commencement day .......................................................................................... 114 Commissioner ....................................................................................................... 3 convicted person ............................................................................................ 89(1) Corporations Act ................................................................................................... 3 corresponding law ................................................................................................. 3 court ...................................................................................................................... 3 disqualified person ......................................................................................... 90(1) ESVCLP ............................................................................................................... 3 existing limited partnership............................................................................... 114 existing register ............................................................................................ 117(1) existing statement ........................................................................................ 118(1) external partnership............................................................................................... 3 Fair Trading Act.................................................................................................... 3 firm name .............................................................................................................. 3 first person ..................................................................................................... 40(4) general law ....................................................................................................... 7(1) general partner ...................................................................................................... 3 Income Tax Assessment Act ................................................................................. 3 incorporated limited partnership ........................................................................... 3 insolvent ......................................................................................................... 88(1) investing partnership ...................................................................................... 18(4) liability .................................................................................................................. 3 limited partner ....................................................................................................... 3 limited partnership ................................................................................................ 3 manage a limited partnership .............................................................................. 87 manage an incorporated limited partnership ....................................................... 87 mental disability ............................................................................................. 26(1) other person ................................................................................................... 72(3) partner ................................................................................................................... 3 page 88 Limited Partnerships Bill 2016 Defined terms partner in the general partner ................................................................................ 4 partner in the limited partner................................................................................. 4 partnership ................................................................................................... 3, 5(1) Partnership Act ..................................................................................................... 3 person.................................................................................................................... 3 personal information ...................................................................................... 78(7) prescribed.............................................................................................................. 3 prescribed period............................................................................................ 89(1) principal partnership ...................................................................................... 18(4) proposed name .................................................................................... 17(2), 46(2) recognised incorporated limited partnership .................................................. 52(1) recognised limited partnership ....................................................................... 22(1) register .................................................................................................................. 3 registered office .................................................................................................... 3 registered particulars ............................................................................................. 3 Registrar ....................................................................................................... 118(1) related body corporate .......................................................................................... 3 relevant committee ......................................................................................... 43(1) relevant person ............................................................................................. 120(1) repealed Act ...................................................................................................... 114 reviewable decision............................................................................................. 94 second person................................................................................................. 40(4) securities ............................................................................................................... 3 security holder ...................................................................................................... 3 show cause notice ................................................................................................. 3 special resolution ........................................................................................... 54(2) specified ....................................................................................................... 121(1) third party....................................................................................................... 42(2) transitional matter ........................................................................................ 121(1) VCLP .................................................................................................................... 3 VCMP ................................................................................................................... 3 winding up notice.................................................................................................. 3
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