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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Partnership (Venture Capital Funds) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Principal Act 2
4. New Part 5 inserted in Principal Act 2
PART 5--INCORPORATED LIMITED PARTNERSHIPS 2
Division 1--Preliminary 2
81. Definitions 2
82. Application of other provisions of this Act 3
Division 2--Nature and Formation of Incorporated Limited
Partnerships 4
83. Partnership is formed on registration 4
84. Partnership is separate legal entity 4
85. Partners in an incorporated limited partnership 4
86. Partnership agreement 5
Division 3--Registration of Incorporated Limited
Partnerships 6
87. Who may apply for registration? 6
88. How is an application made? 7
89. Registration of incorporated limited partnership 9
90. Register of Incorporated Limited Partnerships 10
91. Changes in registered particulars 11
92. Certificates of registration etc. 11
93. Business Names Act 1962 not to apply 13
94. Acts preparatory to registration do not constitute
partnership 13
Division 4--Powers of Incorporated Limited Partnerships 14
95. Powers of partnership 14
96. Relationship of partners to others and between
themselves 15
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Clause Page
Division 5--Liability and Powers of Limited Partners 18
97. Limitation of liability of limited partners 18
Victorian Legislation and Parliamentary Documents
98. Limited partner not to take part in the management of
the incorporated limited partnership 19
99. Definitions, etc. applicable to section 98 24
100. Differences between partners 26
101. Change in partners 27
102. Change in status of partners 27
103. Liability in respect of conduct or acts outside the State 28
104. Recognised incorporated limited partnerships under
corresponding laws 28
105. Effect of sections 103 and 104 30
Division 6--Winding up of Incorporated Limited
Partnership 31
106. Definition 31
107. Voluntary winding up 31
108. Winding up on Director's certificate 32
109. Review of certificate 33
110. Procedure for winding up on certificate 34
111. Distribution of assets on winding up required on
Director's certificate 35
112. Application of Corporations Act to winding up 36
113. Director to be notified of winding up 38
114. Cancellation of incorporation 38
Division 7--Miscellaneous Provisions 39
115. Execution of documents 39
116. Entitlement to make assumptions 39
117. Assumptions that can be made under section 116 40
118. Identification of incorporated limited partnerships 42
119. Registered office 43
120. Lodgment of certain documents with the Director 43
121. Service 45
122. Entry in Register constitutes notice 46
123. False and misleading statements 46
124. Duty to furnish information 47
125. Confidentiality 47
126. Offences by partnerships and partners 48
127. Delegation 49
128. Regulations 49
5. Definition of partnership 51
6. Modifications of Part 3 53
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Clause Page
7. New section 64A inserted 55
64A. Effect of sections 63 and 64 55
8. Regulations 56
Victorian Legislation and Parliamentary Documents
ENDNOTES 57
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551116B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003
PARLIAMENT OF VICTORIA
Initiated in Assembly 28 October 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Partnership Act 1958 to provide for the formation of
incorporated limited partnerships and for other purposes.
Partnership (Venture Capital Funds)
Act 2003
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Partnership Act 1958 so as to provide for the
formation of incorporated limited partnerships.
5 2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
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1
Partnership (Venture Capital Funds) Act 2003
s. 3
Act No.
3. Principal Act
In this Act, the Partnership Act 1958 is called
Victorian Legislation and Parliamentary Documents
See:
the Principal Act.
Act No.
6330.
Reprint No. 6
as at
28 May 2003.
LawToday:
www.dms.
dpc.vic.
gov.au
4. New Part 5 inserted in Principal Act
5 After Part 4 of the Principal Act insert--
'PART 5--INCORPORATED LIMITED
PARTNERSHIPS
Division 1--Preliminary
81. Definitions
10 In this Part--
"Director" means Director within the
meaning of the Fair Trading Act
1999;
"firm-name", in relation to an incorporated
15 limited partnership, means the name of
the partnership as recorded in the
Register;
"general partner" means a person admitted
as a partner in an incorporated limited
20 partnership in accordance with the
partnership agreement and who is not a
limited partner;
"incorporated limited partnership" means
a partnership formed in accordance
25 with this Part;
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"liability" includes any debt, obligation or
liability of any kind, wherever and
however incurred;
Victorian Legislation and Parliamentary Documents
"limited partner" means a person admitted
5 as a partner in an incorporated limited
partnership in accordance with the
partnership agreement and whose
liability for the liabilities of the
partnership is limited in accordance
10 with this Part;
"limited partnership" has the same
meaning as in Part 3;
"partner", in relation to an incorporated
limited partnership, means a general
15 partner or a limited partner;
"person" includes a partnership;
"Register" means the Register of
Incorporated Limited Partnerships kept
under this Part;
20 "special resolution", in relation to the
limited partners, means a resolution that
has been passed by at least 75% of the
limited partners.
82. Application of other provisions of this Act
25 (1) Parts 1 and 2 (except sections 22, 26, 27(2)
and (3), 30, 31 and 34 and Division 4 of
Part 2) apply to incorporated limited
partnerships, except as provided by this Part.
Note: Section 96(5) and (6) modify the application of
30 certain provisions of Part 2.
(2) If a provision made by or under this Part is
inconsistent with a provision made by or
under any other Part that applies to
incorporated limited partnerships, the
35 provision made by or under this Part prevails
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and the other provision is (to the extent of
the inconsistency) of no force or effect in
relation to incorporated limited partnerships.
Victorian Legislation and Parliamentary Documents
Division 2--Nature and Formation of
5 Incorporated Limited Partnerships
83. Partnership is formed on registration
An incorporated limited partnership is
formed on registration under this Part.
84. Partnership is separate legal entity
10 (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
15 (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
20 except as authorised by it.
85. Partners in an incorporated limited
partnership
(1) An incorporated limited partnership must
have--
25 (a) at least one general partner but no more
than 20 general partners; and
(b) at least one limited partner.
Note: There is no limit on the number of
limited partners.
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(2) A body corporate may be a general partner
or a limited partner.
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(3) For the purposes of sub-section (1)(a)--
(a) if a general partner is a partnership and
5 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
10 to be counted; and
(b) if a general partner is a partnership and
any partner in that partnership has,
under the law of the place where the
partnership is formed, limited liability
15 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
20 partnership whose liability is so limited.
86. Partnership agreement
(1) There must at all times be in force a written
partnership agreement between the partners
in an incorporated limited partnership.
25 (2) A partnership agreement also has effect as a
contract between the incorporated limited
partnership and each partner under which the
partnership and each partner agree to observe
and perform the agreement so far as it
30 applies to them.
(3) Nothing in sub-section (2) prevents an
incorporated limited partnership itself
executing a partnership agreement.
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Division 3--Registration of Incorporated
Limited Partnerships
Victorian Legislation and Parliamentary Documents
87. Who may apply for registration?
(1) An application for registration as an
5 incorporated limited partnership may be
made, in the circumstances described in sub-
section (2), by a partnership or by persons
proposing to be the partners in the proposed
incorporated limited partnership.
10 (2) The circumstances are--
(a) that the partnership is registered under
Part 2 of the Venture Capital Act 2002
of the Commonwealth as, or a general
partner in the partnership or a proposed
15 general partner in the proposed
incorporated limited partnership intends
to apply for registration of the
partnership or proposed partnership
under that Part as--
20 (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
25 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
30 in the proposed incorporated limited
partnership intend that the partnership
or proposed partnership will meet the
requirements set out in that section for
recognition as a venture capital
35 management partnership; or
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(c) such other circumstances as are
prescribed.
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88. How is an application made?
(1) An application for registration as an
5 incorporated limited partnership is made by
lodging with the Director in accordance with
this Part a statement signed by each partner
or proposed partner.
(2) The statement must be made in the form
10 approved by the Director and must--
(a) in the case of an application by a
partnership, contain particulars of--
(i) the firm-name of the partnership;
and
15 (ii) the full address of the office or
principal office in Victoria of the
partnership (to be called the
"registered office" of the proposed
incorporated limited partnership);
20 (b) in the case of an application by persons
proposing to be the partners in the
proposed incorporated limited
partnership, contain particulars of--
(i) the proposed firm-name of the
25 proposed incorporated limited
partnership; and
(ii) the full address of the proposed
office or principal office in
Victoria of the proposed
30 incorporated limited partnership
(to be called the "registered
office" of the proposed
incorporated limited partnership);
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(c) contain a statement as to whether it is
proposed to have at the end of the firm-
name of the proposed incorporated
Victorian Legislation and Parliamentary Documents
limited partnership--
5 (i) the words "An Incorporated
Limited Partnership"; or
(ii) the expression "L.P."; or
(iii) the expression "LP";
(d) contain particulars of the full name of
10 each partner or proposed partner or, if
the partner or proposed partner is a
partnership, the name of the firm or, if
the firm does not have a name, the full
name of each partner in the firm;
15 (e) 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 body corporate) its registered
20 office or principal place of business or
(in the case of a partnership) its
registered office or principal office;
(f) contain a statement in relation to each
partner or proposed partner as to
25 whether that partner or proposed
partner is, or is proposed to be, a
general partner or a limited partner;
(g) contain a statement in relation to each
partner or proposed partner that is a
30 partnership to the effect that the partner
or proposed partner is a partnership;
(h) in the case of an application by a
partnership that is registered as a VCLP
or an AFOF under Part 2 of the Venture
35 Capital Act 2002 of the
Commonwealth, be accompanied by a
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copy of a document evidencing its
status as a VCLP or an AFOF;
Victorian Legislation and Parliamentary Documents
(i) in the case of an application by a
partnership that is a venture capital
5 management partnership within the
meaning of section 94D(3) of the
Income Tax Assessment Act 1936 of
the Commonwealth, contain a
statement that it is such a partnership;
10 (j) contain such other particulars as are
required by the regulations or by the
approved form of statement.
(3) An application under this section must be
accompanied by the prescribed fee or, if no
15 fee is prescribed, a fee of $500.00.
89. Registration of incorporated limited
partnership
(1) If an application for registration of an
incorporated limited partnership has been
20 made in accordance with section 88, the
Director may register the incorporated
limited partnership.
(2) If the Director registers an incorporated
limited partnership, the firm-name of the
25 partnership is its name as recorded in the
Register.
(3) An incorporated limited partnership must
have the words "An Incorporated Limited
Partnership" (or the expression "L.P." or
30 "LP" as an abbreviation) at the end of its
firm-name, as recorded in the Register.
(4) However, the Director must not record in the
Register as the firm-name of an incorporated
limited partnership a name that, in the
35 opinion of the Director, would not be eligible
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for registration as a business name under the
Business Names Act 1962.
Victorian Legislation and Parliamentary Documents
(5) Subject to sub-section (4), registration is
effected by recording in the Register the
5 particulars in the statement lodged with the
Director.
90. Register of Incorporated Limited
Partnerships
(1) The Director must keep a register of
10 incorporated limited partnerships registered
under this Part (to be called the "Register of
Incorporated Limited Partnerships").
(2) The Register may be kept in such form as the
Director thinks fit.
15 (3) The Director must make the information
recorded in the Register available for public
inspection, on payment of the prescribed fee
or, if no fee is prescribed, a fee of $30.00, at
the office of the Director during the ordinary
20 business hours of that office.
(4) The Director may correct any error or
omission in the Register by--
(a) inserting an entry; or
(b) amending an entry; or
25 (c) omitting an entry--
if he or she decides that the correction is
necessary.
(5) The Director must not omit an entry in the
Register unless satisfied that the whole of the
30 entry was included in error.
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91. Changes in registered particulars
(1) If any change occurs in relation to the
Victorian Legislation and Parliamentary Documents
registered particulars of an incorporated
limited partnership, a statement setting out
5 the changed particulars must be lodged with
the Director within 7 days after the change
occurred.
(2) The statement must be signed by all the
general partners, or by a general partner
10 authorised by all the general partners for the
purposes of this section.
(3) The statement must--
(a) be in the form approved by the
Director; and
15 (b) contain the particulars required by the
regulations or by the approved form of
statement; and
(c) be accompanied by the prescribed fee
or, if no fee is prescribed, a fee of
20 $70.00.
(4) If the statement is duly lodged, the Director
must record the change in the Register as
soon as possible.
(5) If sub-section (1) is not complied with, each
25 general partner in the incorporated limited
partnership is guilty of an offence and liable
to a penalty not exceeding 10 penalty units.
92. Certificates of registration etc.
(1) The Director, at the time of--
30 (a) registering an incorporated limited
partnership; or
(b) recording a change in the registered
particulars of an incorporated limited
partnership; or
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(c) correcting an error or omission in the
Register in relation to an incorporated
limited partnership--
Victorian Legislation and Parliamentary Documents
must issue to the general partners a
5 certificate as to the formation and registered
particulars as at that time of the incorporated
limited partnership.
(2) The prescribed fee or, if no fee is prescribed,
a fee of $50.00, is payable on the issue of--
10 (a) a certificate under sub-section (1)(b); or
(b) a certificate under sub-section (1)(c) if
the error or omission was not
attributable to the Director or a person
employed or engaged in the
15 administration of this Part.
(3) The Director may, on application
accompanied by the prescribed fee or, if no
fee is prescribed, a fee of $50.00, issue to the
applicant a certificate in relation to an
20 incorporated limited partnership as to the
formation and registered particulars as at that
time of the incorporated limited partnership.
(4) A certificate under this section is to be in
such form as the Director thinks fit.
25 (5) A certificate under this section--
(a) as to the formation of an incorporated
limited partnership, is conclusive
evidence that the incorporated limited
partnership was formed on the date of
30 registration referred to in the certificate;
and
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(b) as to the registered particulars as at a
specified time of an incorporated
limited partnership, is (unless the
Victorian Legislation and Parliamentary Documents
contrary is established) conclusive
5 evidence that the partnership existed at
that time; and
(c) as to the general partners and limited
partners in an incorporated limited
partnership as at a specified time, is
10 (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 an
15 incorporated limited 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.
20 93. Business Names Act 1962 not to apply
The Business Names Act 1962 does not
apply so as to require an incorporated limited
partnership to register a business name if that
name is the firm-name of the partnership
25 registered under this Part.
94. Acts preparatory to registration do not
constitute partnership
Any act done in connection with the making
of an application for registration under this
30 Part by or on behalf of persons proposing to
be the partners in a proposed incorporated
limited partnership does not of itself create a
partnership between those persons.
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Division 4--Powers of Incorporated Limited
Partnerships
Victorian Legislation and Parliamentary Documents
95. Powers of partnership
Subject to the partnership agreement, an
5 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 Victoria or outside
10 Australia--
(a) to carry on the business of the
partnership; and
(b) to do all things necessary or convenient
to be done for, or in connection with,
15 the carrying on of the business of the
partnership including (for example) the
power to--
(i) enter into contracts or otherwise
acquire rights or liabilities; or
20 (ii) create, confer, vary or cancel
interests in the partnership; or
(iii) acquire, hold and dispose of real
or personal property or of an
interest (whether beneficial or
25 legal) in real or personal property;
or
(iv) appoint agents and attorneys, and
act as agent for other persons; or
(v) form, and participate in the
30 formation of, companies or
incorporated limited partnerships;
or
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(vi) participate in partnerships, trusts,
unincorporated joint ventures and
other arrangements for the sharing
Victorian Legislation and Parliamentary Documents
of profits; or
5 (vii) do such other things as it is
authorised to do by or under this
Part or the partnership agreement.
96. Relationship of partners to others and
between themselves
10 (1) Except as otherwise provided by the
partnership agreement or agreed between the
partners--
(a) a general partner, the incorporated
limited partnership or an officer,
15 employee or agent of a general partner
or of the incorporated limited
partnership is not an agent of a limited
partner and the acts of a general partner
or of the incorporated limited
20 partnership or of such an officer,
employee or agent do not bind a limited
partner; and
(b) a limited partner is not an agent of a
general partner or of another limited
25 partner or of the incorporated limited
partnership and the acts of a limited
partner do not bind a general partner or
another limited partner or the
incorporated limited partnership itself.
30 (2) A reference in sub-section (1) to a general
partner includes, if the general partner is a
partnership, a partner in that partnership.
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(3) Nothing in sub-section (1) prevents the
making of, or limits or restricts, an
agreement between two partners or between
Victorian Legislation and Parliamentary Documents
a partner and the incorporated limited
5 partnership under which--
(a) one partner acts as an agent of another
partner or of the partnership and, by so
acting, binds the other partner or the
partnership; or
10 (b) the partnership acts as an agent of a
partner and, by so acting, binds the
partner.
(4) Any consent or authority which under this
Act is required or permitted to be given by a
15 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
20 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 case.
(5) Division 2 of Part 2, in its application to an
25 incorporated limited partnership, has effect
as if--
(a) any reference in it to a partner (other
than the reference in section 12 to the
partners and any reference in section 14
30 to a co-partner) were a reference to a
general partner only; and
(b) the reference in section 10 to a person
did not include a reference to a limited
partner; and
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(c) the words "the incorporated limited
partnership" were substituted in
section 13 for the words "the other
Victorian Legislation and Parliamentary Documents
partners"; and
5 (d) section 13 contained the following sub-
section--
"(2) Despite sub-section (1), a general
partner in an incorporated limited
partnership within the meaning of
10 Part 5 is only liable for any
liability of the partnership if the
partnership is unable to satisfy the
liability except as otherwise
provided by the partnership
15 agreement."; and
(e) any reference in section 13 or 21(2) to
the debts or obligations of the firm
were a reference to the liabilities
(within the meaning of Part 5) of the
20 incorporated limited partnership; and
(f) the words "or a limited partner" were
inserted in section 14(1) after the words
"not being a partner"; and
(g) the expression "(not including any act
25 or omission as a general partner of an
incorporated limited partnership)" were
inserted in section 14(2) after the
expression "Corporations Act,"; and
(h) the words "as newly constituted" were
30 omitted in section 21(3).
(6) Section 24(1), in its application to an
incorporated limited partnership, has effect
as if the words "the incorporated limited
partnership" were substituted for the words
35 "the partners".
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(7) A limited partner, as limited partner, is not a
proper party to any proceeding commenced
in a court or tribunal by or against the
Victorian Legislation and Parliamentary Documents
incorporated limited partnership, other than a
5 proceeding commenced by the incorporated
limited partnership against the limited
partner or by the limited partner against the
incorporated limited partnership.
(8) This section is subject to section 98 (limited
10 partner not to take part in the management of
the incorporated limited partnership).
Division 5--Liability and Powers of Limited
Partners
97. Limitation of liability of limited partners
15 (1) A limited partner has no liability for the
liabilities of the incorporated limited
partnership or of a general partner.
(2) Nothing in sub-section (1) prevents--
(a) a contribution of capital or property
20 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
25 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.
30 (3) This section is subject to section 98 (limited
partner not to take part in the management of
the incorporated limited partnership).
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98. Limited partner not to take part in the
management of the incorporated limited
partnership
Victorian Legislation and Parliamentary Documents
(1) A limited partner must not take part in the
5 management of the business of the
incorporated limited partnership.
(2) If a limited partner takes part in the
management of the business of the
incorporated limited partnership--
10 (a) the acts of the limited partner bind the
partnership in circumstances where--
(i) they would be binding on the
partnership if they were the acts of
a general partner in the
15 partnership; and
(ii) the person to whom the liability
was incurred reasonably believed,
having regard to the limited
partner's conduct at the time the
20 liability was incurred, that the
limited partner was a general
partner in the partnership; and
(b) where under paragraph (a) the
partnership is bound by the acts of the
25 limited partner, the limited partner is
liable, as if a general partner, for any
liability incurred by the partnership to a
person as a direct result of the acts of
the limited partner if the partnership is
30 unable to satisfy the liability.
(3) A limited partner is not to be regarded as
taking part in the management of the
business of the incorporated limited
partnership merely because the limited
35 partner or a person acting on behalf of the
limited partner--
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(a) is an employee or an independent
contractor of the partnership or of a
general partner, or is an officer of a
Victorian Legislation and Parliamentary Documents
general partner that is a body corporate;
5 or
(b) gives advice to, or on behalf of, the
partnership or a general partner in the
proper exercise of functions arising
from the engagement of the limited
10 partner in a professional capacity or
arising from business dealings between
the limited partner and the partnership
or between the limited partner and a
general partner; or
15 (c) gives a guarantee or indemnity in
respect of any liability of the
partnership or of a general partner; or
(d) takes any action, or participates in any
action taken by any other limited
20 partner, 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
25 agreement--
(i) calls, requisitions, convenes,
chairs, participates in, postpones,
adjourns or makes a record of a
meeting of the partners or of the
30 limited partners or of any of them;
or
(ii) whether at the meeting or in
writing or otherwise, requisitions,
formulates, signs, approves,
35 disapproves, proposes, moves,
supports, opposes, speaks to or
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votes on any resolution, or an
amendment to any resolution,
whether or not considered or to be
Victorian Legislation and Parliamentary Documents
considered at a meeting of the
5 partners or of the limited partners
or of any of them; or
(f) exercises a power conferred on the
limited partner by sub-section (4) or
under the partnership agreement or
10 otherwise has, or exercises, a right to--
(i) have access to and inspect the
books or records of the
partnership or copy any of them;
or
15 (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
20 (g) gives advice to, or consults with, or is
or acts as an officer, director, security
holder, partner, agent, employee or
independent contractor of, an associate
of the partnership; or
25 (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
30 one or more persons to, or remove one
or more persons from, a committee
which considers, approves of, consents
to or disapproves of any one or more of
the following proposals from a general
35 partner--
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(i) a proposal involving a material
change in the nature of the
business of the partnership
Victorian Legislation and Parliamentary Documents
(including a change in, or
5 departure from, any investment
guidelines, policies or conditions
relating to the business of the
partnership); or
(ii) a proposal for the adoption of a
10 method for valuing some or all of
the assets of the partnership
(including a change to,
replacement of or variation from
such a method); or
15 (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
20 partnership, or for any approval or
disapproval of investments that
the partnership does not otherwise
have a right to make; or
(iv) a proposal relating to any actual or
25 potential transaction or other
matter involving any actual or
potential conflict of interest; or
(v) a proposal relating to any actual or
potential transaction, contract,
30 arrangement or understanding
between one or more of the
partners, or their associates, and
the general partner, the
partnership or any associate of the
35 general partner or of the
partnership; or
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(vi) a proposal for the delegation,
waiver, release or variation of an
authority, right, duty or obligation
Victorian Legislation and Parliamentary Documents
of the general partner; or
5 (vii) a proposal for the appointment of
any person as a senior executive
of the general partner or of an
associate of the general partner--
but not so as to permit any direction of
10 the general partner by a limited partner
as to any matter regarding the
management of the business of the
partnership where the general partner is
acting within the terms of the
15 partnership agreement; or
(j) nominates, selects, investigates,
evaluates or negotiates with, or
participates on a committee which
proposes, considers, approves of,
20 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
25 general partner.
(4) Subject to the partnership agreement, a
limited partner or a person authorised by the
limited partner may at any time--
(a) have access to and inspect the books or
30 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
35 relation to such matters.
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(5) The provisions of this section (other than
sub-section (4)) may not be varied by the
partnership agreement or with the consent of
Victorian Legislation and Parliamentary Documents
the partners, whether given by or under the
5 partnership agreement or otherwise.
Note: Section 96(4) enables partners to give consent
by or under the partnership agreement.
99. Definitions, etc. applicable to section 98
(1) In section 98--
10 (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
15 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,
20 responsible entity, manager,
custodian, sub-custodian,
nominee, administrator, executor,
legal personal representative,
beneficiary or otherwise; and
25 (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
30 relation to the partnership; and
(iv) if the general partner or a partner
in the general partner or a person
covered by sub-paragraph (ii) or
(iii) is a body corporate, a related
35 body corporate of that body
corporate; and
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(v) a director, officer, employee,
agent, representative or security
holder of the general partner or of
Victorian Legislation and Parliamentary Documents
any partner in the general partner
5 or of a person covered by sub-
paragraph (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
10 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
15 partner in the limited partner,
whether as security holder, trustee,
responsible entity, manager,
custodian, sub-custodian,
nominee, administrator, executor,
20 legal personal representative,
beneficiary or otherwise; and
(iii) if the limited partner or a partner
in the limited partner or a person
covered by sub-paragraph (ii) is a
25 body corporate, a related body
corporate of that body corporate;
and
(iv) a director, officer, employee,
agent, representative or security
30 holder of the limited partner or of
any partner in the limited partner
or of a person covered by sub-
paragraph (ii) or (iii); and
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(c) a reference to an associate of an
incorporated limited partnership
includes a reference to--
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(i) any person or partnership in which
5 the incorporated limited
partnership has an interest,
whether as security holder or
otherwise; and
(ii) if a person or partnership covered
10 by sub-paragraph (i) is a body
corporate, a related body
corporate of that body corporate.
(2) In section 98 and this section, a reference to
a general partner in an incorporated limited
15 partnership includes, if the general partner is
a partnership, a partner in that partnership.
(3) In section 98 and this section--
"security holder", in relation to a body
(whether corporate or unincorporated)
20 includes a holder of securities (within
the meaning given by section 92(3) of
the Corporations Act) in or of the body;
"related body corporate" has the meaning
given by section 9 of the Corporations
25 Act.
100. Differences between partners
(1) A difference arising as to ordinary matters
connected with the business of an
incorporated limited partnership may be
30 decided by a majority of the general partners.
(2) The provisions of this section may be varied
with the consent of the partners.
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101. Change in partners
(1) A limited partner may, with the consent of
Victorian Legislation and Parliamentary Documents
the general partners and the agreement of the
transferee, transfer the whole or a portion of
5 the limited partner's interest in the
incorporated limited partnership.
(2) If the whole of the limited partner's interest
in the incorporated limited partnership is
transferred to the one transferee, the
10 transferee becomes a limited partner in
substitution for the transferor with all the
rights and obligations of the transferor.
(3) If only a portion of the limited partner's
interest in the incorporated limited
15 partnership is transferred to a transferee, the
transferee becomes a limited partner in
substitution for the transferor in respect of
the transferred portion and with all the rights
and obligations of the transferor in respect of
20 that portion.
(4) A person may be admitted as a partner in an
incorporated limited partnership without the
necessity to obtain the consent of any limited
partner.
25 (5) The provisions of this section may be varied
with the consent of the partners.
102. Change in status of partners
(1) If a general partner becomes a limited
partner, the partner remains liable for any
30 liability of the incorporated limited
partnership that arose before the partner
became a limited partner.
(2) If a limited partner becomes a general
partner, the partner remains not liable
35 (subject to section 98(2)) for any liability of
the incorporated limited partnership that
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arose before the partner became a general
partner.
Victorian Legislation and Parliamentary Documents
Note: Section 98(2) imposes liability in certain
circumstances on a limited partner who takes
5 part in the management of the business of the
incorporated limited partnership.
103. Liability in respect of conduct or acts
outside the State
A limited partner in an incorporated limited
10 partnership may only be liable for a liability
incurred by the partnership as a result of--
(a) the conduct of the incorporated limited
partnership's business outside the State;
or
15 (b) acts outside the State of a general
partner, a limited partner or the
incorporated limited partnership or of
any officer, employee or agent of a
general partner or of the incorporated
20 limited partnership--
in circumstances where the limited partner
would be so liable if the conduct or acts
occurred within the State.
Note: Section 98(2) imposes liability in certain
25 circumstances on a limited partner who takes
part in the management of the business of the
incorporated limited partnership.
104. Recognised incorporated limited
partnerships under corresponding laws
30 (1) In this section--
"corresponding law" means--
(a) a law of another State or of a
Territory or of another country or
jurisdiction that corresponds to
35 this Part; or
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(b) a law declared under sub-
section (3) to be a corresponding
law for the purposes of this Part;
Victorian Legislation and Parliamentary Documents
"recognised incorporated limited
5 partnership" means a partnership
formed in accordance with a
corresponding law.
(2) A partner in a recognised incorporated
limited partnership may only be liable for a
10 liability incurred by the partnership as a
result of--
(a) the conduct of the recognised
incorporated limited partnership's
business in this State; or
15 (b) the acts in this State of a partner in the
recognised incorporated limited
partnership or of the partnership itself
or of any officer, employee or agent of
such a partner or of the partnership--
20 in circumstances where the partner would be
so liable under the corresponding law if the
conduct or acts occurred in the place where
the recognised incorporated limited
partnership was formed.
25 (3) Subject to sub-sections (4) and (5), the
Governor in Council may, by Order
published in the Government Gazette,
declare a law of another State, a Territory or
another country or jurisdiction to be a
30 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
35 Governor in Council that under that law a
partner in an incorporated limited partnership
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formed in accordance with this Part and
registered or otherwise recognised under that
law may only be liable for a liability incurred
Victorian Legislation and Parliamentary Documents
by the partnership as a result of--
5 (a) the conduct in that State or Territory of
the business of the partnership; or
(b) the acts in that State or Territory of a
partner in the partnership or of the
partnership itself or of any officer,
10 employee or agent of such a partner or
of the partnership--
in circumstances where the partner would be
so liable under this Part if the conduct or acts
occurred within the State.
15 (5) The law of another country or jurisdiction
(not being another State or a Territory) may
not be declared to be a corresponding law
unless the Minister has certified to the
Governor in Council that that law provides
20 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
25 of liability of a partner in a partnership.
105. Effect of sections 103 and 104
No implication is to be taken as arising from
section 103 or 104 that a limited partner has
any liability (or but for that section would
30 have any liability) in connection with
conduct or acts outside the State that the
limited partner would not have in connection
with conduct or acts within the State.
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Division 6--Winding up of Incorporated
Limited Partnership
Victorian Legislation and Parliamentary Documents
106. Definition
In this Division--
5 "assets", in relation to an incorporated
limited partnership, means the assets
remaining after satisfaction of the
liabilities of the partnership and the
costs, charges and expenses of the
10 winding up.
107. Voluntary winding up
(1) An incorporated limited partnership may be
wound up voluntarily--
(a) in accordance with the partnership
15 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
20 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
25 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
30 the partnership.
(3) Any person aggrieved by the operation of
this section in relation to the assets of an
incorporated limited partnership may apply
to the Supreme Court.
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(4) On an application under sub-section (3) the
Supreme Court may make any order relating
to the disposal of the assets that it thinks fit.
Victorian Legislation and Parliamentary Documents
108. Winding up on Director's certificate
5 (1) The Director may, by notice given to the
incorporated limited partnership, require an
incorporated limited partnership to show
good cause why it should not be required to
be wound up if the Director is of the
10 opinion--
(a) that the partnership has ceased to carry
on business; or
(b) that, having been incorporated on the
basis that the partnership is or is
15 intended to be--
(i) registered as a VCLP or an AFOF
under Part 2 of the Venture
Capital Act 2002 of the
Commonwealth; or
20 (ii) a venture capital management
partnership within the meaning of
section 94D(3) of the Income Tax
Assessment Act 1936 of the
Commonwealth--
25 the partnership has ceased to be, or has
not within the period of 2 years after its
incorporation become, so registered or
such a partnership; or
(c) that none of the partners is a limited
30 partner; or
(d) that incorporation of the partnership has
been obtained by mistake or fraud; or
(e) that the partnership exists for an illegal
purpose.
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(2) If, on the expiration of 28 days after the
notice is given under sub-section (1), the
Director is satisfied that the incorporated
Victorian Legislation and Parliamentary Documents
limited partnership should be required to be
5 wound up, the Director may publish in the
Government Gazette a certificate as to the
requirement that the incorporated limited
partnership be wound up.
(3) The Director must give notice of the
10 publication of the certificate to the
incorporated limited partnership as soon as
possible after the publication.
(4) The Director must not publish a certificate
under sub-section (2) unless satisfied that
15 good cause has not been shown why the
incorporated limited partnership should not
be required to be wound up.
(5) A notice under sub-section (1) or (3) must be
given to the incorporated limited
20 partnership--
(a) by being served on the incorporated
limited partnership at its registered
office; or
(b) if service cannot reasonably be
25 effected, by being published in a
newspaper circulating generally in the
State.
109. Review of certificate
(1) A person whose interests are affected by a
30 decision of the Director to publish a
certificate under section 108(2) may apply to
the Supreme Court for review of the
decision.
(2) An application under sub-section (1) must be
35 made within 28 days after the certificate is
published.
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(3) The operation of the certificate is suspended
on the making of an application for review
until the application is withdrawn or the
Victorian Legislation and Parliamentary Documents
review is determined.
5 (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
cancel the certificate.
10 (5) Nothing in this section prevents the Director
cancelling a certificate published under
section 108(2) at any time after an
application is made under sub-section (1).
110. Procedure for winding up on certificate
15 (1) A winding up of an incorporated limited
partnership required on a certificate of the
Director published under section 108(2)--
(a) must be commenced--
(i) no later than the end of 28 days
20 after the day on which the
certificate is published unless an
application is made under
section 109(1); or
(ii) if an application is made under
25 section 109(1) and the Supreme
Court affirms the decision to
publish the certificate, on the
determination of the application;
and
30 (b) must be completed by the day specified
by the Director in a notice given to the
partnership, not being a day earlier than
60 days after the day on which the
notice is given.
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(2) On the commencement of the winding up,
the Director may appoint a person to be the
liquidator of the incorporated limited
Victorian Legislation and Parliamentary Documents
partnership.
5 (3) The liquidator may be a general partner in
the incorporated limited partnership and need
not be a registered liquidator under the
Corporations Act.
(4) The liquidator must within 10 days publish
10 notice of his or her appointment in the
Government Gazette.
(5) The liquidator must give such security as
may be prescribed and is entitled to receive
such fees as are fixed by the Director.
15 (6) Any vacancy occurring in the office of
liquidator is to be filled by a person
appointed by the Director.
(7) The reasonable costs of a winding up
required on a certificate of the Director
20 published under section 108(2) are payable
out of the property of the incorporated
limited partnership.
111. Distribution of assets on winding up
required on Director's certificate
25 (1) On a winding up of an incorporated limited
partnership required on a certificate of the
Director published under section 108(2)--
(a) if the partnership agreement sets out
how the assets are to be dealt with on
30 such a winding up, the assets must be
dealt with in accordance with the
partnership agreement; or
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(b) in any other case, the assets are to be
distributed among the partners in shares
that are proportionate to their respective
Victorian Legislation and Parliamentary Documents
contributions of capital or property to
5 the partnership.
(2) Any person aggrieved by the operation of
this section in relation to the assets of an
incorporated limited partnership may apply
to the Supreme Court.
10 (3) On an application under sub-section (2) the
Supreme Court may make any order relating
to the disposal of the assets that it thinks fit.
112. Application of Corporations Act to
winding up
15 (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 Director published under section
108(2)) is declared to be an applied
20 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 of the
Corporations Act (Winding up bodies other
25 than companies) 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
30 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;
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(c) any other modifications (within the
meaning of Part 3 of the Corporations
(Ancillary Provisions) Act 2001) that
Victorian Legislation and Parliamentary Documents
are prescribed by the regulations.
5 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
10 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
15 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
20 conferred on it under a law applied by sub-
section (1)--
(a) pursuant to an agreement or
arrangement of the kind referred to in
section 11(8) or (9A)(b) of the ASIC
25 Act; and
(b) if the Commission is authorised to
perform that function under section 11
of that Act.
(3) Unless a function under a law applied by
30 sub-section (1) is conferred on the Australian
Securities and Investments Commission as
referred to in sub-section (2), that law
applies as if a reference in it to the
Commission were a reference to the
35 Director.
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113. Director to be notified of winding up
(1) An incorporated limited partnership must
Victorian Legislation and Parliamentary Documents
lodge with the Director a notice of the
commencement of the winding up of the
5 partnership within 7 days after--
(a) the passing of a special resolution
referred to in section 107(1)(b); or
(b) in any other case, the commencement
of the winding up.
10 (2) An incorporated limited partnership must
lodge with the Director a notice of the
completion of the winding up of the
partnership within 7 days after that
completion, specifying the date on which the
15 winding up was completed.
(3) The Director must, as soon as practicable
after receiving a notice under sub-section (1)
or (2), record the receipt of the notice in the
Register.
20 (4) If sub-section (1) or (2) is not complied with,
each general partner in the incorporated
limited partnership is guilty of an offence
and liable to a penalty not exceeding
10 penalty units.
25 114. Cancellation of incorporation
(1) The Director must, by notice published in the
Government Gazette, cancel the
incorporation of an incorporated limited
partnership as soon as practicable after the
30 partnership is wound up.
(2) The Director must, as soon as practicable
after the publication of a notice under sub-
section (1), record the cancellation of the
incorporation in the Register.
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(3) An incorporated limited partnership ceases to
exist on the cancellation of its incorporation
under this Part.
Victorian Legislation and Parliamentary Documents
Division 7--Miscellaneous Provisions
5 115. Execution of documents
(1) All courts must take judicial notice of the
common seal of an incorporated limited
partnership affixed to a document and, until
the contrary is proved, must presume that it
10 was duly affixed.
(2) Without limiting the ways in which an
incorporated limited partnership may execute
a document (including a deed), an
incorporated limited partnership may execute
15 a document--
(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
20 to be executed as a deed and is
executed with the use of a common seal
or in accordance with paragraph (a).
116. Entitlement to make assumptions
(1) A person is entitled to make the assumptions
25 in section 117 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
30 incorrect.
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(2) A person is entitled to make the assumptions
in section 117 in relation to dealings with
another person who has, or purports to have,
Victorian Legislation and Parliamentary Documents
directly or indirectly acquired title to
5 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
10 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.
15 (4) A person is not entitled to make an
assumption in section 117 if at the time of
the dealings they knew or suspected that the
assumption was incorrect.
117. Assumptions that can be made under
20 section 116
(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
25 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--
30 (a) is a general partner in the incorporated
limited partnership; and
(b) has authority to exercise the powers and
perform the duties customarily
exercised or performed by a general
35 partner in an incorporated limited
partnership.
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(3) A person may assume that anyone who is
held out by the incorporated limited
partnership to be a general partner in, or an
Victorian Legislation and Parliamentary Documents
agent of, the incorporated limited
5 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
10 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
15 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
20 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
25 section 115(2).
(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
30 have been affixed to the document in
accordance with section 115(1).
(7) A person may assume that a general partner
in, or agent of, the incorporated limited
partnership who has authority to issue a
35 document or certified copy of a document on
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its behalf also has authority to warrant that
the document is genuine or is a true copy.
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(8) Without limiting the generality of this
section, the assumptions that may be made
5 under this section apply for the purposes of
this section.
118. Identification of incorporated limited
partnerships
(1) In this section, "document" includes any
10 letter, notice, publication, written offer,
contract, order for goods or services, invoice,
bill of exchange, promissory note, cheque,
negotiable instrument, endorsement, letter of
credit, receipt and statement of account.
15 (2) 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
20 Partnership" (or the expression "L.P." or
"LP" as an abbreviation) at the end of the
firm-name of the partnership.
(3) A person who--
(a) issues or authorises the issue of a
25 document in contravention of this
section; or
(b) being a general partner in the
incorporated limited partnership
concerned--is aware that documents
30 are being issued in contravention of this
section--
is guilty of an offence and liable to a penalty
not exceeding 20 penalty units.
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(4) The certificate of registration of an
incorporated limited partnership must be
displayed at all times in a conspicuous
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position at the registered office of the
5 partnership.
(5) If the certificate of registration is not so
displayed, each general partner in the
incorporated limited partnership is guilty of
an offence and liable to a penalty not
10 exceeding 20 penalty units.
119. Registered office
(1) An incorporated limited partnership must
keep in Victoria (at the place shown in the
Register as the address of the registered
15 office of the partnership) an office to which
all communications with the partnership may
be addressed.
(2) The regulations may prescribe the hours
during which the registered office is to be
20 open and accessible to the public.
(3) If sub-section (1) is not complied with, each
general partner in the incorporated limited
partnership is guilty of an offence and liable
to a penalty not exceeding 10 penalty units.
25 120. Lodgment of certain documents with the
Director
(1) An incorporated limited partnership that was
incorporated on the basis of an intention to
apply for registration of the partnership as a
30 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
Director a copy of a document evidencing its
35 status as a VCLP or an AFOF.
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(2) An incorporated limited partnership that was
incorporated on the basis of an intention to
meet the requirements for recognition as a
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venture capital management partnership
5 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 partnership, lodge
with the Director a statement that it is such a
10 partnership.
(3) If--
(a) the registration of an incorporated
limited partnership as a VCLP or an
AFOF under Part 2 of the Venture
15 Capital Act 2002 of the Commonwealth
is revoked; or
(b) an incorporated limited partnership
ceases to be a venture capital
management partnership within the
20 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
25 revocation took effect or it ceased to be such
a partnership, lodge with the Director a
notice of that revocation or cessation,
specifying the date on which it took effect.
(4) If an incorporated limited partnership ceases
30 to carry on business, the incorporated limited
partnership must, as soon as practicable,
lodge with the Director a notice of the
cessation, specifying the date on which it
took effect.
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(5) A copy of a document, a statement or a
notice required to be lodged with the
Director under this section must be
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accompanied by the prescribed fee or, if no
5 fee is prescribed, a fee of $70.00.
(6) A notice required to be lodged with the
Director under this section must be--
(a) in the form approved by the Director;
and
10 (b) contain the particulars required by the
regulations or the approved form of
notice.
(7) If sub-section (1), (2), (3) or (4) is not
complied with, each general partner in the
15 incorporated limited partnership is guilty of
an offence and liable to a penalty not
exceeding 10 penalty units.
121. Service
(1) Without affecting any other method of
20 serving documents on an incorporated
limited partnership, 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
25 addressed to, the registered office of the
partnership for the time being shown in the
Register.
(2) This section does not apply to a document
relating to proceedings before a court.
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122. Entry in Register constitutes notice
An entry in the Register of any particular
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fact concerning an incorporated limited
partnership, including an entry stating the
5 effect of any notice received by the Director,
is sufficient notice of the fact or of the effect
of the notice to all persons who deal with the
partnership.
123. False and misleading statements
10 (1) A person who, in a document required by or
for the purposes of this Part or lodged with
or submitted to the Director under this Part--
(a) makes or authorises the making of a
statement that to his or her knowledge
15 is false or misleading in a material
particular; or
(b) omits or authorises the omission of any
matter or thing without which the
statement is to his or her knowledge
20 misleading in a material respect--
is guilty of an offence and liable to a penalty
not exceeding 60 penalty units.
(2) A person who, in a document required by or
for the purposes of this Part or lodged with
25 or submitted to the Director under this Part--
(a) makes or authorises the making of a
statement that is false or misleading in
a material particular; or
(b) omits or authorises the omission of any
30 matter or thing without which the
statement would be misleading--
without having taken reasonable steps to
ensure that the statement was not false or
misleading or to ensure that the statement did
35 not omit any matter or thing without which
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the document would be misleading, as the
case requires, is guilty of an offence and
liable to a penalty not exceeding 60 penalty
Victorian Legislation and Parliamentary Documents
units.
5 124. 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 Director may by
notice in writing require an incorporated
10 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 Director may allow such
information as is specified in the notice.
15 (2) An incorporated limited partnership required
under sub-section (1) to furnish information
to the Director must within the period
specified in the notice or within such further
period as the Director has allowed furnish
20 such information as it is within its power to
furnish and must not furnish any information
which to its knowledge is false or misleading
in a material particular.
Penalty: 60 penalty units.
25 125. Confidentiality
(1) The Director or a person employed or
engaged in the administration of this Part
must not, except to the extent necessary to
carry out their functions under this Part, give
30 to any other person, whether directly or
indirectly, any information acquired by the
Director or that person (as the case requires)
in carrying out those functions.
Penalty: 60 penalty units.
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(2) Sub-section (1) does not apply to the giving
of information--
Victorian Legislation and Parliamentary Documents
(a) to a court or tribunal in the course of
legal proceedings; or
5 (b) pursuant to an order of a court or
tribunal; or
(c) to the extent reasonably required to
enable the investigation or the
enforcement of a law of this State or of
10 any other State or of a Territory or of
the Commonwealth; or
(d) with the written authority of the person
to whom the information relates.
126. Offences by partnerships and partners
15 (1) If this Part provides that a person, being a
partnership (other than a partnership that is
incorporated or is otherwise a separate legal
entity), is guilty of an offence, that reference
to the person is to be read as a reference to--
20 (a) each partner in the partnership; or
(b) in the case of a partnership in which
any partner has under the law of the
place where it is formed limited
liability for the liabilities of the
25 partnership, each partner in the
partnership whose liability is not so
limited.
(2) In any proceeding against a partner for an
offence against this Part brought in reliance
30 on sub-section (1) or under section 91(5),
113(4), 118(5), 119(3) or 120(7) it is a
defence to the charge for the partner to prove
that the partner took all reasonable
precautions and exercised all due diligence
35 to avoid the commission of the offence.
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127. Delegation
The Director, by instrument, may delegate to
Victorian Legislation and Parliamentary Documents
any person or class of person employed
under Part 3 of the Public Sector
5 Management and Employment Act 1998
in the administration of this Part, any of the
Director's functions or powers under this
Part, other than this power of delegation.
128. Regulations
10 (1) The Governor in Council may make
regulations for or with respect to any matter
or thing required or permitted by this Part to
be prescribed or necessary to be prescribed
to give effect to this Part.
15 (2) Without limiting sub-section (1), the
regulations may make provision for or with
respect to--
(a) the keeping of records by an
incorporated limited partnership; and
20 (b) information or copies of records or
documents required to be provided to
the Director by an incorporated limited
partnership; and
(c) the form in which any record required
25 under this Part to be kept is to be kept;
and
(d) the fees required to accompany an
application, statement, notice or other
document lodged under this Part or the
30 fees payable for the inspection of the
Register or for the issue of certificates
of information recorded in the Register.
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(3) A power conferred by this Part to make
regulations may be exercised--
Victorian Legislation and Parliamentary Documents
(a) either in relation to all cases to which
the power extends, or in relation to all
5 those cases subject to specified
exceptions, or in relation to any
specified case or class of case; and
(b) so as to make, as respects the cases in
relation to which the power is
10 exercised--
(i) the same provision for all cases in
relation to which the power is
exercised, or different provisions
for different cases or classes of
15 case, or different provisions for
the same case or class of case for
different purposes; or
(ii) any such provision either
unconditionally or subject to any
20 specified condition.
(4) Regulations made under this Part may be
made--
(a) so as to apply at all times or at a
specified time; and
25 (b) so as to require a matter affected by the
regulations to be--
(i) in accordance with a specified
standard or specified requirement;
or
30 (ii) approved by or to the satisfaction
of a specified person or a specified
class of persons; or
(iii) as specified in both sub-
paragraphs (i) and (ii); and
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(c) so as to apply, adopt or incorporate any
matter contained in any document,
code, standard, rule, specification or
Victorian Legislation and Parliamentary Documents
method formulated, issued, prescribed
5 or published by any person whether--
(i) wholly or partially or as amended
by the regulations; or
(ii) as formulated, issued, prescribed
or published at the time the
10 regulations are made or at any
time before then; and
(d) so as to confer a discretionary authority
or impose a duty on a specified person
or a specified class of persons; and
15 (e) so as to provide in a specified case or
class of case for the exemption of
persons or things or a class of persons
or things from any of the provisions of
the regulations, whether
20 unconditionally or on specified
conditions and either wholly or to such
an extent as is specified; and
(f) so as to impose a penalty not exceeding
20 penalty units for a contravention of
25 the regulations.
(5) Nothing in this section limits the operation
of section 79B or 80.'.
5. Definition of partnership
(1) In section 5(1) of the Principal Act, after "profit"
30 insert "and includes an incorporated limited
partnership within the meaning of Part 5".
(2) After section 5(1) of the Principal Act insert--
'(1A) A reference in the following sections to a
partnership includes a reference to a
35 partnership formed in accordance with a law
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of another State, a Territory or another
country or jurisdiction, whether or not under
that law the liability of any partner for the
Victorian Legislation and Parliamentary Documents
liabilities of the partnership is limited and
5 whether or not under that law the partnership
is incorporated or is otherwise a separate
legal entity--
(a) section 51(3);
(b) section 54(2)(d), (e), (fa) and (h) as
10 applying in cases where a partner is a
partnership;
(c) section 60(3);
(d) section 64(5);
(e) section 85(3);
15 (f) section 88(2)(d), (e) and (g) as applying
in cases where a partner or proposed
partner is a partnership;
(g) section 95(b)(vi);
(h) section 96(2);
20 (i) sections 99(1)(a)(i), (1)(b)(i), (1)(c)
and 99(2);
(j) sections 104(1) (definition of
"recognised incorporated limited
partnership"), 104(2), 104(5) and
25 104(6).'.
(3) In section 5(2) of the Principal Act, after
"association" insert "(other than, for the purposes
of the sections specified in sub-section (1A), a
partnership which under the law of the place
30 where it is formed is incorporated or is otherwise
a separate legal entity)".
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(4) After section 5(2) of the Principal Act insert--
"(3) A reference in this Act to a firm includes a
Victorian Legislation and Parliamentary Documents
reference to an incorporated limited
partnership within the meaning of Part 5.".
5 6. Modifications of Part 3
(1) In section 49(1) of the Principal Act--
(a) the definition of "debt" is repealed; and
(b) after the definition of "general partner"
insert--
10 ' "liability" includes any debt, obligation or
liability of any kind, wherever and
however incurred;'; and
(c) in the definition of "limited partner", for "to
contribute to the debts or obligations"
15 substitute "for the liabilities".
(2) After section 51(2) of the Principal Act insert--
"(3) For the purposes of sub-section (2)--
(a) if a general partner is a partnership and
no partner in that partnership has, under
20 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
25 (b) if a general partner is a 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
30 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
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partnership whose liability is so
limited.".
Victorian Legislation and Parliamentary Documents
(3) In section 54(2) of the Principal Act--
(a) in paragraph (d) after "partner" insert "or, if
5 the partner is a partnership, the name of the
firm or, if the firm does not have a name, the
full name of each partner in the firm"; and
(b) in paragraph (e) after "business" insert "or
(in the case of a partnership) its registered
10 office or principal office"; and
(c) after paragraph (f) insert--
"(fa) a statement in relation to each partner
that is a partnership to the effect that
the partner is a partnership;"; and
15 (d) in paragraph (h)--
(i) after "property" insert "(or, in the case
of a limited partner that is a partnership,
the aggregate amounts of capital or
values of property)"; and
20 (ii) after "outstanding" insert "(or, in the
case of a limited partner that is a
partnership, the aggregate amounts or
values actually contributed and the
aggregate amounts or values
25 outstanding)".
(4) In section 56(2)(b) of the Principal Act, after
"concerned" insert "or, if that limited partner is a
limited partnership, by all the general partners in
that limited partnership or by a general partner in
30 that limited partnership authorised by all the
general partners in that limited partnership for the
purposes of this section".
(5) In section 60(1) of the Principal Act, for "debts or
obligations" substitute "liabilities".
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(6) After section 60(2) of the Principal Act insert--
"(3) If a partnership (the investing partnership)
Victorian Legislation and Parliamentary Documents
is a limited partner in a limited partnership
(the principal partnership), a partner in the
5 investing partnership has no separate liability
to contribute to the liabilities of the principal
partnership, but nothing in this sub-section
affects any liability of the investing
partnership as a limited partner to contribute
10 to those liabilities.".
(7) In sections 61(1) and (2), 62(1) and (2), 63, 64(2)
and (3) and 67(3)(c) of the Principal Act, for "debt
or obligation" substitute "liability".
(8) After section 64(4) of the Principal Act insert--
15 "(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.".
(9) In section 67(2) of the Principal Act, for "debts
20 and obligations" substitute "liabilities".
(10) In section 70(1)(b) of the Principal Act, for "debts
or obligations" substitute "liabilities".
7. New section 64A inserted
After section 64 of the Principal Act insert--
25 "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
30 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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8. Regulations
In section 80(1) of the Principal Act, for "Part"
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(where twice occurring) substitute "Act".
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Endnotes
Act No.
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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