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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Partnership Amendment (Venture
Capital Funds) Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Partnership Act 1892 No 12 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Partnership Amendment (Venture
Capital Funds) Bill 2004
Act No , 2004
An Act to amend the Partnership Act 1892 to provide for the formation of
incorporated limited partnerships; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Partnership Amendment (Venture Capital Funds) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Partnership Amendment (Venture Capital Funds)
Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Partnership Act 1892 No 12
The Partnership Act 1892 is amended as set out in Schedule 1.
Page 2
Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 1B Interpretation
Insert in alphabetical order:
general partner is defined in section 49.
incorporated limited partnership is defined in section 49.
limited partner is defined in section 49.
limited partnership is defined in section 49.
[2] Section 1B (2) and (3)
Insert at the end of section 1B:
(2) In this Act, a reference, in relation to an incorporated limited
partnership, to the partnership or the firm is a reference to the
incorporated limited partnership as a separate legal entity and
not to the partners in that partnership.
(3) Notes included in this Act do not form part of this Act.
[3] Section 1C
Insert after section 1B:
1C Application of laws of partnership to incorporated limited
partnerships
Except as provided (whether expressly or by necessary
implication) by this Act or any other enactment, the law
relating to partnership does not apply to or in respect of an
incorporated limited partnership, the partners in an
incorporated limited partnership or to the relationship
between an incorporated limited partnership and its partners.
[4] Section 1 Definition of partnership
Insert "and includes an incorporated limited partnership" after "profit" in
section 1 (1).
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[5] Section 2 Rules for determining existence of partnership
Insert at the end of the section:
(2) This section does not apply to or in respect of an incorporated
limited partnership.
[6] Section 4 Meaning of firms
Insert "other than an incorporated limited partnership" after "partnership".
[7] Section 4, note
Insert at the end of section 4:
Note. On the meaning of "firm" in relation to an incorporated limited
partnership see section 1B (2). On the meaning of "firm-name" of an
incorporated limited partnership see section 49.
[8] Section 5 Power of partner to bind firm
Insert "in a partnership other than a firm that is a limited partnership or
incorporated limited partnership" after "Every partner".
[9] Section 5 (2)
Insert at the end of section 5:
(2) Every general partner in a limited partnership or incorporated
limited partnership is an agent of the firm and of the other
general partners for the purpose of the business of the
partnership, and the acts of every general partner who does
any act for carrying on in the usual way business of the kind
carried on by the firm of which the partner is a member, bind
the firm and the other general partners, unless:
(a) the general partner has in fact no authority to act for the
firm in the particular matter, and
(b) the person with whom the general partner is dealing
either knows that the general partner has no authority,
or does not know or believe the general partner to be a
general partner.
[10] Section 6 Partners bound by acts on behalf of firm
Omit "the firm" where firstly occurring.
Insert instead "a firm other than an incorporated limited partnership".
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[11] Section 6
Omit ": Provided that this section shall not affect any general rule of law
relating to the execution of deeds or negotiable instruments".
[12] Section 6 (2) and (3)
Insert at the end of section 6:
(2) An act or instrument relating to the business of a firm that is
an incorporated limited partnership, and done or executed in
the firm-name, or in any other manner, showing an intention
to bind the firm by any person authorised to bind the firm,
whether a general partner or not, is (subject to section 9 (3))
binding on the firm and all the general partners.
(3) This section does not affect any general rule of law relating to
the execution of deeds or negotiable instruments.
[13] Section 7 Partner using credit of firm for private purposes
Omit "the firm" where firstly occurring.
Insert instead "a firm other than a firm that is an incorporated limited
partnership".
[14] Section 7 (2)
Insert at the end of section 7:
(2) Where a general partner pledges the credit of a firm that is an
incorporated limited partnership for a purpose apparently not
connected with the firm's ordinary course of business, the
firm is not bound unless the general partner is in fact specially
authorised by the firm, but this section does not affect any
personal liability incurred by an individual general partner.
[15] Section 8 Effect of notice that firm will not be bound by acts of
partner
Omit "the firm" where firstly occurring.
Insert instead "a firm other than a firm that is an incorporated limited
partnership".
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[16] Section 8 (2)
Insert at the end of section 8:
(2) If it has been agreed by the partners in an incorporated limited
partnership that any restrictions are to be placed on the power
(if any) of any one or more of them to bind the firm, no act
done in contravention of the agreement is binding on the firm
with respect to persons having notice of the agreement.
[17] Section 9 Liability of partner
Insert "other than an incorporated limited partnership" after "a firm".
[18] Section 9
Insert "(if the partner is an individual)" after "partner; and".
[19] Section 9 (2) and (3)
Insert at the end of section 9:
(2) Every general partner in an incorporated limited partnership
is liable jointly with the incorporated limited partnership for
all debts and obligations of the partnership incurred while the
general partner is a general partner, and (if the general partner
is an individual) after the general partner's death the general
partner's estate is also severally liable in a due course of
administration for such debts or obligations so far as they
remain unsatisfied but subject to the prior payment of the
partner's separate debts.
(3) Despite subsection (2), a general partner in an incorporated
limited partnership is only liable for any debts or obligations
of the incorporated limited partnership:
(a) to the extent the incorporated limited partnership is
unable to satisfy the debts and obligations, or
(b) to a greater extent provided by the partnership
agreement.
[20] Section 10 Liability of firm for wrongs
Insert "in a firm other than an incorporated limited partnership" after "any
partner" in section 10 (1).
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[21] Section 10 (2)
Insert "in a firm other than an incorporated limited partnership" after "a
partner".
[22] Section 10 (3) and (4)
Insert after section 10 (2):
(3) Subject to subsection (4), where by any wrongful act or
omission of any general partner in an incorporated limited
partnership acting in the ordinary course of the business of the
incorporated limited partnership, or with its authority, loss or
injury is caused to any person not being a partner in the
incorporated limited partnership, or any penalty is incurred,
the incorporated limited partnership is liable in respect of that
loss or injury or penalty to the same extent as the general
partner so acting or omitting to act.
(4) For the purposes of subsection (3), a general partner in an
incorporated limited partnership who commits a wrongful act
or omission as a director of a body corporate, within the
meaning of the Corporations Act 2001 of the Commonwealth,
is not to be taken to be acting in the ordinary course of
business of the incorporated limited partnership or with its
authority only because of any one or more of the following:
(a) the general partner obtained the agreement or authority
of the incorporated limited partnership to be appointed
or to act as a director of the body corporate,
(b) remuneration that the general partner receives for
acting as a director of the body corporate forms part of
the income of the incorporated limited partnership,
(c) any other general partner in the incorporated limited
partnership is also a director of that or any other body
corporate.
[23] Section 11 Misapplication of money or property received for or in
the custody of the firm
Insert "involving the partners of a firm other than an incorporated limited
partnership" after "cases".
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[24] Section 11 (2)
Insert at the end of section 11:
(2) In the following cases involving general partners in an
incorporated limited partnership:
(a) where one general partner acting within the scope of the
general partner's apparent authority receives the money
or property of a third person and misapplies it,
(b) when an incorporated limited partnership in the course
of its business receives money or property of a third
person, and the money or property so received is
misapplied by one or more of the general partners while
it is in the custody of the incorporated limited
partnership,
the incorporated limited partnership is liable to make good the
loss.
[25] Section 12 Liability for wrongs joint and several
Insert "in a firm other than an incorporated limited partnership" after
"Every partner".
[26] Section 12 (2) and (3)
Insert at the end of section 12:
(2) Every general partner in an incorporated limited partnership
is liable jointly with the other general partners in the
partnership and also severally for everything for which the
firm becomes liable under section 10 (3) or 11 (2) while the
general partner is a general partner in the firm.
(3) Despite subsection (2), a general partner in an incorporated
limited partnership is only liable for any liability of the
incorporated limited partnership referred to in that subsection:
(a) to the extent the incorporated limited partnership is
unable to satisfy the liability, or
(b) to a greater extent provided by the partnership
agreement.
Page 8
Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[27] Section 13 Improper employment of trust property for partnership
purposes
Insert "in a firm other than an incorporated limited partnership" after "If a
partner".
[28] Section 13 (2) and (3)
Insert at the end of section 13:
(2) If a general partner in an incorporated limited partnership
being a trustee improperly employs trust property in the
business or on account of the partnership, neither the
partnership nor any other general partner is liable for the trust
property to the persons beneficially interested in it.
(3) Subsection (2):
(a) does not affect any liability incurred by any general
partner by reason of the partner's having notice of a
breach of trust, and
(b) does not prevent trust money from being followed and
recovered from the incorporated limited partnership if
still in its possession or under its control.
[29] Section 14 Persons liable by "holding out"
Insert "that is a firm other than a limited partnership or incorporated
limited partnership" after "particular firm" in section 14 (1).
[30] Section 14 (1A)
Insert after section 14 (1):
(1A) Every one who by words spoken or written, or by conduct
represents himself or herself or who knowingly suffers
himself or herself to be represented as a general partner in a
particular firm that is a limited partnership or an incorporated
limited partnership, is liable as a general partner to any one
who has on the faith of any such representation given credit to
the firm, whether the representation has or has not been made
or communicated to the person so giving credit by or with the
knowledge of the apparent general partner making the
representation or suffering it to be made.
Page 9
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[31] Section 15 Admissions and representations of partners
Insert "in a firm other than a limited partnership or incorporated limited
partnership" after "partner".
[32] Section 15 (2)
Insert at the end of section 15:
(2) An admission or representation made by any general partner
in a limited partnership or incorporated limited partnership
concerning the partnership affairs, and in the ordinary course
of its business, is evidence against the firm.
[33] Section 16 Notice to acting partner to be notice to firm
Insert "in a firm other than a limited partnership or incorporated limited
partnership" after "any partner".
[34] Section 16 (2)
Insert at the end of section 16:
(2) Notice to any general partner in a limited partnership or
incorporated limited partnership who habitually acts in the
partnership business of any matter relating to partnership
affairs operates as notice to the firm except in the case of a
fraud on the firm committed by or with the consent of that
partner.
[35] Section 17
Omit the section. Insert instead:
17 Liabilities of incoming and outgoing partners
(1) A person who is admitted as a partner into an existing firm
other than a limited partnership or incorporated limited
partnership does not by that admission alone become liable
for anything done before the person became a partner.
(2) A person who is admitted as a general partner into an existing
limited partnership or incorporated limited partnership does
not by that admission alone become liable for anything done
before the person became a general partner.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(3) A partner who retires from a firm other than a limited
partnership or incorporated limited partnership does not by
that retirement alone cease to be liable for partnership debts
and obligations incurred before the partner's retirement.
(4) A partner who retires from a limited partnership or
incorporated limited partnership does not by that retirement
alone cease to be liable for liabilities of the firm incurred
before the partner's retirement for which the partner was
liable.
Note. Liability is defined in section 49.
(5) A retiring partner in a firm other than a limited partnership or
incorporated limited partnership may be discharged from any
existing liabilities by an agreement to that effect between the
partner and the members of the firm as newly constituted and
the creditors, and this agreement may be either expressed or
inferred as a fact from the course of dealing between the
creditors and the firm as newly constituted.
(6) A retiring partner in a limited partnership or incorporated
limited partnership may be discharged from any existing
liabilities by an agreement to that effect between the partner
and the firm and the creditors, and this agreement may be
either expressed or inferred as a fact from the course of
dealing between the creditors and the firm.
[36] Section 18 Revocation of continuing guaranty by change of firm
Insert at the end of the section:
(2) This section does not apply to or in respect of an incorporated
limited partnership.
[37] Section 20 Partnership property of firms other than incorporated
limited partnerships
Insert after section 20 (3):
(4) This section does not apply to or in respect of an incorporated
limited partnership.
Page 11
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[38] Section 20A
Insert after section 20:
20A Partnership property of incorporated limited partnership
(1) All property, and rights and interests in property, acquired,
whether by purchase or otherwise, on account of an
incorporated limited partnership, or for the purposes and in
the course of the business of the partnership, are called in this
Act partnership property, and must be applied by the
partnership exclusively for the purposes of the partnership.
(2) No partner in an incorporated limited partnership, by virtue
only of being a partner in the partnership, has any legal or
beneficial interest in its partnership property.
[39] Section 22 Conversion into personal estate of land held as
partnership property
Insert at the end of the section:
(2) This section does not apply to or in respect of an incorporated
limited partnership.
[40] Section 23 Procedure against partnership property for a partner's
separate judgment debt
Insert after section 23 (3):
(4) Subsections (2) and (3) do not apply to or in respect of an
incorporated limited partnership.
[41] Section 24 Rules as to the interests and duty of partners other
than partners in incorporated limited partnership subject to
special agreement
Insert at the end of the section:
(2) This section does not apply to or in respect of an incorporated
limited partnership.
[42] Section 26 Retirement from partnership at will
Insert after section 26 (2):
(3) This section does not apply to or in respect of a limited
partnership or incorporated limited partnership.
Page 12
Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[43] Section 27 Where partnership for term is continued over,
continuance on old terms presumed
Insert after section 27 (2):
(3) This section does not apply to or in respect of an incorporated
limited partnership.
[44] Section 28 Duty of partners to render accounts
Insert "in a firm other than an incorporated limited partnership" after
"Partners".
[45] Section 28 (2)
Insert at the end of section 28:
(2) An incorporated limited partnership is, subject to the
partnership agreement, bound to render true accounts and full
information in respect of all things affecting the partnership to
any partner or the partner's legal representatives.
[46] Section 29 Accountability of partners for private profits
Insert after section 29 (2):
(3) This section does not apply to or in respect of an incorporated
limited partnership.
[47] Section 30 Duty of partner not to compete with firm
Insert at the end of the section:
(2) This section does not apply to or in respect of an incorporated
limited partnership.
[48] Section 31 Rights of assignee of share in partnership
Insert after section 31 (2):
(3) This section does not apply to or in respect of an incorporated
limited partnership.
Page 13
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[49] Section 31A
Insert after the heading to Division 4 of Part 2:
31A Division does not apply to incorporated limited partnerships
This Division does not apply to or in respect of an
incorporated limited partnership.
[50] Part 3, heading
Insert "and incorporated limited partnerships" after "partnerships".
[51] Section 49 Interpretation
Omit "Part" where firstly occurring. Insert instead "Act".
[52] Section 49
Omit the definitions of general partner, limited partner, limited
partnership and Register.
Insert in alphabetical order:
external partnership means a partnership (or legal entity,
however described, in the nature of a partnership) formed in
accordance with a law of another State, a Territory or another
country or jurisdiction, whether or not under that law the
liability of any partner for the liabilities of the partnership (or
entity) is limited and whether or not under that law the
partnership (or entity) is incorporated or is otherwise a
separate legal entity.
firm-name of:
(a) an incorporated limited partnership--means the name
of the partnership recorded in the Register, and
(b) of an external partnership--means the name under
which, in accordance with the law of the place in which
it is formed, the partnership carries on the business of
the partnership.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
general partner:
(a) in a limited partnership--means a partner in the limited
partnership who is not a limited partner, and
(b) in an incorporated limited partnership--means a person
or partnership (including an external partnership)
admitted as a partner in the incorporated limited
partnership in accordance with the partnership
agreement and who is not a limited partner.
incorporated limited partnership means an incorporated
limited partnership formed in accordance with section 50A
(2).
limited partner:
(a) in a limited partnership--means a partner in the limited
partnership whose liability for the liabilities of the
partnership is limited in accordance with this Part, and
(b) in an incorporated limited partnership--means a person
or partnership (including an external partnership)
admitted and designated as a limited partner in the
incorporated limited partnership in accordance with the
partnership agreement.
limited partnership means a limited partnership formed in
accordance with section 50A (1).
partner in a limited partnership or incorporated limited
partnership means a general partner or a limited partner.
Register means the Register of Limited and Incorporated
Limited Partnerships kept under this Part.
registered particulars means particulars recorded in the
Register under section 55 (3).
[53] Section 49
Insert in alphabetical order:
liability includes any debt, obligation or other liability of any
kind, wherever and however incurred.
Page 15
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[54] Section 50
Omit the section. Insert instead:
50 Application of other provisions of this Act
(1) Parts 1 and 2 apply to limited partnerships and incorporated
limited partnerships, except as provided by those Parts or this
Part.
(2) If a provision made by or under this Part relating to limited
partnerships or incorporated limited partnerships is
inconsistent with a provision made by or under any other Part
that applies to limited partnerships or incorporated limited
partnerships, respectively, the provision made by or under this
Part prevails and the other provision is (to the extent of the
inconsistency) of no force or effect in relation to limited
partnerships or incorporated limited partnerships.
[55] Part 3, Division 2, heading
Insert "and incorporated limited partnership" after "partnership".
[56] Section 50A
Insert after the heading to Division 2 of Part 3:
50A Limited partnership or incorporated limited partnership is
formed on registration
(1) A limited partnership is formed by and on registration of the
partnership under this Part as a limited partnership.
(2) An incorporated limited partnership is formed by and on
registration of the partnership under this Part as an
incorporated limited partnership.
[57] Section 51
Omit the section. Insert instead:
51 Composition of limited partnership or incorporated limited
partnership
(1) A limited partnership or incorporated limited partnership
must have:
(a) at least one general partner, and
Page 16
Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(b) at least one limited partner.
(2) A corporation may be a general partner or a limited partner in
a limited partnership or incorporated limited partnership.
(3) A partnership (including an external partnership) may be a
general partner or a limited partner in a limited partnership or
incorporated limited partnership.
[58] Section 52 Size of limited partnership or incorporated limited
partnership
Insert "or incorporated limited partnership" after "partnership" in section
52 (1).
[59] Section 52 (2)-(4)
Omit section 52 (2). Insert instead:
(2) An incorporated limited partnership must not have more than
20 general partners.
(3) A limited partnership:
(a) must not have more than 20 general partners, or
(b) if the partnership is of a particular kind in respect of
which a higher number applies in accordance with
section 115 (2) of the Corporations Act 2001 of the
Commonwealth (and the partnership consisted only of
those general partners)--must not have more general
partners than that higher number.
(4) For the purposes of this section:
(a) if a general partner is a partnership or external
partnership and no partner in that partnership has, under
the law of the place where the partnership is formed,
limited liability for the liabilities of the partnership, the
number of partners in that partnership is to be counted,
and
(b) if a general partner is a partnership or external
partnership and any partner in that partnership has,
under the law of the place where the partnership is
formed, limited liability for the liabilities of the
partnership, the number of partners in that partnership
whose liability is not so limited is to be counted but no
account is to be taken of the number of partners in that
partnership whose liability is so limited.
Page 17
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[60] Sections 53-53C
Omit section 53. Insert instead:
53 Incorporated limited partnership is separate legal entity
(1) An incorporated limited partnership:
(a) is a body corporate with legal personality separate from
that of the partners in it and with perpetual succession,
and
(b) may have a common seal, and
(c) may sue and be sued in its firm-name.
(2) The common seal of an incorporated limited partnership must
be kept in such custody as the partnership directs and must not
be used except as authorised by it.
53A Powers of incorporated limited partnership
(1) An incorporated limited partnership has the legal capacity and
powers of an individual and also all the powers of a body
corporate including (for example) the power, whether within
or outside New South Wales or outside Australia:
(a) to carry on the business of the partnership, or
(b) to enter into contracts or otherwise acquire rights or
liabilities, or
(c) to create, confer, vary or cancel interests in the
partnership, or
(d) to acquire, hold and dispose of real or personal property
or an interest (whether beneficial or legal) in real or
personal property, or
(e) to appoint agents and attorneys, and act as agent for
other persons, or
(f) to form, and participate in the formation of, companies
or incorporated limited partnerships, or
(g) to participate in partnerships, trusts, joint ventures or
other associations and other arrangements for the
sharing of profits, or
(h) to do such other things as it is authorised to do by or
under this Act.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(2) The powers of an incorporated limited partnership may be
limited by the partnership agreement.
53B Partnership agreement
(1) There must at all times be a written partnership agreement
between the partners in an incorporated limited partnership.
(2) The interests of the partners in an incorporated limited
partnership and their rights and duties in relation to the
partnership are, subject to this Act, to be determined in
accordance with the agreement.
(3) A partnership agreement also has effect as a contract between
the incorporated limited partnership and each partner under
which the partnership and each of the partners agree to
observe and perform the agreement so far as it applies to
them.
53C Relationship of partners in incorporated limited partnership to
others and between themselves
(1) Except as otherwise provided by the partnership agreement or
agreed between the partners in an incorporated limited
partnership:
(a) a general partner, the partnership or an officer,
employee, agent or representative of a general partner
or of the partnership is not an agent of a limited partner
and the acts of a general partner or of the partnership or
of such an officer, employee, agent or representative do
not bind a limited partner, and
(b) a limited partner is not an agent of, nor fiduciary for, a
general partner or of another limited partner or of or for
the partnership and the acts of a limited partner do not
bind a general partner, another limited partner or the
partnership itself.
(2) A reference in subsection (1) to a general partner includes, if
the general partner is a partnership or an external partnership,
a reference to a partner in that partnership.
(3) Nothing in subsection (1) prevents the making of, or limits or
restricts, an agreement between a partner (the first person)
and either another partner or the incorporated limited
partnership (the second person) under which:
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Schedule 1 Amendments
(a) the first person acts as an agent of the second person
and, by so acting, binds the second person, or
(b) the second person acts as an agent of the first person
and, by so acting, binds the first person.
(4) Any consent or authority that under this Act is required or
permitted to be given by a partner or two or more partners or
all the partners may, in the case of an incorporated limited
partnership and without limiting any other way in which it
might be given, be given by that partner or those partners by
or under the partnership agreement either in relation to all
cases, or in relation to all cases subject to specified
exceptions, or in relation to any specified case or class of
cases.
(5) Any consent or authority that under this Act is required or
permitted to be given by an incorporated limited partnership
may, without limiting any other way in which it might be
given, be given by a general partner or two or more general
partners acting in accordance with the partnership agreement.
(6) A limited partner, in the capacity of limited partner, is not a
proper party to any proceeding commenced in a court or
tribunal by or against the incorporated limited partnership,
other than a proceeding commenced by the incorporated
limited partnership against the limited partner or by the
limited partner against the incorporated limited partnership.
[61] Part 3, Division 3, heading
Insert "and incorporated limited partnerships" after "partnerships".
[62] Section 53D
Insert after the heading to Division 3 of Part 3:
53D Who may apply for registration?
(1) An application for registration as a limited partnership may be
made by:
(a) a partnership, or
(b) any persons or partnerships (or both) proposing to be
partners in the limited partnership.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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(2) An application for registration as an incorporated limited
partnership may be made, in the circumstances described in
subsection (3), by:
(a) a partnership (including an external partnership), or
(b) any persons or partnerships (including external
partnerships), or both, proposing to be partners in the
proposed incorporated limited partnership.
(3) The circumstances are:
(a) that the partnership is registered under Part 2 of the
Venture Capital Act 2002 of the Commonwealth, or a
general partner in the partnership or a proposed general
partner in the proposed incorporated limited
partnership intends to apply for registration of the
incorporated limited partnership or proposed
partnership under that Part, as:
(i) a VCLP within the meaning of that Act, or
(ii) an AFOF within the meaning of that Act, or
(b) that the partnership is a venture capital management
partnership within the meaning of section 94D (3) of
the Income Tax Assessment Act 1936 of the
Commonwealth or the partners in the partnership or the
proposed partners in the proposed incorporated limited
partnership intend that the partnership or proposed
incorporated limited partnership will meet the
requirements set out in that section for recognition as a
venture capital management partnership, or
(c) such other circumstances as are prescribed.
[63] Section 54
Omit the section. Insert instead:
54 Application for registration
(1) An application for registration of a limited partnership or
incorporated limited partnership is made by lodging with the
Registrar in accordance with this Part a statement signed:
(a) if the application is made by a partnership (including an
external partnership)--either by each partner in the
partnership or by a person given authority to make such
an application on behalf of the partnership and the
partners in it, or
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(b) in any other case--by each proposed partner.
(2) The statement must be made in the form approved by the
Registrar and must:
(a) contain a statement of whether the partnership is to be
registered as a limited partnership or an incorporated
limited partnership, and
(b) in the case of an application by a partnership (including
an external partnership), contain particulars of:
(i) the firm-name of the partnership, and
(ii) the full address of the office or principal office in
New South Wales of the partnership (to be called
the registered office of the proposed partnership),
and
(c) in the case of an application by persons or partnerships
(including external partnerships) proposing to be the
partners in the proposed partnership, contain particulars
of:
(i) the proposed firm-name of the proposed
partnership, and
(ii) the full address of the proposed office or principal
office in New South Wales of the proposed
partnership (to be called the registered office of
the partnership), and
(d) contain particulars of the full name of each partner or
proposed partner or, if the partner or proposed partner
is a partnership (including an external partnership), the
name of that partnership or, if that partnership does not
have a name, the full name of each partner in the
partnership, and
(e) in the case of an application by a partnership, contain
particulars of its registered office or principal office,
and in any other case, contain particulars of the full
address of each partner or proposed partner, being (in
the case of an individual) his or her principal place of
residence or (in the case of a corporation or partnership)
its registered office or principal place of business, and
(f) contain a statement in relation to each partner or
proposed partner that is an individual as to whether that
partner or proposed partner is, or is proposed to be, a
general partner or a limited partner, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(g) contain a statement in relation to each partner or
proposed partner that is a corporation or a partnership
that is, or is proposed to be, a partner a statement in
relation to the corporation or partnership as to whether
it is to be a general partner or a limited partner, and
(h) contain a statement in relation to each partner or
proposed partner that is a partnership to the effect that
the partner or proposed partner is a partnership, and
(i) in the case of an application for a limited partnership--
contain a statement in relation to each limited partner to
the effect that the partner is a limited partner whose
liability to contribute is limited to the extent of the
amount specified in the statement (being the amount of
any capital, or the value of any property, that the limited
partner has agreed to contribute to the partnership or, in
the case of a limited partner that is a partnership, the
aggregate amounts or values), and
(j) in the case of an application by a partnership or persons
or partnerships proposing to be partners in a partnership
that intends to apply for registration as a VCLP or an
AFOF under Part 2 of the Venture Capital Act 2002 of
the Commonwealth, contain a statement that it so
intends to apply, and
(k) in the case of an application by a partnership that is
registered as a VCLP or an AFOF under Part 2 of the
Venture Capital Act 2002 of the Commonwealth, be
accompanied by a copy of a document evidencing its
status as a VCLP or an AFOF, and
(l) in the case of an application by a partnership or
proposed persons or partnerships proposing to be a
partnership that intends to meet the requirements for
recognition as a venture capital management
partnership set out in section 94D (3) of the Income Tax
Assessment Act 1936 of the Commonwealth, contain a
statement that it so intends to meet those requirements,
and
(m) in the case of an application by a partnership that is a
venture capital management partnership within the
meaning of section 94D (3) of the Income Tax
Assessment Act 1936 of the Commonwealth, a
statement that it is such a partnership, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(n) contain such other particulars as are required by the
regulations or by the approved form of statement.
[64] Section 55 Registration of limited partnership or incorporated
limited partnership
Insert "or incorporated limited partnership" after "limited partnership"
wherever occurring in section 55 (1).
[65] Section 55 (2)
Insert "or incorporated limited partnership" after "partnership".
[66] Section 55 (2A) and (2B)
Insert after section 55 (2):
(2A) If the Registrar registers a limited partnership or an
incorporated limited partnership, the firm-name of the
partnership is its name as recorded in the Register.
(2B) On registration of a limited partnership as an incorporated
limited partnership, the limited partnership ceases to be a
limited partnership and the Registrar is to record the
cancellation of its registration in the Register. However any
liability of the firm or a partner in it that arose before its
registration as an incorporated limited partnership is to be
dealt with as if it were still a limited partnership.
[67] Section 55, note
Insert at the end of section 55:
Note. The Business Names Act 1962 is to be repealed on the
commencement of the Business Names Act 2002.
[68] Section 55A
Insert after section 55:
55A Acts preparatory to registration do not constitute partnership
Any act done in connection with the making of an application
for registration under this Part by or on behalf of persons or
partnerships (including external partnerships) proposing to be
the partners in a proposed partnership does not of itself create
a partnership between those persons or partnerships.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[69] Section 56 Changes in registered particulars
Insert "or incorporated limited partnership" after "limited partnership" in
section 56 (1).
[70] Section 56 (2) and (2A)
Omit section 56 (2). Insert instead:
(2) The statement must be signed by all the general partners, or
by a general partner authorised by all the general partners for
the purposes of this section.
(2A) In the case of a limited partnership, if the change relates to the
admission of a limited partner, or a change in the liability of a
limited partner to contribute, the statement must also be
signed:
(a) by the limited partner concerned, or
(b) if that limited partner is a limited partnership, by all the
general partners in that limited partnership or by a
general partner in that limited partnership authorised by
all the general partners in that limited partnership for
the purposes of this section.
[71] Section 56 (4)
Omit the subsection. Insert instead:
(4) If the statement is duly lodged, the Registrar is to record the
change in the Register, unless, in the case of a limited
partnership, as a result of a change in relation to the registered
particulars, the partnership is not eligible to be registered as a
limited partnership.
[72] Section 56, note
Insert at the end of the section:
Note. See section 80A in relation to offences committed by general
partners.
[73] Section 57 Register of Limited Partnerships and Incorporated
Limited Partnerships
Omit section 57 (1). Insert instead:
(1) The Registrar is required to keep a register of limited
partnerships and incorporated limited partnerships registered
under this Part (to be called the Register of Limited and
Incorporated Limited Partnerships).
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(1A) In the Register, there is to be a division of limited partnerships
and a division of incorporated limited partnerships.
[74] Section 57 (4) and (5)
Insert after section 57 (3):
(4) The Registrar may correct any error or omission in the
Register by:
(a) inserting an entry, or
(b) amending an entry, or
(c) omitting an entry,
if the Registrar decides that the correction is necessary.
(5) The Registrar must not omit an entry in the Register unless
satisfied that the whole of the entry was included in error.
[75] Section 58
Omit the section. Insert instead:
58 Certificates of registration
(1) The Registrar must, at the time of:
(a) registering a limited partnership or an incorporated
limited partnership, or
(b) recording a change in its registered particulars, or
(c) correcting an error or omission in the Register in
relation to it,
issue to the general partners a certificate as to its formation
and its registered particulars as at that time.
(2) The Registrar may, on application, issue to the applicant a
certificate in relation to a limited partnership or incorporated
limited partnership as to its formation and its registered
particulars as at the time of the application.
(3) A certificate under this section is to be in such form as the
Registrar thinks fit.
(4) A certificate under this section:
(a) as to the formation of a limited partnership or
incorporated limited partnership is conclusive evidence
that the partnership was formed on the date of
registration referred to in the certificate, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(b) as to the registered particulars as at a specified time of
the partnership, is (unless the contrary is established)
conclusive evidence that the partnership existed at that
time, and
(c) as to the general partners and limited partners in a
partnership as at a specified time is (unless the contrary
is established) conclusive evidence of the general
partners and limited partners as at that time, and
(d) as to any other particular of a partnership recorded in
the Register as at a specified time, is (unless the
contrary is established) conclusive evidence of that
particular as at that time.
[76] Section 59 Business Names Act 1962 not to apply
Insert "or an incorporated limited partnership" after "partnership".
[77] Section 59, note
Insert at the end of section 59:
Note. The Business Names Act 1962 is to be repealed on the
commencement of the Business Names Act 2002.
[78] Part 3, Division 4, heading
Insert "in limited partnership" after "partners".
[79] Section 60 Liability of limited partner limited to amount shown in
Register
Omit "debts or obligations" wherever occurring from section 60 (1) and
(2).
Insert instead "liabilities".
[80] Section 60 (3)
Insert after section 60 (2):
(3) If a partnership (the investing partnership) is a limited
partner in a limited partnership (the principal partnership), a
partner in the investing partnership has no separate liability to
contribute to the liabilities of the principal partnership, but
nothing in this subsection affects any liability of the investing
partnership as a limited partner to contribute to those
liabilities.
Page 27
Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[81] Sections 61, 62, 63, 64 (2) and (3) and 67 (3) (c)
Omit "debt or obligation" wherever occurring.
Insert instead "liability".
[82] Section 64 Liability for limited partnerships formed under
corresponding laws
Insert "or jurisdiction" after "country" in the definition of corresponding
law in section 64 (1).
[83] Section 64 (4)
Insert "or jurisdiction" after "country".
[84] Section 64 (5)
Insert after section 64 (4):
(5) This section is additional to, and does not derogate from, any
rule of law under which recognition is or may be given to a
limitation of liability of a partner in a partnership (including
an external partnership).
[85] Section 64A
Insert after section 64:
64A Effect of sections 63 and 64
No implication is to be taken as arising from section 63 or 64
that a limited partner has any liability (or but for that section
would have any liability) in connection with the conduct of a
partnership's business outside the State that the limited
partner would not have in connection with the conduct of a
partnership's business within the State.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
[86] Part 3, Division 4A
Insert after section 66:
Division 4A Limitation of liability of limited partners in
incorporated limited partnerships
66A Limitation of liability of limited partners
(1) A limited partner has no liability for the liabilities of the
incorporated limited partnership or of a general partner.
(2) Nothing in subsection (1) or section 66C or 66D prevents:
(a) a contribution of capital or property made by a limited
partner to the incorporated limited partnership being
used, or
(b) an obligation of a limited partner to contribute capital or
property to the incorporated limited partnership being
enforced by any person to whom the obligation is owed,
in satisfaction of a liability of the partnership or of a general
partner.
(3) This section is subject to section 67A (Limited partner not to
take part in the management of incorporated limited
partnership).
66B Change in status of partners
(1) If a general partner becomes a limited partner, the partner
remains liable for any liability of the incorporated limited
partnership that arose before the partner became a limited
partner to the extent that the partnership is unable to satisfy
the liability or to the greater extent provided by the
partnership agreement.
(2) If a limited partner becomes a general partner, the partner
remains not liable (subject to section 67A (2)) for any liability
of the incorporated limited partnership that arose before the
partner became a general partner.
Note. Section 67A (2) imposes liability in certain circumstances on a
limited partner who takes part in the management of the business of the
incorporated limited partnership.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
66C Liability in respect of conduct or acts or omissions outside the
State
The limitation on the liability of a limited partner in an
incorporated limited partnership by or under this Division
extends to any liability incurred:
(a) in connection with the conduct of the partnership's
business outside the State, or
(b) as a result of an act or omission outside the State of a
general partner or a limited partner in the partnership,
the partnership or of any officer, employee, agent or
representative of a general partner in the partnership or
the partnership.
66D Incorporated limited partnerships formed under
corresponding laws
(1) In this section:
corresponding law means:
(a) a law of another State or of a Territory or of another
country or jurisdiction that substantially corresponds to
the provisions of this Act that relate to incorporated
limited partnerships, or
(b) a law declared under subsection (3) to be a
corresponding law for the purposes of this Part.
recognised incorporated limited partnership means a
partnership formed in accordance with a corresponding law.
(2) A partner in a recognised incorporated limited partnership is
liable for a liability incurred by the partnership as a result of:
(a) the conduct of the recognised incorporated limited
partnership's business in this State, or
(b) the acts or omissions in this State of a partner in the
recognised incorporated limited partnership or of the
partnership itself or of any officer, employee, agent or
representative of such a partner or of the partnership,
only in circumstances where the partner would be so liable
under the corresponding law if the conduct or acts or
omissions occurred in the place where the recognised
incorporated limited partnership was formed.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(3) Subject to subsections (4) and (5), the Governor may, by order
published in the Gazette, declare a law of another State, a
Territory or another country or jurisdiction to be a
corresponding law for the purposes of this Part.
(4) The law of another State or of a Territory may not be declared
to be a corresponding law unless the Minister has certified to
the Governor that under that law a limited partner in an
incorporated limited partnership formed in accordance with
this Part and registered or otherwise recognised under that law
is liable for a liability incurred by the partnership as a result
of:
(a) the conduct in that State or Territory of the business of
the partnership, or
(b) the acts or omissions in that State or Territory of a
partner in the partnership or of the partnership itself or
of any officer, employee, agent or representative of a
general partner or of the partnership,
only in circumstances where the limited partner would be so
liable under this Act if the conduct or acts or omissions
occurred within the State.
(5) The law of another country or jurisdiction (not being another
State or Territory) may not be declared to be a corresponding
law unless the Minister has certified to the Governor that that
law provides for the limitation of liability of certain partners
in certain partnerships.
(6) This section is additional to, and does not derogate from, any
rule of law under which recognition is or may be given to a
limitation of liability of a partner in a partnership.
66E Effect of sections 66C and 66D
No implication is to be taken as arising from section 66C or
66D that a limited partner has any liability (or but for that
section would have any liability) in connection with the
conduct of a partnership's business or acts or omissions
outside the State that the limited partner would not have in
connection with the conduct of a partnership's business or
acts or omissions within the State.
[87] Part 3, Division 6, heading
Insert "and incorporated limited partnerships" after "partnerships".
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[88] Section 67 Limited partner not to take part in management of
limited partnership
Omit "debts and obligations" from section 67 (2).
Insert instead "liabilities".
[89] Section 67 (6)
Insert after section 67 (5):
(6) No implication is to be taken as arising from section 67A (3)
that a limited partner in a limited partnership is to be regarded
as taking part in the management of the business of the
partnership merely because the limited partner or a person
acting on behalf of the partner does any thing in connection
with the conduct of that business that is not referred to in that
subsection.
[90] Sections 67A and 67B
Insert after section 67:
67A Limited partner not to take part in the management of
incorporated limited partnership
(1) A limited partner in an incorporated limited partnership must
not take part in the management of the business of the
partnership.
(2) If:
(a) as a direct result of any wrongful act or omission of a
limited partner in taking part in the management of the
business of an incorporated limited partnership the
limited partner causes any loss or injury to any person
other than a partner in the partnership (a third party),
and
(b) at the time of the act or omission the third party had
reasonable grounds to believe that the limited partner
was a general partner in the partnership,
the limited partner is liable for the loss or injury to the same
extent that the limited partner would have been liable if the
Page 32
Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
limited partner were in fact a general partner in the
partnership.
Note. A limited partner is not an agent of an incorporated limited
partnership and the acts of a limited partner do not bind a general
partner, another limited partner or the partnership itself--see section
53C (1).
(3) A limited partner in an incorporated limited partnership is not
to be regarded as taking part in the management of the
business of the partnership merely because the limited partner
or a person acting on behalf of the limited partner:
(a) is an employee of or an independent contractor engaged
by the partnership, a general partner in the partnership
or an associate of the general partner, or is an officer of
a general partner that is a body corporate or of an
associate of a general partner that is a body corporate,
or
(b) gives advice to, or on behalf of, the partnership or a
general partner in the partnership or an associate of
such a general partner in the proper exercise of
functions arising from the engagement of the limited
partner, or a person acting on behalf of the limited
partner, in a professional capacity or arising from
business dealings between the limited partner, or a
person acting on behalf of the limited partner, and the
partnership or a general partner or an associate of the
general partner, or
(c) gives a guarantee or indemnity in respect of any
liability of the partnership or of a general partner in the
partnership or an associate of the general partner, or
(d) takes any action, or participates in any action taken by
any other limited partner in the partnership, for the
purpose of enforcing the rights, or safeguarding the
interests, of the limited partner as a limited partner, or
(e) if permitted by the partnership agreement:
(i) calls, requisitions, convenes, chairs, participates
in, postpones, adjourns or makes a record of a
meeting of the partners or of the limited partners
or of any of them, or
(ii) requisitions, signs or otherwise passes, approves,
disapproves or amends any resolution (whether at
a meeting, in writing or otherwise) of the partners
or of the limited partners or of any of them,
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
including without limitation by formulating,
moving, proposing, supporting, opposing,
speaking to or voting on any such resolution, or
(f) exercises a power conferred on the limited partner by
subsection (4) or has, or exercises, any right to:
(i) have access to and inspect the books or records of
the partnership or copy any of them, or
(ii) examine the state or prospects of the business of
the partnership or advise, or consult with, other
partners in relation to such matters, or
(g) gives advice to, or consults with, or is or acts as an
officer, director, security holder, partner, agent,
representative, employee of or independent contractor
engaged by an associate of the partnership, or
Note. Associate of a partnership is defined in section 67B.
(h) is or acts as a lender to, or fiduciary for, an associate of
the partnership, or
(i) to the extent authorised by the partnership agreement,
participates on, or has or exercises any right to appoint
one or more persons to, or remove one or more persons
from, or to nominate one or more persons for such
appointment to or removal from, a committee which
considers, approves of, consents to or disapproves of
any one or more of the following proposals from a
general partner:
(i) a proposal involving a material change in the
nature of the business of the partnership
(including a change in, or departure from, any
investment guidelines, policies or conditions
relating to the business of the partnership),
(ii) a proposal for the adoption of a method for
valuing some or all of the assets of the
partnership (including a change to, replacement
of or variation from such a method),
(iii) a proposal for an extension or reduction in the
period in which, under the partnership
agreement, investments (or certain types of
investments) can be made by the partnership, or
for any approval or disapproval of investments
that the partnership does not otherwise have a
right to make,
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(iv) a proposal relating to any actual or potential
transaction or other matter involving any actual
or potential conflict of interest,
(v) a proposal relating to any actual or potential
transaction, contract, arrangement or
understanding between one or more of the
partners, or their associates, and the general
partner, the partnership or any associate of the
general partner or of the partnership,
(vi) a proposal for the delegation, waiver, release or
variation of an authority, right, duty or obligation
of the general partner,
(vii) a proposal for the appointment or approval under
the partnership agreement of any person as a
senior executive of the general partner or of an
associate of the general partner, or
(j) nominates, selects, investigates, evaluates or negotiates
with any person in connection with the removal or
replacement of a general partner, or participates on a
committee which proposes, considers, approves of,
consents to or disapproves of any nomination,
selection, appointment, change in control or ownership,
suspension, replacement or removal of a general
partner or an associate of a general partner, or
(k) takes any action, or participates in any action taken by
any other limited partner, for the purpose of registering
or maintaining the registration of the partnership or a
general partner in the partnership under Part 2 of the
Venture Capital Act 2002 of the Commonwealth as a
VCLP or an AFOF within the meaning of that Act.
(4) A limited partner in an incorporated limited partnership or a
person authorised by the limited partner may, if and to the
extent the partner or person is so authorised by the partnership
agreement as in force from time to time:
(a) have access to and inspect the books or records of the
partnership or copy any of them, and
(b) examine the state or prospects of the business of the
partnership and advise, or consult with, other partners
in relation to such matters.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(5) The provisions of this section may not be varied by the
partnership agreement or with the consent of the partners,
whether given by or under the partnership agreement or
otherwise.
Note. Section 53C (4) enables partners to give consent by or under the
partnership agreement.
(6) No implication is to be taken as arising from subsection (3)
that a limited partner in an incorporated limited partnership is
to be regarded as taking part in the management of the
business of the partnership merely because the limited partner
or a person acting on behalf of the partner does any thing in
connection with the conduct of that business that is not
referred to in that subsection.
(7) For the purposes of this section, a limited partner in an
incorporated limited partnership that is a venture capital
management partnership (within the meaning of section 94D
(3) of the Income Tax Assessment Act 1936 of the
Commonwealth) is not to be regarded as taking part in the
management of the business of the incorporated limited
partnership merely because of any act the limited partner
takes in respect of the incorporated limited partnership in the
capacity of a partner or associate of a partner in the venture
capital management partnership.
67B Interpretation of section 67A
(1) In section 67A:
(a) a reference to an associate of a general partner includes
a reference to:
(i) if the general partner is a partnership, a partner in
that partnership (a partner in the general
partner), and
(ii) any person who has an interest in the general
partner or in any partner in the general partner,
whether as security holder, trustee, responsible
entity, manager, custodian, sub-custodian,
nominee, administrator, executor, legal personal
representative, beneficiary or otherwise, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(iii) any person to whom the general partner or any
partner in the general partner has delegated any
power, authority, right, duty or obligation of the
general partner in relation to the partnership or
any other partnership in which the general partner
is general partner, and
(iv) if the general partner or a partner in the general
partner or a person covered by subparagraph (ii)
or (iii) is a body corporate, a related body
corporate of that body corporate, and
(v) a director, officer, employee, agent,
representative or security holder of the general
partner or of any partner in the general partner or
of a person covered by subparagraph (ii), (iii) or
(iv), and
(b) a reference to an associate of a limited partner includes
a reference to:
(i) if the limited partner is a partnership, a partner in
that partnership (a partner in the limited
partner), and
(ii) any person who has an interest in the limited
partner or in any partner in the limited partner,
whether as security holder, trustee, responsible
entity, manager, custodian, sub-custodian,
nominee, administrator, executor, legal personal
representative, beneficiary or otherwise, and
(iii) if the limited partner or a partner in the limited
partner or a person covered by subparagraph (ii)
is a body corporate, a related body corporate of
that body corporate, and
(iv) a director, officer, employee, agent,
representative or security holder of the limited
partner or of any partner in the limited partner or
of a person covered by subparagraph (ii) or (iii),
and
(c) a reference to an associate of an incorporated limited
partnership includes a reference to:
(i) any person or partnership in which the
incorporated limited partnership has an interest,
whether as security holder or otherwise, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(ii) if a person or partnership covered by
subparagraph (i) is a body corporate, a related
body corporate of that body corporate.
(2) In section 67A and this section, a reference to a general
partner in an incorporated limited partnership includes, if the
general partner is a partnership, a reference to a partner in that
partnership.
(3) In section 67A and this section:
related body corporate has the same meaning given by
section 9 of the Corporations Act 2001 of the
Commonwealth.
security holder, in relation to a body (whether corporate or
unincorporated) includes a holder of securities (within the
meaning given by section 92 (3) of the Corporations Act 2001
of the Commonwealth) in or of the body.
[91] Section 68 Differences between partners
Insert "or an incorporated limited partnership" after "partnership" in
section 68 (1).
[92] Sections 68 and 69, notes
Insert at the end of the sections:
Note. See section 53C (4).
[93] Section 69 Change in partners
Insert "in a limited partnership" after "limited partner" where firstly
occurring in section 69 (1).
[94] Section 69 (1A)-(1C)
Insert after section 69 (1):
(1A) A limited partner in an incorporated limited partnership may,
with the consent of the general partners and the agreement of
the transferee, transfer the whole or a proportion of the limited
partner's interest in the incorporated limited partnership.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
(1B) If the whole of the limited partner's interest in the
incorporated limited partnership is transferred to the one
transferee, the transferee becomes a limited partner in
substitution for the transferor with all the rights and
obligations of the transferor.
(1C) If only a proportion of the limited partner's interest in the
incorporated limited partnership is transferred to a transferee,
the transferee becomes a limited partner in substitution for the
transferor in respect of the transferred proportion and with all
the rights and obligations of the transferor in respect of it.
[95] Section 69 (2)
Insert "or incorporated limited partnership" after "limited partnership".
[96] Part 3, Division 6, heading
Insert "and incorporated limited partnerships" after "partnerships".
[97] Section 70 Dissolution not available in certain cases
Omit "debts or obligations" from section 70 (1) (b).
Insert instead "liabilities".
[98] Section 70 (2)
Insert "or an incorporated limited partnership" after "limited partnership".
[99] Section 73A
Insert after section 73:
73A Winding up of incorporated limited partnerships
Schedule 1 has effect.
[100] Sections 73B-73E
Insert after the heading to Division 7 of Part 3:
73B Execution of documents
Without limiting the ways in which an incorporated limited
partnership may execute a document (including a deed), an
incorporated limited partnership may execute a document:
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(a) without using a common seal (whether it has one or not)
if the document is signed by a general partner, or
(b) as a deed if the document is expressed to be executed as
a deed and is executed with the use of a common seal or
in accordance with paragraph (a).
Note. Section 150 (1) of the Evidence Act 1995 provides for
certain presumptions to be made with respect to seals and duly
sealed documents. See also section 53 (2) on seals of
incorporated limited partnerships.
73C Entitlement to make assumptions
(1) A person is entitled to make the assumptions in section 73D
in relation to dealings with an incorporated limited
partnership. The incorporated limited partnership is not
entitled to assert in proceedings in relation to the dealings that
any of the assumptions are incorrect.
(2) A person is entitled to make the assumptions in section 73D
in relation to dealings with another person who has, or
purports to have, directly or indirectly acquired title to
property from an incorporated limited partnership. The
incorporated limited partnership and the other person are not
entitled to assert in proceedings in relation to the dealings that
any of the assumptions are incorrect.
(3) The assumptions may be made even if a partner or agent of the
incorporated limited partnership acts fraudulently, or forges a
document, in connection with the dealings.
(4) A person is not entitled to make an assumption in section 73D
if, at the time of the dealings, the person knew or suspected
that the assumption was incorrect.
73D Assumptions that may be made under section 73C
(1) A person may assume that the partnership agreement of the
incorporated limited partnership has been complied with.
(2) A person may assume that anyone who appears, from
information provided by the incorporated limited partnership
that is available to the public from the Register, to be a general
partner in the incorporated limited partnership:
(a) is a general partner in the incorporated limited
partnership, and
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Partnership Amendment (Venture Capital Funds) Bill 2004
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(b) has authority to exercise the powers and perform the
duties customarily exercised or performed by a general
partner in an incorporated limited partnership.
(3) A person may assume that anyone who is held out by the
incorporated limited partnership to be a general partner in, or
an agent of, the incorporated limited partnership:
(a) is a general partner in the incorporated limited
partnership or has been duly appointed as an agent of
the incorporated limited partnership, as the case
requires, and
(b) has authority to exercise the powers and perform the
duties customarily exercised or performed by that kind
of partner in, or agent of, an incorporated limited
partnership.
(4) A person may assume that the general partners in, and agents
of, the incorporated limited partnership properly perform
their duties to the incorporated limited partnership.
(5) A person may assume that a document has been duly executed
by the incorporated limited partnership if the document
appears to have been signed in accordance with section 73B.
(6) A person may assume that a document has been duly executed
by the incorporated limited partnership if the incorporated
limited partnership's common seal appears to have been
affixed to the document.
(7) A person may assume that a general partner in, or agent of, the
incorporated limited partnership who has authority to issue a
document or certified copy of a document on its behalf also
has authority to warrant that the document is genuine or is a
true copy.
(8) Without limiting the generality of this section, the
assumptions that may be made under this section apply for the
purposes of this section.
73E Lodgment of certain documents with the Registrar
(1) An incorporated limited partnership that was incorporated on
the basis that it intended to be registered as a VCLP or an
AFOF under Part 2 of the Venture Capital Act 2002 of the
Commonwealth must, within one month after being so
registered, lodge with the Registrar a copy of a document
evidencing its status as a VCLP or an AFOF.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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(2) An incorporated limited partnership that was incorporated on
the basis that it intended to meet the requirements for
recognition as a venture capital management partnership
within the meaning of section 94D (3) of the Income Tax
Assessment Act 1936 of the Commonwealth must, within one
month after becoming such a venture capital management
partnership, lodge with the Registrar a statement that it is such
a partnership.
(3) If:
(a) the registration of an incorporated limited partnership
as a VCLP or an AFOF under Part 2 of the Venture
Capital Act 2002 of the Commonwealth is revoked, or
(b) an incorporated limited partnership ceases to be a
venture capital management partnership within the
meaning of section 94D (3) of the Income Tax
Assessment Act 1936 of the Commonwealth,
the incorporated limited partnership must, within 7 days after
the date on which that revocation took effect or it ceased to be
such a venture capital limited partnership, lodge with the
Registrar a notice of that revocation or cessation, specifying
the date on which it took effect.
(4) If an incorporated limited partnership ceases to carry on
business, the incorporated limited partnership must, as soon
as practicable, lodge with the Registrar a notice of the
cessation, specifying the date on which it took effect.
(5) A copy of a document or a notice required to be lodged with
the Registrar under this section must be accompanied by the
prescribed fee or, if no fee is prescribed, a fee of $70.
(6) A notice required to be lodged with the Registrar under this
section must be:
(a) in the form approved by the Registrar, and
(b) contain the particulars required by the regulations or the
approved form of notice.
(7) If subsection (1), (2), (3) or (4) is not complied with, each
general partner in the incorporated limited partnership is
guilty of an offence.
Maximum penalty: 10 penalty units.
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[101] Section 75 Identification of limited partnerships and incorporated
limited partnerships
Omit section 75 (2). Insert instead:
(2) Any document issued on behalf of a limited partnership in
connection with the conduct of the partnership's business
must contain in legible letters the words "A Limited
Partnership" (or "L.P." or "LP" as an abbreviation) at the end
of the firm-name of the partnership.
(2A) Any document issued on behalf of an incorporated limited
partnership in connection with the conduct of the
partnership's business must contain in legible letters the
words "An Incorporated Limited Partnership" (or "L.P." or
"LP" as an abbreviation) at the end of the firm-name of the
partnership.
[102] Section 75 (3) (b) and (4)
Insert "or incorporated limited partnership" after "limited partnership"
wherever occurring.
[103] Section 76 Registered office
Insert "or incorporated limited partnership" after "limited partnership"
wherever occurring.
[104] Section 77 Service
Omit section 77 (1). Insert instead:
(1) Without affecting any other method of serving documents on
the partners in a limited partnership or on an incorporated
limited partnership:
(a) a document concerning the business of a limited
partnership may be duly served on partners in the
partnership, or
(b) a document concerning the business of an incorporated
limited partnership may be duly served on the
partnership,
if it is left at, or sent by post addressed to, the registered office
of the firm for the time being shown in the Register.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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[105] Section 78 Entry in Register constitutes notice
Insert "or an incorporated limited partnership" after "limited partnership".
[106] Section 80 Criminal proceedings
Omit "Part". Insert instead "Act or the regulations".
[107] Sections 80A and 80B
Insert after section 80:
80A Offences by partnerships
(1) If this Act provides that a general partner (being a partnership,
whether or not an external partnership) in a limited
partnership or incorporated limited partnership is guilty of an
offence, the reference to the general partner is to be read as a
reference:
(a) to each partner in the partnership (or external
partnership), or
(b) if the partnership (or external partnership) is one in
which any partner has under the law of the place where
it is formed limited liability for the liabilities of the
partnership, each partner in the partnership whose
liability is not so limited.
(2) In any proceeding against a partner for an offence against this
Act brought in reliance on subsection (1) it is a defence for the
partner to prove that the partner took all reasonable
precautions and exercised all due diligence to avoid the
commission of the offence.
80B Duty to furnish information
(1) For the purpose of monitoring compliance with this Part or the
regulations made for the purposes of this Part, the Registrar
may by notice in writing require an incorporated limited
partnership to furnish within a period specified in the notice
(being a period of not less than 28 days) or within such further
period as the Registrar may allow such information as is
specified in the notice.
(2) An incorporated limited partnership required under
subsection (1) to furnish information to the Registrar must
within the period specified in the notice or within such further
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
period as the Registrar has allowed furnish such information
as it is within its power to furnish and must not furnish any
information that to its knowledge is false or misleading in a
material particular.
(3) If subsection (2) is not complied with each general partner in
the incorporated limited partnership is guilty of an offence.
Maximum penalty: 60 penalty units.
[108] Section 81 Regulations
Omit section 81 (2). Insert instead:
(2) In particular, the regulations may make provision for or with
respect to the following:
(a) the keeping of records by a limited partnership or
incorporated limited partnership,
(b) information or copies of records or documents required
to be provided to the Registrar by a limited partnership
or incorporated limited partnership,
(c) the form in which any record required under this Act to
be kept is to be kept,
(d) the fees required to accompany an application,
statement, notice or other document lodged under this
Act or the fees payable for the inspection of the Register
or for the issue of certificates of information recorded in
the Register.
(3) The regulations may exempt, or provide for the exemption, of
any person or class of persons or any other matter or thing
from any specified provision or provisions of this Act or the
regulations, in such circumstances (if any) and subject to such
conditions (if any) as may be specified or referred to in the
regulations.
(4) A regulation may create an offence punishable by a penalty
not exceeding 20 penalty units.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
[109] Section 81A
Insert after section 81:
81A Relationship with Corporations legislation
The regulations may declare a matter that is dealt with by this
Act or the regulations to be an excluded matter for the
purposes of section 5F of the Corporations Act 2001 of the
Commonwealth in relation to:
(a) the whole of the Corporations legislation to which Part
1.1A of the Corporations Act 2001 of the
Commonwealth applies, or
(b) a specified provision of that legislation, or
(c) that legislation other than a specified provision, or
(d) that legislation otherwise than to a specified extent.
Note. Section 5F of the Corporations Act 2001 of the
Commonwealth provides that if a State law declares a matter to
be an excluded matter for the purposes of that section in relation
to all or part of the Corporations legislation of the Commonwealth,
then the provisions that are the subject of the declaration will not
apply in relation to that matter in the State concerned.
[110] Section 83 and Schedules 1 and 2
Insert after section 82:
83 Savings, transitional and other provisions
Schedule 2 has effect.
Schedule 1 Winding up of incorporated limited
partnerships
(Section 73A)
1 Definitions
In this Schedule:
assets of an incorporated limited partnership means the assets
remaining after satisfaction of the liabilities of the partnership
and the costs, charges and expenses of the winding up.
special resolution of the limited partners in an incorporated
limited partnership means a resolution that has been passed by
at least 75% of the limited partners.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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2 Voluntary winding up
(1) An incorporated limited partnership may be wound up
voluntarily:
(a) if the partnership agreement sets out the terms on which
the partnership may voluntarily be wound up--in
accordance with the partnership agreement, or
(b) subject to the partnership agreement, if the limited
partners so resolve by special resolution.
(2) On a voluntary winding up of an incorporated limited
partnership:
(a) if the partnership agreement sets out how the assets are
to be dealt with on a voluntary winding up, the assets
must be dealt with in accordance with the partnership
agreement, or
(b) in any other case, the assets are to be distributed among
the partners in shares that are proportionate to their
respective contributions of capital or property to the
partnership.
(3) Any person aggrieved by the operation of this clause in
relation to the assets of an incorporated limited partnership
may apply to the Supreme Court.
(4) On an application under subclause (3), the Supreme Court
may make any order relating to the disposal of the assets that
it thinks fit.
3 Winding up on Registrar's certificate
(1) The Registrar may, by notice, require an incorporated limited
partnership to show good cause why it should not be required
to be wound up if the Registrar is of the opinion:
(a) that the partnership has ceased to carry on business, or
(b) that none of the partners is a limited partner, or
(c) that incorporation of the partnership has been obtained
by mistake or fraud, or
(d) that the partnership exists for an illegal purpose.
(2) If, on the expiration of 28 days after the notice is given under
subclause (1), the Registrar is satisfied that the incorporated
limited partnership should be required to be wound up, the
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
Registrar may publish in the Gazette a certificate as to the
requirement that the incorporated limited partnership be
wound up.
(3) The Registrar may publish in the Gazette a certificate
requiring an incorporated limited partnership to be wound up
if the Registrar is satisfied (whether by a notice under section
73E (3) or otherwise) that, having been incorporated on the
basis that the partnership is or is intended to be:
(a) registered as a VCLP or an AFOF under Part 2 of the
Venture Capital Act 2002 of the Commonwealth, or
(b) a venture capital management partnership within the
meaning of section 94D (3) of the Income Tax
Assessment Act 1936 of the Commonwealth,
the partnership's registration has been revoked, or it has not
within the period of 2 years after its incorporation become so
registered or it has ceased to meet, or has not in the period of
2 years after its incorporation met, the requirements set out in
section 94D (3) for recognition as such a venture capital
management partnership.
(4) The Registrar must not publish a certificate under subclause
(2) or (3) unless satisfied that good cause has not been shown
why the incorporated limited partnership should not be
required to be wound up.
(5) The Registrar must give notice of the publication under
subclause (2) or (3) of a certificate to the incorporated limited
partnership as soon as possible after the publication.
(6) The Registrar must as soon as practicable after giving a notice
to an incorporated limited partnership, record the giving of the
notice in the Register.
(7) A notice under subclause (1) or (5) must be given to the
incorporated limited partnership:
(a) by being served on the incorporated limited partnership
at its registered office, or
(b) if service cannot reasonably be effected, by being
published in a newspaper circulating generally in the
State.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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4 Review of certificate
(1) A person whose interests are affected by a decision of the
Registrar to publish a certificate under clause 3 may apply to
the Supreme Court for review of the decision.
(2) An application under subclause (1) must be made within 28
days after the certificate is published.
(3) The decision is suspended on the making of an application for
review until the application is withdrawn or the review is
determined.
(4) In determining an application for review, the Supreme Court
may:
(a) affirm the decision under review, or
(b) set aside the decision under review and require the
Registrar to cancel the certificate.
(5) Nothing in this clause prevents the Registrar cancelling a
certificate published under clause 3 at any time after an
application is made under subclause (1).
5 Procedure for winding up on certificate
(1) If the Registrar has published, and has not cancelled or been
required under clause 4 (4) (b) to cancel, a certificate under
clause 3 that an incorporated limited partnership is required to
be wound up, the winding up:
(a) must be commenced:
(i) no later than the end of 28 days after the day on
which the certificate is published unless an
application is made under clause 4, or
(ii) if an application is made under clause 4 and the
Supreme Court affirms the decision to publish the
certificate, no later than 28 days after the day on
which the application is determined, and
(b) must be completed by the day specified by the Registrar
in a notice given to the partnership, not being a day
earlier than 60 days after the day on which the winding
up must be so commenced.
(2) On the commencement of the winding up, the Registrar may
appoint a person to be the liquidator of the incorporated
limited partnership.
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(3) The liquidator may be a general partner in the incorporated
limited partnership, an associate of the general partner (within
the meaning of section 67B) or any other person and need not
be a registered liquidator under the Corporations Act 2001 of
the Commonwealth.
(4) The liquidator must within 10 days of being appointed give
notice of his or her appointment in the Gazette.
(5) The liquidator must give such security as may be prescribed
and is entitled to receive such fees as are fixed by the
Registrar.
(6) Any vacancy occurring in the office of liquidator is to be
filled by a person appointed by the Registrar.
(7) The reasonable costs of a winding up required on a certificate
of the Registrar under clause 3 are payable out of the property
of the incorporated limited partnership.
6 Distribution of assets on winding up required on Registrar's
certificate
(1) On a winding up of an incorporated limited partnership
required on a certificate of the Registrar under clause 3:
(a) if the partnership agreement sets out how the assets are
to be dealt with on such a winding up, the assets must
be dealt with in accordance with the partnership
agreement, or
(b) in any other case, the assets are to be distributed among
the partners in shares that are proportionate to their
respective contributions of capital or property to the
partnership.
(2) Any person aggrieved by the operation of this clause in
relation to the assets of an incorporated limited partnership
may apply to the Supreme Court.
(3) On an application under subclause (2), the Supreme Court
may make any order relating to the disposal of the assets that
it thinks fit.
7 Application of Corporations Act to winding up
(1) The winding up of an incorporated limited partnership (other
than a voluntary winding up or a winding up required on a
certificate of the Registrar under clause 3) is declared to be an
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Partnership Amendment (Venture Capital Funds) Bill 2004
Amendments Schedule 1
applied Corporations legislation matter for the purposes of
Part 3 of the Corporations (Ancillary Provisions) Act 2001 in
relation to the provisions of Part 5.7 (Winding up bodies other
than companies) of the Corporations Act 2001 of the
Commonwealth and that Part applies as if the incorporated
limited partnership were a Part 5.7 body within the meaning
of that Act, subject to the following modifications:
(a) as if the words "or in the public interest" were inserted
in paragraph (c) (ii) of section 583 after the words "just
and equitable",
(b) as if paragraph (d) of section 583 did not form part of
that section,
(c) any other modifications (within the meaning of Part 3
of the Corporations (Ancillary Provisions) Act 2001)
that are prescribed by the regulations.
Note. Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides
for the application of provisions of the Corporations Act and Part 3 of the
ASIC Act as laws of the State in respect of any matter declared by a law
of the State (whether with or without modification) to be an applied
Corporations legislation matter for the purposes of that Part in relation to
those Commonwealth provisions. This does not apply to any provisions
that already apply to a matter as a law of the Commonwealth.
(2) The Australian Securities and Investments Commission may
perform a function conferred on it under a law applied by
subclause (1):
(a) pursuant to an agreement or arrangement of the kind
referred to in section 11 (8) or (9A) (b) of the Australian
Securities and Investments Commission Act 2001 of the
Commonwealth, and
(b) the Commission is authorised to perform that function
under section 11 of that Act.
(3) Unless a function under a law applied by subclause (1) is
conferred on the Australian Securities and Investments
Commission as referred to in subclause (2), that law applies
as if a reference in it to the Commission were a reference to
the Registrar.
8 Registrar to be notified of winding up
(1) An incorporated limited partnership must lodge with the
Registrar a notice of the commencement of the winding up of
the partnership within 7 days after:
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Partnership Amendment (Venture Capital Funds) Bill 2004
Schedule 1 Amendments
(a) the passing of a special resolution referred to in clause
2 (1) (b), or
(b) in any other case, the commencement of the winding
up.
(2) An incorporated limited partnership must lodge with the
Registrar a notice of the completion of the winding up of the
partnership within 7 days after that completion, specifying the
date on which the winding up was completed.
(3) The Registrar must, as soon as practicable after receiving a
notice under subclause (1) or (2), record the receipt of the
notice in the Register.
(4) If subclause (1) or (2) is not complied with, each general
partner of the incorporated limited partnership is guilty of an
offence.
Maximum penalty: 10 penalty units.
9 Cancellation of incorporation
(1) The Registrar must, by notice published in the Gazette, cancel
the incorporation of an incorporated limited partnership as
soon as practicable after the partnership is wound up.
(2) The Registrar must, as soon as practicable after the
publication of a notice under subclause (1), record the
cancellation of the incorporation in the Register.
(3) An incorporated limited partnership ceases to exist on the
cancellation of its incorporation under this Schedule.
Schedule 2 Savings, transitional and other
provisions
(Section 83)
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Partnership Amendment (Venture Capital Funds) Act 2004
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
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Partnership Amendment (Venture Capital Funds) Bill 2004
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(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
2 Saving of existing limited partnerships
(1) The Register of Limited Partnerships kept under section 57 as
in force immediately before the commencement of this clause
is taken on that commencement to be the Register of Limited
and Incorporated Limited Partnerships required to be kept
under the section as amended by the Partnership Amendment
(Venture Capital Funds) Act 2004.
(2) Subject to this Act, a partnership registered as a limited
partnership immediately before the commencement of this
clause is taken on that commencement to be registered as a
limited partnership in the division of limited partnerships in
the Register.
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