South Australia: Partnership Act 1891 (SA)

South Australia Partnership Act 1891 An Act to declare and amend the law of partnership. Contents Part 1—Preliminary 1A Short title 1B Interpretation 1C Application of laws to partnerships and incorporated limited partnerships Part 2—Partnerships generally Division 1—Nature of partnerships 1 Definition of partnership 2 Rules for determining existence of partnership 3 Postponement of rights of person lending or selling in consideration of share of profits in case of insolvency 4 Meaning of firm Division 2—Relationship of partners to persons dealing with them 5 Power of partner to bind firm 6 Partners bound by acts on behalf of firm 7 Partner using credit of firm for private purposes 8 Effect of notice that firm will not be bound by acts of partner 9 Liability of partners 10 Liability of firm for wrongs 11 Misapplication of money or property received for or in custody of the firm 12 Liability for wrongs joint and several 13 Improper employment of trust property for partnership purposes 14 Persons liable by holding out 15 Admissions and representations of partners 16 Notice to acting partners to be notice to firm 17 Liabilities of incoming and outgoing partners 18 Revocation of continuing guaranty by change in firm Division 3—Relationship between partners 19 Variation by consent of terms of partnership 20 Partnership property of firms other than incorporated limited partnerships 20A Partnership property of incorporated limited partnership 21 Property bought with partnership money 22 Conversion into personal estate of land held as partnership property 23 Procedure against partnership property for a partner's separate judgment debt 24 Rules as to interests and duties of partners other than partners in incorporated limited partnership subject to special agreement 25 Expulsion of partner 26 Retirement from partnership at will 27 Where partnership for term is continued over, continuance on old terms presumed 28 Duties of partners to render accounts etc 29 Accountability of partners for private profits 30 Duty of partner not to compete with firm 31 Rights of assignee of share in partnership Division 4—Dissolution of partnership 31A Division does not apply to incorporated limited partnerships 32 Dissolution by expiration or notice 33 Dissolution by insolvency, death, or charge 34 Dissolution by illegality of partnership 35 Dissolution by the court 36 Rights of persons dealing with firm against apparent members of firm 37 Right of partners to notify dissolution 38 Continuing authority of partners for purposes of winding up 39 Rights of partners as to application of partnership property 40 Apportionment of premium where partnership prematurely dissolved 41 Rights where partnership dissolved for fraud or misrepresentation 42 Right of outgoing partner in certain cases to share profits made after dissolution 43 Retiring or deceased partner's share to be a debt 44 Rule for distribution of assets on final settlement of accounts Part 3—Limited partnerships and incorporated limited partnerships Division 1—Application of Act to limited partnerships and incorporated limited partnerships 47 Application of Act to limited partnerships and incorporated limited partnerships Division 2—Nature and formation of limited partnerships and incorporated limited partnerships 48 Limited partnership or incorporated limited partnership is formed on registration 49 Composition of limited partnership or incorporated limited partnership 50 Size of a limited partnership or incorporated limited partnership 51 Incorporated limited partnership is separate legal entity 51A Powers of incorporated limited partnership 51B Partnership agreement 51C Relationship of partners in incorporated limited partnership to others and between themselves Division 3—Registration of limited partnerships and incorporated limited partnerships 51D Who may apply for registration? 52 Application for registration 53 Registration of limited partnership or incorporated limited partnership 53A Acts preparatory to registration do not constitute partnership 54 Register of Limited Partnerships and Incorporated Limited Partnerships 55 Changes in registered particulars 56 Certificates of registration 57 Commission may correct Register Division 4—Limitation of liability of limited partners in limited partnership 58 Liability of limited partner limited to amount shown in Register 59 Change in liability of limited partner 60 Change in status of partners 61 Liability for business conducted outside the State 62 Liability for limited partnerships formed under corresponding laws 62A Effect of sections 61 and 62 63 Contribution towards discharge of liabilities 64 Limitation on liability may not be varied by partnership agreement etc Division 4A—Limitation of liability of limited partners in incorporated limited partnerships 64A Limitation of liability of limited partners 64B Change in status of partners 64C Liability in respect of conduct or acts or omissions outside the State 64D Incorporated limited partnerships formed under corresponding laws 64E Effect of sections 64C and 64D Division 5—Other modifications of general law of partnership 65 Limited partner not to take part in management of limited partnership 65A Limited partner not to take part in management of incorporated limited partnership 65B Definitions etc applicable to section 65A 66 Differences between partners 67 Change in partners Division 6—Dissolution and cessation of limited partnerships and incorporated limited partnerships 68 Dissolution not available in certain cases 69 Cessation of limited partnerships 70 Registration of dissolution or cessation of limited partnership 71 Winding up by general partners 71A Winding up of incorporated limited partnerships Division 7—Miscellaneous 71B Execution of documents 71C Entitlement to make assumptions 71D Assumptions that may be made under section 71C 71E Lodgment of certain documents with Commission 72 Signing of documents to be lodged with Commission 73 Model limited partnership agreement 74 Certain convicted offenders not to carry on business as general partners 75 Identification of limited partnerships and incorporated limited partnerships 76 Registered office 77 Service 78 Entry in Register constitutes notice 79 Giving false or misleading information 79A Offences by partnerships 79B Duty to furnish information 79C Confidentiality 80 Statutory declaration 81 General power of exemption of Commission 83 Regulations 84 Relationship with Corporations legislation Schedule 1—Savings, transitional and other provisions Part 1—General 1 Regulations Part 2—Provisions consequent on enactment of Partnership (Venture Capital Funds) Amendment Act 2005 2 Saving of existing limited partnerships Part 3—Provisions consequent on enactment of Partnership (Venture Capital) Amendment Act 2008 3 Applications for registration of ESVCLPs or proposed ESVCLPs made before amendments commence Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1A—Short title This Act may be cited as the Partnership Act 1891. 1B—Interpretation (1) In this Act— business includes any trade, occupation or profession; Commission means the Corporate Affairs Commission; Court means the Supreme Court of South Australia; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; 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; 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 48(2); liability includes any debt, obligation or liability of any kind, wherever and however incurred; 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 Part 3; 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 48(1); partner in a limited partnership or incorporated limited partnership means a general partner or a limited partner; Register means the Register of Limited Partnerships and Incorporated Limited Partnerships kept under Part 3; registered particulars means particulars recorded in the Register; spouse—a person is the spouse of another if they are legally married. (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. 1C—Application of laws to partnerships and incorporated limited partnerships (1) Except so far as they are inconsistent with the express provisions of this Act, the rules of equity and common law relating to partnership will continue in force. (2) However, 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. Part 2—Partnerships generally Division 1—Nature of partnerships 1—Definition of partnership (1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit and includes an incorporated limited partnership. (2) But the relation between members of any company or association which is— (a) incorporated under the Corporations Law; or (b) formed or incorporated by or in pursuance of any other Act of Parliament, or letters patent, or Royal Charter: is not a partnership within the meaning of this Act. 2—Rules for determining existence of partnership (1) In determining whether a partnership does or does not exist, regard must be had to the following rules: (a) joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use of the property so held; (b) the sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or do not have a joint or common right or interest in any property from which or from the use of which the returns are derived; (c) the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business; but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make the person a partner in the business; and, in particular— (i) the receipt by a person of a debt or other liquidated amount, by instalments or otherwise, out of the accruing profits of a business, does not of itself make the person a partner in the business or liable as such; (ii) a contract for the remuneration of a servant or agent of a person engaged in a business, by a share of the profits of the business, does not of itself make the servant or agent a partner in the business or liable as such; (iii) a person being the spouse, domestic partner or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such; (iv) the advance of money by way of loan to a person engaged or about to engage in any business, on a contract with that person that the lender will receive a rate of interest varying with the profits, or will receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such if the contract is in writing and is signed by or on behalf of all the parties to the contract; (v) a person receiving, by way of annuity or otherwise, a portion of the profits of a business in consideration of the sale by the person of the goodwill of the business, is not by reason only of such receipt a partner in the business or liable as such. (2) This section does not apply to or in respect of an incorporated limited partnership. 3—Postponement of rights of person lending or selling in consideration of share of profits in case of insolvency In the event of any person to whom money has been advanced by way of loan under a contract of a type mentioned in section 2, or of any buyer of a goodwill in consideration of a share of the profits of the business, being adjudicated insolvent or taking the benefit of any Act for the relief of insolvent debtors, or entering into an arrangement to pay the person's creditors less than one hundred cents in the dollar, or dying in insolvent circumstances, the lender of the loan is not entitled to recover anything in respect of the loan, and the seller of the goodwill is not entitled to recover anything in respect of the share of profits contracted for, until the claims of the other creditors of the borrower or buyer for valuable consideration in money or money's worth have been satisfied. 4—Meaning of firm Persons who have entered into partnership other than an incorporated limited partnership with one another are, for the purposes of this Act, called collectively a firm, and the name under which their business is carried on is called the firm-name. Note— On the meaning of firm and firm-name in relation to an incorporated limited partnership, see section 1B. Division 2—Relationship of partners to persons dealing with them 5—Power of partner to bind firm (1) Every partner in a partnership other than a firm that is a limited partnership or incorporated limited partnership is an agent of the firm and of the other partners for the purpose of the business of the partnership; and the acts of every 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 partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom the partner is dealing either knows that the partner has no authority, or does not know or believe the partner to be a partner. (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, binds the firm and the other general partners, unless— (a) the general partner so acting 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. 6—Partners bound by acts on behalf of firm (1) An act or instrument relating to the business of a firm other than an incorporated limited partnership and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person authorised, whether a partner or not, is binding on the firm and all the partners. (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. 7—Partner using credit of firm for private purposes (1) Where one partner pledges the credit of a firm other than 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 partner is in fact specially authorised by the other partners; but this section does not affect any personal liability incurred by an individual partner. (2) Where one 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. 8—Effect of notice that firm will not be bound by acts of partner (1) If it has been agreed between the partners that any restriction will be placed on the power of any one or more of them to bind a firm other than a firm that is an incorporated limited partnership, no act done in contravention of the agreement is binding on the firm with respect to persons having notice of the agreement. (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. 9—Liability of partners (1) Every partner in a firm other than an incorporated limited partnership is liable jointly with the other partners for all debts and obligations of the firm incurred while the partner is a partner; and (if the partner is an individual) after the partner's death the partner's estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied, but subject to the prior payment of the partner's separate debts. (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. 10—Liability of firm for wrongs (1) Subject to subsection (2), where, by any wrongful act or omission of any partner in a firm other than an incorporated limited partnership acting in the ordinary course of the business of the firm, or with the authority of the partner's co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable for the loss, injury or penalty to the same extent as the partner so acting or omitting to act. (2) For the purposes of subsection (1), a partner in a firm other than an incorporated limited partnership who commits a wrongful act or omission as a member of the governing body of a body corporate is not to be taken to be acting in the ordinary course of business of the firm or with the authority of the partner's co-partners only because of one or more of the following: (a) the partner obtained the agreement or authority of the partner's co-partners, or some of them, to be appointed or to act as a member of the governing body; (b) remuneration that the partner receives for acting as a member of the body corporate forms part of the income of the firm; (c) any co-partner is also a member of the governing body of that or any other body corporate. (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 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. (5) In this section— member of a governing body of a body corporate includes a director. 11—Misapplication of money or property received for or in custody of the firm (1) In the following cases involving the partners of a firm other than an incorporated limited partnership, namely— (a) where one partner, acting within the scope of the partner's apparent authority, receives the money or property of a third person and misapplies it; and (b) where a firm 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 partners while it is in the custody of the firm, the firm is liable to make good the loss. (2) In the following cases involving general partners in an incorporated limited partnership, namely: (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; or (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. 12—Liability for wrongs joint and several (1) Every partner in a firm other than an incorporated limited partnership is liable jointly with the partner's co-partners, and also severally, for everything for which the firm, while the partner is a partner of it, becomes liable under section 10 or 11. (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. 13—Improper employment of trust property for partnership purposes (1) If a partner in a firm other than an incorporated limited partnership, being a trustee, improperly employs trust property in the business or on the account of the partnership, no other partner is liable for the trust property to the persons beneficially interested in it. (1a) However— (a) this section does not affect any liability incurred by a partner by reason of the partner's having notice of a breach of trust; and (b) nothing in this section prevents trust money from being followed and recovered from the firm if it is still in the firm's possession or under its control. (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. 14—Persons liable by holding out (1) 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 partner in a particular firm that is a firm other than a limited partnership or incorporated limited partnership, is liable as a 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 partner making the representation, or suffering it to be made. (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. (2) However, where after a partner's death the partnership business is continued in the old firm-name, the continued use of that name, or of the deceased partner's name as part of that name, does not of itself make the partner's executor's or administrator's estate or effects liable for any partnership debts contracted after the partner's death. 15—Admissions and representations of partners (1) An admission or representation made by any partner in a firm other than a limited partnership or incorporated limited partnership concerning the partnership affairs, and in the ordinary course of its business, is evidence against the firm. (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. 16—Notice to acting partners to be notice to firm (1) Notice to any partner in a firm other than 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. (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. 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. (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 1B. (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. 18—Revocation of continuing guaranty by change in firm (1) A continuing guaranty or cautionary obligation given either to a firm or to a third person in respect of the transactions of a firm is, in the absence of agreement to the contrary, revoked as to future transactions by any change in the constitution of the firm to which, or of the firm in respect of the transactions of which, the guaranty or obligation was given. (2) This section does not apply to or in respect of an incorporated limited partnership. Division 3—Relationship between partners 19—Variation by consent of terms of partnership The mutual rights and duties of partners, whether ascertained by agreement or defined by this Act, may be varied by the consent of all the partners, and such consent may be either express or inferred from a course of dealing. 20—Partnership property of firms other than incorporated limited partnerships (1) All property and rights and interests in property originally brought into the partnership stock, or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement. (2) However, the legal estate or interest in any land which belongs to the partnership will devolve according to the nature and tenure of the estate or interest and the general rules of law applicable, but in trust, so far as necessary, for the persons beneficially interested in the land under this section. (3) When co-owners of an estate or interest in any land, not being itself partnership property, are partners as to profits made by the use of that land or estate, and purchase other land or estate out of the profits to be used in like manner, the land or estate so purchased belongs to them, in the absence of an agreement to the contrary, not as partners, but as co-owners for the same respective estates and interests as are held by them in the land or estate first mentioned at the date of the purchase. (4) This section does not apply to or in respect of an incorporated limited partnership. 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. 21—Property bought with partnership money Unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm. 22—Conversion into personal estate of land held as partnership property (1) Where land or any interest in land has become partnership property, it will, unless the contrary intention appears, be treated as between the partners (including the representatives of a deceased partner) as personal and not real estate. (2) This section does not apply to or in respect of an incorporated limited partnership. 23—Procedure against partnership property for a partner's separate judgment debt (1) After the commencement of this Act a writ of execution will not issue against any partnership property, except on a judgment against the firm. (2) A court may, on the application by summons of any judgment creditor of a partner, make an order charging that partner's interest in the partnership property and profits with payment of the amount of the judgment debt and interest on the judgment debt, and may by the same or a subsequent order appoint a receiver of that partner's share of profits (whether already declared or accruing), and of any other money which may be coming to the partner in respect of the partnership, and direct all accounts and inquiries, and give all other orders and directions which might have been directed or given if the charge had been made in favour of the judgment creditor by the partner, or which the circumstances of the case may require. (3) The other partner or partners will be at liberty at any time to redeem the interest charged, or, in case of a sale being directed, to purchase the same. (4) Subsections (2) and (3) do not apply to or in respect of an incorporated limited partnership. 24—Rules as to interests and duties of partners other than partners in incorporated limited partnership subject to special agreement (1) The interests of partners in the partnership property and their rights and duties in relation to the partnership will be determined, subject to any agreement, express or implied, between the partners, by the following rules: (a) all the partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses, whether of capital or otherwise, sustained by the firm; (b) the firm must indemnify every partner in respect of payments made and personal liabilities incurred by the partner— (i) in the ordinary and proper conduct of the business of the firm; or (ii) in or about anything necessarily done for the preservation of the business or property of the firm; (c) a partner making, for the purpose of the partnership, any actual payment or advance beyond the amount of capital which the partner has agreed to subscribe, is entitled to interest at the rate of seven per centum per annum from the date of the payment or advance; (d) a partner is not entitled, before the ascertainment of profits, to interest on the capital subscribed by the partner; (e) every partner may take part in the management of the partnership business; (f) no partner will be entitled to remuneration for acting in the partnership business; (g) no person may be introduced as a partner without the consent of all existing partners; (h) any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners; (i) the partnership books are to be kept at the place of business of the partnership (or the principal place, if there is more than one), and every partner may, when the partner thinks fit, have access to and inspect and copy any of them. (2) This section does not apply to or in respect of an incorporated limited partnership. 25—Expulsion of partner No majority of the partners can expel any partner unless a power to do so has been conferred by express agreement between the partners. 26—Retirement from partnership at will (1) Where no fixed term has been agreed upon for the duration of the partnership, any partner may determine the partnership at any time on giving notice of the partner's intention so to do to all the other partners. (2) Where the partnership has originally been constituted by deed, a notice in writing, signed by the partner giving it, will be sufficient for this purpose. (3) This section does not apply to or in respect of a limited partnership or incorporated limited partnership. 27—Where partnership for term is continued over, continuance on old terms presumed (1) Where a partnership entered into for a fixed term is continued after the term has expired, and without any express new agreement, the rights and duties of the partners remain the same as they were at the expiration of the term, so far as is consistent with the incidents of a partnership at will. (2) A continuance of the business by the partners, or such of them as habitually acted in the business during the term, without any settlement or liquidation of the partnership affairs, is presumed to be a continuance of the partnership. (3) This section does not apply to or in respect of an incorporated limited partnership. 28—Duties of partners to render accounts etc (1) Partners in a firm other than an incorporated limited partnership are bound to render true accounts and full information of all things affecting the partnership to any partner or to any partner's legal representatives. (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. 29—Accountability of partners for private profits (1) Every partner must account to the firm for any benefit derived by the partner without the consent of the other partners from any transaction concerning the partnership, or from any use by the partner of the partnership property, name, or business connection. (2) This section applies also to transactions undertaken after a partnership has been dissolved by the death of a partner, and before the affairs of the partnership have been completely wound up, either by any surviving partner or by the representatives of the deceased partner. (3) This section does not apply to or in respect of an incorporated limited partnership. 30—Duty of partner not to compete with firm (1) If a partner without the consent of the other partners, carries on any business of the same nature as and competing with that of the firm, the partner must account for and pay over to the firm all profits made by the partner in that business. (2) This section does not apply to or in respect of an incorporated limited partnership. 31—Rights of assignee of share in partnership (1) An assignment by any partner of the partner's share in the partnership, either absolute or by way of mortgage or redeemable charge, does not, as against the other partners, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any accounts of the partnership transactions, or to inspect the partnership books, but entitles the assignee only to receive the share of profits to which the assigning partner would otherwise be entitled, and the assignee must accept the account of profits agreed to by the partners. (2) In case of a dissolution of the partnership, whether as respects all the partners or as respects the assigning partner, the assignee is entitled to receive the share of the partnership assets to which the assigning partner is entitled as between the partner and the other partners, and, for the purpose of ascertaining that share, to an account as from the date of the dissolution. (3) This section does not apply to or in respect of an incorporated limited partnership. Division 4—Dissolution of partnership 31A—Division does not apply to incorporated limited partnerships This Division does not apply to or in respect of an incorporated limited partnership. 32—Dissolution by expiration or notice Subject to any agreement between the partners, a partnership is dissolved— (a) if entered into for a fixed term, by the expiration of that term; (b) if entered into for a single adventure or undertaking, by the termination of that adventure or undertaking; (c) if entered into for an undefined time, by any partner giving notice to the other or others of the partner's intention to dissolve the partnership. In the last-mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice. 33—Dissolution by insolvency, death, or charge (1) Subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or insolvency of any partner. (2) A partnership may, at the option of the other partners, be dissolved if any partner suffers the partner's share of the partnership property to be charged under this Act for the partner's separate debt. 34—Dissolution by illegality of partnership A partnership is in every case dissolved by the happening of any event which makes it unlawful for the business of the firm to be carried on, or for the members of the firm to carry it on in partnership. 35—Dissolution by the court On application by a partner the Court may decree a dissolution of the partnership in any of the following cases: (a) when a partner becomes, through permanent mental incapacity, incapable of managing the partner's affairs, in which case the application may be made on behalf of that partner by the partner's guardian, committee, next friend or other person having title to intervene or by any other partner; (b) when a partner, other than the partner suing, becomes in any other way permanently incapable of performing the partner's part of the partnership contract; (c) when a partner, other than the partner suing, has been guilty of such conduct as, in the opinion of the Court, regard being had to the nature of the business, is calculated to prejudicially affect the carrying on of the business; (d) when a partner, other than the partner suing, wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself or herself in matters relating to the partnership business that it is not reasonably practicable for the other partner or partners to carry on the business in partnership with the partner; (e) when the business of the partnership can only be carried on at a loss; (f) whenever in any case circumstances have arisen which, in the opinion of the Court, render it just and equitable that the partnership be dissolved. 36—Rights of persons dealing with firm against apparent members of firm (1) Where a person deals with a firm after a change in its constitution, the person is entitled to treat all apparent members of the old firm as still being members of the firm until the person has notice of the change. (2) An advertisement in the Gazette will be notice as to persons who did not have dealings with the firm before the date of the dissolution or change so advertised. (3) The estate of a partner who dies, or who becomes insolvent, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable for partnership debts contracted after the date of the death, insolvency, or retirement, respectively. 37—Right of partners to notify dissolution On the dissolution of a partnership or retirement of a partner any partner may publicly notify the same, and may require the other partner or partners to concur for that purpose in all necessary or proper acts, if any, which cannot be done without the partner's or their concurrence. 38—Continuing authority of partners for purposes of winding up (1) Subject to this section, after the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise. (2) The firm is not bound by the acts of an insolvent partner (however this does not affect the liability of a person who, after the insolvency, represents himself or herself, or knowingly suffers himself or herself to be represented, as a partner of the insolvent). 39—Rights of partners as to application of partnership property On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or his or her representatives may on the termination of the partnership apply to the Court to wind up the business and affairs of the firm. 40—Apportionment of premium where partnership prematurely dissolved Where one partner has paid a premium to another on entering into a partnership for a fixed term, and the partnership is dissolved before the expiration of that term otherwise than by the death of a partner, the Court may order the repayment of the premium, or of such part of the premium as it thinks just, having regard to the terms of the partnership contract and to the length of time during which the partnership has continued; unless— (a) the dissolution is, in the judgment of the Court, wholly or chiefly due to the misconduct of the partner who paid the premium; or (b) the partnership has been dissolved by an agreement containing no provision for a return of any part of the premium. 41—Rights where partnership dissolved for fraud or misrepresentation Where a partnership contract is rescinded on the ground of the fraud or misrepresentation of one of the parties to the contract, the party entitled to rescind is, without prejudice to any other right, entitled— (a) to a lien on, or right of retention of, the surplus of the partnership assets, after satisfying the partnership liabilities, for any sum of money paid by the party for the purchase of a share in the partnership and for any capital contributed by the party; and (b) to stand in the place of the creditors of the firm for any payments made by the party in respect of the partnership liabilities; and (c) to be indemnified, by the person guilty of the fraud or making the representation, against all the debts and liabilities of the firm. 42—Right of outgoing partner in certain cases to share profits made after dissolution (1) Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with its capital or assets without any final settlement of accounts as between the firm and the outgoing partner or the partner's estate, then, in the absence of any agreement to the contrary, the outgoing partner or the partner's estate is entitled, at the option of the partner or the partner's representatives, to such share of the profits made since the dissolution as the Court may find to be attributable to the use of the partner's share of the partnership assets, or to interest at the rate of seven per cent per annum on the amount of the partner's share of the partnership assets. (2) However, where by the partnership contract an option is given to surviving or continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly exercised, the estate of the deceased partner, or the outgoing partner or the partner's estate, as the case may be, is not entitled to any further or other share of profits; but if any partner, assuming to act in exercise of the option, does not in all material respects comply with the terms of the option contained in the contract, the partner is liable to account under the foregoing provisions of this section. 43—Retiring or deceased partner's share to be a debt Subject to any agreement between the partners, the amount due from surviving or continuing partners to an outgoing partner, or the representatives of a deceased partner in respect of the outgoing or deceased partner's share is a debt accruing at the date of the dissolution or death. 44—Rule for distribution of assets on final settlement of accounts In settling accounts between the partners after a dissolution of partnership, the following rules must, subject to any agreement, be observed: (a) losses, including losses and deficiencies of capital, will be paid first out of profits, next out of capital, and lastly, if necessary, by the partners individually in the proportion in which they were entitled to share profits; (b) the assets of the firm including the sums, if any, contributed by the partners to make up losses or deficiencies of capital, will be applied in the following manner and order: (i) in paying the debts and liabilities of the firm to persons who are not partners of the firm; (ii) in paying to each partner ratably what is due from the firm to the partner for advances, as distinguished from capital; (iii) in paying to each partner ratably what is due from the firm to the partner in respect of capital; (iv) the ultimate residue, if any, will be divided among the partners in the proportion in which profits are divisible. Part 3—Limited partnerships and incorporated limited partnerships Division 1—Application of Act to limited partnerships and incorporated limited partnerships 47—Application of Act to limited partnerships and incorporated limited partnerships (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. Division 2—Nature and formation of limited partnerships and incorporated limited partnerships 48—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 it under this Part as an incorporated limited partnership. 49—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 (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. 50—Size of a limited partnership or incorporated limited partnership (1) A limited partnership or incorporated limited partnership may have any number of limited partners. (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. 51—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. 51A—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 South Australia 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 of 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. (2) The powers of an incorporated limited partnership may be limited by the partnership agreement. 51B—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 partner agree to observe and perform the agreement so far as it applies to them. 51C—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 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 another limited partner or the partnership and the acts of a limited partner do not bind a general partner, another limited partner or the partnership itself. (2) 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— (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 which under this Act is required or permitted to be given by a partner or 2 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 case. (5) Any consent or authority which 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 2 or more general partners acting in accordance with the partnership agreement. (6) A limited partner, as 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. (7) This section is subject to section 65A (Limited partner not to take part in the management of the incorporated limited partnership). Division 3—Registration of limited partnerships and incorporated limited partnerships 51D—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. (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 (iii) an ESVCLP 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. 52—Application for registration (1) An application for registration of a limited partnership or incorporated limited partnership must— (a) be made to the Commission in the manner and form approved by the Commission; and (b) be signed— (i) 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; or (ii) in any other case—by each proposed partner; and (c) where the firm-name proposed in the application would require registration as a business name under the Business Names Registration Act 2011 of the Commonwealth—be lodged not earlier than two months before the date shown in the application as the proposed date on which business will commence to be carried on under the firm-name; and (d) be accompanied by the fee fixed by regulation. (1a) The application must— (a) contain a statement of whether the partnership is to be registered as a limited partnership or an incorporated limited partnership; and (b) if the application is 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 South Australia of the partnership (to be called the registered office of the proposed partnership); and (c) if the application is 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 South Australia of the proposed partnership (to be called the registered office of the proposed 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) 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) its registered office or principal place of business or (in the case of a partnership) its registered office or principal office; 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 (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) if the application is 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