Western Australia: Limited Partnerships Act 2016 (WA)

Western Australia Limited Partnerships Act 2016 Western Australia Limited Partnerships Act 2016 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Term used: associate 6 5. Term used: partnership 7 Part 2 — Application of laws of partnership 6. Application of Partnership Act to limited partnership 9 7. Application of general law to incorporated limited partnership 10 8. Application of Partnership Act to incorporated limited partnership 10 9. Application of Partnership Act to incorporated limited partnership: modifications 11 Part 3 — Limited partnerships Division 1 — Nature, formation and membership 10. Formation of limited partnership 16 11. Composition of limited partnership 16 12. Change in membership of limited partnership 17 13. Differences between partners 17 Division 2 — Management 14. Limited partner must not take part in management of limited partnership 17 15. When does limited partner take part in management? 18 Division 3 — Registration 16. Application for registration 19 17. Registration 21 Division 4 — Liability of partner 18. Limitation of liability of limited partner 22 19. Change in liability of limited partner 22 20. Effect on liability of change in status of partner 23 21. Liability for business conducted outside State 23 22. Liability under corresponding law 23 23. Effect of sections 21 and 22 23 24. Limitation of liability provisions cannot be varied 24 Division 5 — Dissolution, cessation and winding up 25. Dissolution generally 24 26. Dissolution on grounds of mental disability 24 27. Cessation 25 28. Notice of dissolution or cessation 25 29. No notice of dissolution or cessation 26 30. Winding up 27 Division 6 — Cancellation of registration 31. Cancellation of registration on dissolution or cessation 27 32. Cancellation of registration on incorporation 27 33. Notice of cancellation 28 34. Effect of cancellation 28 Part 4 — Incorporated limited partnerships Division 1 — Nature, formation and membership 35. Nature of incorporated limited partnerships 29 36. Formation of incorporated limited partnerships 30 37. Composition of incorporated limited partnerships 30 38. Change in membership 31 39. Differences between partners 31 40. Agents 32 41. Partnership agreement 33 Division 2 — Management 42. Limited partner must not take part in management of incorporated limited partnership 33 43. When does limited partner take part in management? 34 44. Proposals to which section 43(1)(k)(i) applies 37 Division 3 — Registration 45. Application for registration 38 46. Registration 40 Division 4 — Lodgment of documents relating to registration 47. Evidence of status: on registration 42 48. Evidence of status: after registration 42 Division 5 — Liability of partner 49. Limitation of liability of limited partner 43 50. Effect on liability of change in status of partner 44 51. Liability for business conducted outside State 44 52. Liability under corresponding law 45 53. Effect of sections 51 and 52 45 Division 6 — Winding up Subdivision 1 — Voluntary winding up 54. Voluntary winding up 46 Subdivision 2 — Winding up required by Commissioner 55. Grounds for winding up required by Commissioner 46 56. Commissioner may require incorporated limited partnership to show cause 47 57. How incorporated limited partnership may show cause 48 58. Commissioner may give winding up notice where cause not shown 48 59. Commissioner must record in register where cause shown 48 60. Power to cancel winding up notice given in error 49 61. Notices must be recorded in register 49 62. Commencement and completion of winding up 49 63. Costs of winding up 50 64. Appointment of liquidator 50 65. Distribution of assets on winding up 51 Subdivision 3 — Winding up under Corporations Act 66. Application of Corporations Act to winding up 51 Subdivision 4 — Winding up generally 67. Notice of winding up 53 68. No notice of winding up 54 Division 7 — Cancellation of registration 69. Cancellation of registration on winding up 55 70. Notice of cancellation 55 71. Effect of cancellation 55 Division 8 — Miscellaneous 72. Entitlement to make assumptions 55 73. Assumptions that can be made 56 74. Common seal 57 75. Execution 58 76. Enforcing judgments 58 77. Proper party to proceeding 58 Part 5 — General Division 1 — Register and registration 78. Register 59 79. Power to make or correct certain entries in register 59 80. Reinstatement of registration 60 81. Entry in register constitutes notice 61 Division 2 — Certificates of registration 82. Certificate of registration to be issued 61 83. Certificate of registration to be displayed 62 Division 3 — Change in registered particulars 84. Notice of change in registered particulars 63 85. Change in agreed contribution of limited partner 64 86. Register to record change in registered particulars 64 Division 4 — Restrictions on members 87. Terms used 64 88. Restrictions on insolvents 65 89. Restrictions on convicted persons 65 90. Restrictions on disqualified persons 66 91. Contravention does not affect liability 67 92. Leave of Commissioner 67 93. Revoking leave of Commissioner 68 Division 5 — Reviews 94. Terms used 68 95. Reviewable decisions 68 96. Review of reviewable decisions 70 Division 6 — Offences 97. Giving false or misleading information 70 98. Offences by partnership 70 99. Time for bringing proceedings for offences 71 Division 7 — Miscellaneous 100. How notices may be given 71 101. How consent may be given 71 102. Registered office 72 103. Service 72 104. Lodgment of documents 73 105. Signing of documents 74 106. Business documents 74 107. Inspection of accounts and financial records 76 Division 8 — Application of other written laws 108. Application of Fair Trading Act 76 109. Application of Criminal Procedure Act 2004 77 Division 9 — Regulations and orders 110. Regulations 78 111. Regulations prescribing model limited partnership agreement 79 112. Regulations relating to Corporations Act 79 113. Orders declaring corresponding law 79 Part 6 — Repeals and transitional matters 114. Terms used 81 115. Written laws repealed 81 116. Existing limited partnerships 81 117. Existing register 83 118. Existing statements 83 119. Time limit under section 99 84 120. Leave taken to have been granted under section 92(4) 84 121. Transitional regulations 85 Part 7 — Partnership Act 1895 amended 122. Partnership Act 1895 amended 87 Notes Compilation table 89 Defined terms Western Australia Limited Partnerships Act 2016 An Act to — * provide for the formation and registration of limited partnerships and incorporated limited partnerships; and * repeal the Limited Partnerships Act 1909; and * make consequential amendments to the Partnership Act 1895, and for related purposes. [Assented to 29 November 2016] The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This is the Limited Partnerships Act 2016. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used In this Act, unless the contrary intention appears — AFOF has the meaning given in the Income Tax Assessment Act section 995‑1; agreed contribution, in relation to a limited partner or a proposed limited partner, means the amount of any capital, or the value of any property, that the partner has agreed to contribute to the partnership; assets, in relation to the winding up of an incorporated limited partnership, means the assets remaining after satisfaction of the liabilities of the partnership and the costs, charges and expenses of the winding up; associate has a meaning affected by section 4; authorised person means — (a) the Commissioner; and (b) an investigator designated under the Fair Trading Act section 64 as applied by section 108(1) of this Act; business has the meaning given in the Partnership Act section 3; Business Names Registration Act means the Business Names Registration Act 2011 (Commonwealth); Commissioner has the meaning given in the Fair Trading Act section 6; Corporations Act means the Corporations Act 2001 (Commonwealth); corresponding law means — (a) in relation to a limited partnership — a law of another State, a Territory or another country or jurisdiction that is declared under section 113(1) to be a corresponding law in relation to limited partnerships for the purposes of this Act; or (b) in relation to an incorporated limited partnership — a law of another State, a Territory or another country or jurisdiction that — (i) is declared under section 113(1) to be a corresponding law in relation to incorporated limited partnerships for the purposes of this Act; or (ii) substantially corresponds to the provisions of this Act that relate to incorporated limited partnerships; court has the meaning given in the Partnership Act section 3; ESVCLP has the meaning given in the Income Tax Assessment Act section 995‑1; external partnership means a partnership (or legal entity, however described, in the nature of a partnership) formed under a law of another State, a Territory or another country or jurisdiction, whether or not under that law — (a) the liability of any partner for the liabilities of the partnership is limited; or (b) the partnership is incorporated or is otherwise a separate legal entity; Fair Trading Act means the Fair Trading Act 2010; firm name — (a) of a limited partnership or incorporated limited partnership — means the name of the partnership recorded in the register; or (b) of an external partnership — means the name under which, under the law of the place in which it is formed, the partnership carries on the business of the partnership; or (c) of any other partnership — means a firm‑name as defined in the Partnership Act section 10; general partner — (a) in relation to a limited partnership — means a partner who, at the relevant time, is recorded in the register as being a general partner in the partnership; and (b) in relation to an incorporated limited partnership — (i) means a partner who, at the relevant time, is recorded in the register as being a general partner in the partnership; and (ii) includes, if the general partner is a partnership, a reference to a partner in that partnership; Income Tax Assessment Act means the Income Tax Assessment Act 1997 (Commonwealth); incorporated limited partnership means an incorporated limited partnership that is registered under this Act; liability means a debt, obligation or other liability of any kind, wherever and however incurred; limited partner, in relation to a limited partnership or incorporated limited partnership, means a partner who, at the relevant time, is recorded in the register as being a limited partner in the partnership; limited partnership means a limited partnership that is registered under this Act; partner, in a limited partnership or incorporated limited partnership, means a general partner or a limited partner; partnership has a meaning affected by section 5; Partnership Act means the Partnership Act 1895; person means an individual, body corporate or partnership (including an external partnership); prescribed means prescribed by the regulations made under this Act; register means the register of limited partnerships and incorporated limited partnerships kept under section 78(1); registered office, in relation to a limited partnership or incorporated limited partnership, means the place recorded in the register as the address of the principal office in this State of the partnership; registered particulars, in relation to a limited partnership or incorporated limited partnership, means the particulars recorded in the register relating to the limited partnership or incorporated limited partnership and the partners in that partnership; related body corporate has the meaning given in the Corporations Act section 9; securities has the meaning given in the Corporations Act section 9; security holder, in relation to a body (whether incorporated or unincorporated), includes a holder of securities in or of the body; show cause notice means a notice given to an incorporated limited partnership under section 56; VCLP has the meaning given in the Income Tax Assessment Act section 995‑1; VCMP has the meaning given in the Income Tax Assessment Act section 995‑1; winding up notice means a notice given to an incorporated limited partnership under section 58. 4. Term used: associate For the purposes of this Act — associate — (a) in relation to a general partner, includes — (i) if the general partner is a partnership or incorporated limited partnership — a partner in that partnership (partner in the general partner); and (ii) any person who has an interest in the general partner or in any partner in the general partner, whether as security holder, trustee, responsible entity, manager, custodian, sub‑custodian, nominee, administrator, executor, legal personal representative, beneficiary or otherwise; and (iii) any person to whom the general partner or any partner in the general partner has delegated any power, authority, right, duty or obligation of the general partner in relation to any partnership or incorporated limited partnership in which the partner is a general partner; and (iv) if the general partner or a partner in the general partner or a person covered by subparagraph (ii) or (iii) is a body corporate — a related body corporate of that body corporate; and (v) a director, officer, employee, agent, representative or security holder of the general partner or of any partner in the general partner or of a person covered by subparagraph (ii), (iii) or (iv); and (b) in relation to a limited partner, includes — (i) if the limited partner is a partnership or incorporated limited partnership — a partner in that partnership (partner in the limited partner); and (ii) any person who has an interest in the limited partner or in any partner in the limited partner, whether as security holder, trustee, responsible entity, manager, custodian, sub‑custodian, nominee, administrator, executor, legal personal representative, beneficiary or otherwise; and (iii) if the limited partner or a partner in the limited partner or a person covered by subparagraph (ii) is a body corporate — a related body corporate of that body corporate; and (iv) a director, officer, employee, agent, representative or security holder of the limited partner or of any partner in the limited partner or of a person covered by subparagraph (ii) or (iii); and (c) in relation to an incorporated limited partnership, includes — (i) any body corporate in which the incorporated limited partnership has an interest, whether as security holder or otherwise, and any related body corporate of that body corporate; and (ii) any partnership in which the incorporated limited partnership has an interest, whether as security holder or otherwise. 5. Term used: partnership (1) For the purposes of this Act — partnership means a partnership as defined in the Partnership Act. (2) Any act done in connection with the making of an application for registration under Part 3 or 4 by or on behalf of persons proposing to be the partners in a proposed limited partnership or incorporated limited partnership does not of itself create a partnership between those persons. Part 2 — Application of laws of partnership 6. Application of Partnership Act to limited partnership (1) Subject to subsection (4) and any express provision of this Act, the Partnership Act (other than sections 10 to 12) applies to a limited partnership with the modifications set out in this section. (2) For the purposes of subsection (1), these provisions of the Partnership Act apply as follows — (a) section 22(1) does not apply to an admission or representation made by a limited partner; (b) section 23 does not apply to notice given to a limited partner; (c) section 26 does not apply to an act of a limited partner; (d) section 27 does not apply to a limited partner. (3) For the purposes of subsection (1), the Partnership Act is to be read as if — (a) a reference in that Act to a partnership or a firm were a reference to a limited partnership as defined in section 3; and (b) subject to paragraph (e), a reference in that Act to a partner were a reference to a partner as defined in section 3; and (c) a reference in that Act to a firm‑name were a reference to a firm name as defined in section 3; and (d) a reference in section 16 or 24(2) of that Act to debts and obligations were a reference to liability as defined in section 3; and (e) a reference in section 21(1) or 24(1) of that Act to a partner were a reference to a general partner as defined in section 3. (4) If a provision of this Act relating to a limited partnership is inconsistent with a provision of the Partnership Act — (a) the provision of this Act prevails; and (b) the other provision does not, to the extent of the inconsistency, have effect in relation to a limited partnership. 7. Application of general law to incorporated limited partnership (1) In this section — general law means the principles and rules of common law and equity to the extent that they have effect in the State from time to time. (2) Each of the following is not a partnership for the purposes of the general law — (a) an incorporated limited partnership; (b) the relationship between the partners in an incorporated limited partnership; (c) the relationship between an incorporated limited partnership and its partners. 8. Application of Partnership Act to incorporated limited partnership (1) Subject to subsection (3) and any express provision of this Act, the Partnership Act (other than sections 10 to 12, 25, 28, 30(2) and (3), 32 to 34, 37, 38 and 40 to 57) applies to an incorporated limited partnership with the modifications set out in section 9. (2) For the purposes of subsection (1), these provisions of the Partnership Act apply as follows — (a) section 13(1) does not apply to an act done or instrument executed by a limited partner; (b) sections 16, 19 and 27 do not apply to a limited partner; (c) section 18(1) does not apply where money or property is misapplied by a limited partner; (d) section 22(1) does not apply to an admission or representation made by a limited partner; (e) section 23 does not apply to notice given to a limited partner; (f) section 26 does not apply to an act of a limited partner. (3) If a provision of this Act relating to an incorporated limited partnership is inconsistent with a provision of the Partnership Act — (a) the provision of this Act prevails; and (b) the other provision does not, to the extent of the inconsistency, have effect in relation to an incorporated limited partnership. 9. Application of Partnership Act to incorporated limited partnership: modifications For the purposes of section 8(1), the Partnership Act is to be read as if — (a) a reference in that Act to a partnership or a firm were a reference to an incorporated limited partnership as defined in section 3 as a separate legal entity and not to the partners in that partnership; and (b) subject to paragraphs (d), (e), (i)(i), (k), (n) and (o)(i), a reference in that Act to a partner were a reference to a partner as defined in section 3; and (c) a reference in that Act to a firm‑name were a reference to a firm name as defined in section 3; and (d) a reference in section 13(1) of that Act to all the partners were a reference to all the general partners as defined in section 3; and (e) in section 14 of that Act the words "one partner" were deleted and replaced with "one general partner"; and (f) in section 16 of that Act the word "Every" were deleted and replaced with — (1) Every and (g) in section 16 of that Act — (i) a reference to the other partners in a partnership were a reference to the incorporated limited partnership as defined in section 3; and (ii) a reference to debts and obligations were a reference to liabilities as defined in section 3; and (h) at the end of section 16 of that Act the following subsection were inserted — (2) Despite subsection (1), a general partner in an incorporated limited partnership is only liable for any liabilities of the incorporated limited partnership — (a) to the extent the incorporated limited partnership is unable to satisfy the liabilities; or (b) to a greater extent provided by the partnership agreement. and (i) in section 17 of that Act — (i) a reference to partner (other than the 2nd occurrence) were a reference to general partner as defined in section 3; and (ii) the words "the authority of his copartners" and "the authority of the partner's copartners" were deleted and replaced with "its authority"; and (iii) in subsection (2)(a) the words "partner's copartners, or some of them," were deleted and replaced with "incorporated limited partnership"; and (iv) in subsection (2)(c) the words "any copartner" were deleted and replaced with "any other general partner in the incorporated limited partnership"; and (j) in section 19 of that Act the word "Every" were deleted and replaced with — (1) Every and (k) in section 19 of that Act a reference to partner were a reference to general partner as defined in section 3; and (l) at the end of section 19 of that Act the following subsection were inserted — (2) Despite subsection (1), a general partner in an incorporated limited partnership is only liable for any liabilities of the incorporated limited partnership — (a) to the extent the incorporated limited partnership is unable to satisfy the liabilities; or (b) to a greater extent provided by the partnership agreement. and (m) section 20 of that Act were deleted and replaced with the following — 20. Improper employment of trust property (1) 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. (2) Subsection (1) — (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. and (n) in section 21(1) of that Act a reference to partner were a reference to general partner as defined in section 3; and (o) in section 24 of that Act — (i) a reference in subsection (1) to a partner were a reference to a general partner as defined in section 3; and (ii) a reference in subsection (2) to debts or obligations were a reference to the liabilities as defined in section 3; and (iii) the words "as newly constituted" were deleted from subsection (3); and (p) in section 30(1) of that Act a reference to the partners were a reference to the incorporated limited partnership as defined in section 3; and (q) at the end of section 30 of that Act the following subsection were inserted — (4) 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. and (r) in section 39 of that Act the words "Partners are" were deleted and replaced with "An incorporated limited partnership is". Part 3 — Limited partnerships Division 1 — Nature, formation and membership 10. Formation of limited partnership A limited partnership is formed by and on registration under this Act as a limited partnership. 11. Composition of limited partnership (1) A limited partnership must have — (a) at least one general partner; and (b) at least one limited partner. (2) A limited partnership may have any number of limited partners. (3) A limited partnership must not have — (a) more than 20 general partners; or (b) if the partnership is of a particular kind in relation to which a higher number applies under the Corporations Act section 115(2) — more general partners than that higher number. (4) A person may be a general partner or a limited partner in a limited partnership. (5) For the purposes of subsection (3), if a general partner is a partnership (including an external partnership), the general partner is to be counted as follows — (a) if, under the law of the place where the partnership is formed, no partner in the partnership has limited liability for the liabilities of the partnership — each partner in the partnership is to be counted in place of the general partner; (b) if, under the law of the place where the partnership is formed, any partner in the partnership has limited liability for the liabilities of the partnership — each partner in the partnership whose liability is not so limited is to be counted in place of the general partner. 12. Change in membership of limited partnership (1) A person may be admitted as a partner in a limited partnership without the consent of any limited partner. (2) A limited partner in a limited partnership must not assign the limited partner's share in the partnership without the consent of the general partners in the limited partnership. (3) If the limited partner's share in a limited partnership is assigned, the assignee is taken to be a limited partner in substitution for the assignor with all the rights and obligations of the assignor. (4) The application of this section may be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. 13. Differences between partners (1) A difference arising as to ordinary matters connected with the business of a limited partnership may be decided by a majority of the general partners. (2) The application of this section may be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. Division 2 — Management 14. Limited partner must not take part in management of limited partnership (1) A limited partner in a limited partnership must not take part in the management of the business of the partnership. (2) A limited partner in a limited partnership cannot bind the partnership. (3) If a limited partner takes part in the management of the business of the partnership, the limited partner is liable, as if the partner were a general partner, for the liabilities of the partnership incurred while the limited partner takes part in the management of that business. (4) The application of this section cannot be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. 15. When does limited partner take part in management? (1) For the purposes of section 14, a limited partner in a limited partnership does not take part in the management of the business of the partnership merely because the limited partner or a person acting on behalf of the limited partner — (a) is an employee or an independent contractor of the partnership or of a general partner in the partnership, or is an officer of a general partner in the partnership that is a body corporate; or (b) gives advice to, or on behalf of, the partnership or a general partner in the partnership in the proper exercise of functions arising from the engagement of the limited partner in a professional capacity or arising from business dealings between the limited partner and the partnership or a general partner in the partnership; or (c) gives a guarantee or indemnity in respect of any liability of the partnership or of a general partner in the partnership; or (d) participates in any action by other limited partners in the partnership for the purpose of enforcing their rights or safeguarding their interests as limited partners; or (e) if authorised by a partnership agreement, participates in general meetings of all the partners in the partnership; or (f) exercises a power conferred on the limited partner by section 107. (2) Subsection (1) is not to be taken to have the effect that a limited partner in a limited partnership takes part in the management of the business of the partnership merely because the limited partner or a person acting on behalf of the limited partner does anything in connection with the conduct of that business that is not referred to in that subsection. (3) The application of this section cannot be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. Division 3 — Registration 16. Application for registration (1) An application for registration as a limited partnership may be made by — (a) a partnership (including an external partnership); or (b) a proposed partner in a proposed limited partnership. (2) An application for registration as a limited partnership is made by lodging with the Commissioner a statement that — (a) is in the form approved by the Commissioner; and (b) contains each of the matters set out in subsection (3); and (c) is signed — (i) if the application is made by a partnership — by each partner in the partnership or by a person given authority to make the application on behalf of the partnership and the partners in it; or (ii) in any other case — by each proposed partner in the proposed partnership. (3) The statement must contain, in relation to the proposed limited partnership, each of the following matters — (a) the proposed firm name; (b) the address of the proposed registered office; (c) the name of each proposed partner, being — (i) if the partner is an individual — their full name; or (ii) if the partner is a body corporate — its corporate name; or (iii) if the partner is a partnership — its firm name or, if the partnership does not have a firm name, the full name of each partner in the partnership; (d) the address of each proposed partner, being — (i) if the partner is an individual — their principal place of residence; or (ii) if the partner is a body corporate — its registered office as defined in the Corporations Act section 9; or (iii) if the partner is a partnership — its principal office; (e) a statement in relation to each proposed partner as to — (i) whether they will be a general partner or a limited partner; and (ii) whether they are an individual, a body corporate or a partnership; (f) in relation to each proposed limited partner — (i) a statement of their agreed contribution; and (ii) a statement to the effect that their liability to contribute is limited to their agreed contribution; and (iii) a statement of the amount of their agreed contribution that has been paid and the amount of their agreed contribution that is unpaid; (g) any other particulars that are required by the form or prescribed. 17. Registration (1) If an application for registration as a limited partnership is made in accordance with this Division, the Commissioner must register the limited partnership. (2) Despite subsection (1), the Commissioner must not register a limited partnership if — (a) the partnership does not satisfy the requirements as to the composition of a limited partnership under section 11(1) and (3); or (b) the Commissioner is satisfied that the proposed firm name (the proposed name) of the proposed limited partnership is identical with or likely to be confused with — (i) a business name registered under the Business Names Registration Act; or (ii) a name of a body corporate; or (iii) a firm name of a partnership; or (c) the Commissioner is satisfied that the proposed name would not be eligible for registration as a business name under the Business Names Registration Act; or (d) the Commissioner is satisfied that the proposed name is undesirable. (3) If, in accordance with subsection (2), the Commissioner does not register a limited partnership, the Commissioner must give the applicant notice of the refusal to register the limited partnership and the reasons for the refusal. (4) Registration is carried out by recording in the register the particulars contained in the statement lodged with the Commissioner. Division 4 — Liability of partner 18. Limitation of liability of limited partner (1) The liability of a limited partner to contribute to the liabilities of the limited partnership is, subject to this Part, not to exceed the amount shown in the register as the partner's agreed contribution. (2) If a limited partner in a limited partnership makes a contribution towards their agreed contribution, the liability of the limited partner is reduced to the amount of the partner's agreed contribution shown in the register as unpaid. (3) If the whole or any part of a contribution made by a limited partner in a limited partnership towards their agreed contribution is received back by the partner, the liability of the limited partner is increased to the amount of the partner's agreed contribution shown in the register as unpaid. (4) If a partnership (the investing partnership) is a limited partner in a limited partnership (the principal partnership), a partner in the investing partnership has no separate liability to contribute to the liabilities of the principal partnership. (5) Nothing in subsection (4) affects any liability of the investing partnership as a limited partner to contribute to the liabilities of the principal partnership. 19. Change in liability of limited partner (1) A reduction in the liability of a limited partner caused by a reduction in the partner's agreed contribution shown in the register does not extend to any liability of the limited partnership that arose before the reduction was recorded in the register. (2) An increase in the liability of a limited partner caused by an increase in the partner's agreed contribution shown in the register extends to any liability of the limited partnership that arose before the increase was recorded in the register. 20. Effect on liability of change in status of partner (1) If a general partner becomes a limited partner, the partner remains liable, as if the partner were a general partner, for any liability of the limited partnership that arose before the partner became a limited partner. (2) If a limited partner becomes a general partner, the partner remains liable, as if the partner were a limited partner, for any liability of the limited partnership that arose before the partner became a general partner. 21. Liability for business conducted outside State The limitation on the liability of a limited partner in a limited partnership extends to any liability incurred in connection with the conduct of the partnership's business outside this State. 22. Liability under corresponding law (1) In this section — recognised limited partnership means a limited partnership formed under a corresponding law. (2) Any limitation under a corresponding law on the liability of a limited partner in a recognised limited partnership extends to any liability incurred in connection with the conduct of the partnership's business in this State. 23. Effect of sections 21 and 22 Sections 21 and 22 are not to be taken to have the effect that a limited partner in a limited partnership has any liability (or but for that section would have any liability) in connection with the conduct of the partnership's business outside this State that the limited partner would not have in connection with the conduct of the partnership's business within this State. 24. Limitation of liability provisions cannot be varied The application of the provisions of this Act relating to the limitation of liability of a limited partner cannot be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. Division 5 — Dissolution, cessation and winding up 25. Dissolution generally (1) A limited partner is not entitled to dissolve a limited partnership by notice. (2) The other partners are not entitled to dissolve the limited partnership on the basis that — (a) a limited partner has allowed their share of the partnership property to be charged for that partner's separate liabilities; or (b) a limited partner has assigned their share in the partnership. (3) The death, bankruptcy or retirement or, in the case of a body corporate or partnership, the dissolution of a limited partner does not dissolve the partnership. (4) The application of this section may be varied in relation to a limited partnership by a partnership agreement or with the consent of the partners in the limited partnership. 26. Dissolution on grounds of mental disability (1) In this section — mental disability has the meaning given in the Guardianship and Administration Act 1990 section 3(1). (2) The fact that a limited partner in a limited partnership is incapable of managing their affairs because of mental disability is not a ground for dissolution of the partnership by the court unless the share and interest of the partner in the partnership cannot be ascertained or realised other than by dissolving the partnership. 27. Cessation (1) A partnership ceases to be a limited partnership if — (a) the partnership ceases to satisfy the requirements as to the composition of a limited partnership under section 11(1) and (3); or (b) the partners cease to carry on a business in common with a view of profit; or (c) an event occurs that makes it unlawful for the business of the partnership to be carried on or for the partners to carry it on in partnership. (2) If a limited partnership ceases to be a limited partnership and the members of the partnership or some of them continue in association or partnership, that association or partnership is taken to have not been formed under this Act from the time it ceased to be a limited partnership. 28. Notice of dissolution or cessation (1) If a limited partnership is dissolved under section 25 or ceases to be a limited partnership under section 27, the persons who were registered as general partners immediately before the dissolution or cessation must lodge with the Commissioner a notice of the dissolution or cessation in accordance with subsection (2). (2) The notice must — (a) be lodged as soon as practicable after the dissolution or cessation; and (b) be in the form approved by the Commissioner; and (c) contain the particulars required by the form; and (d) specify the day on which the dissolution or cessation took effect. (3) As soon as practicable after receiving a notice under subsection (1), the Commissioner must record in the register — (a) the dissolution or cessation; and (b) the day on which the dissolution or cessation took effect, being the day specified in the notice under subsection (2)(d). (4) If subsection (1) is not complied with, each person registered as a general partner in the limited partnership immediately before the dissolution or cessation commits an offence. Penalty for this subsection: a fine of $1 500. 29. No notice of dissolution or cessation (1) Subsection (2) applies if — (a) section 28(1) is not complied with; and (b) the Commissioner is satisfied that a limited partnership has dissolved or ceased to be a limited partnership. (2) The Commissioner may give the limited partnership a notice informing the limited partnership that, if it does not satisfy the Commissioner, within 28 days after the day on which the notice is given, that the limited partnership has not dissolved or ceased to be a limited partnership, the dissolution or cessation of the limited partnership will be recorded in the register. (3) The Commissioner must, as soon as practicable after giving a notice to a limited partnership under subsection (2), record the giving of the notice in the register. (4) If, after the expiry of 28 days after the day on which a notice is given to a limited partnership under subsection (2), the Commissioner is still satisfied that the limited partnership has dissolved or ceased to be a limited partnership, the Commissioner may record in the register — (a) the dissolution or cessation; and (b) the day on which the dissolution or cessation took effect, being the day on which the record is made. (5) If, at any time within 28 days after the day on which a notice is given to a limited partnership under subsection (2), the Commissioner becomes satisfied that the limited partnership has not dissolved or ceased to be a limited partnership, the Commissioner must — (a) record that fact in the register; and (b) give the limited partnership notice of that fact. 30. Winding up If the affairs of a limited partnership are to be wound up by the partners with a view to its dissolution, the winding up must be carried out by the general partners unless the court orders otherwise. Division 6 — Cancellation of registration 31. Cancellation of registration on dissolution or cessation If the Commissioner records the dissolution or cessation of a limited partnership in the register under section 28(3) or 29(4), the Commissioner must, at the same time, cancel the registration of the limited partnership by recording in the register — (a) the cancellation; and (b) the day on which the cancellation took effect, being the day on which the dissolution or cessation took effect. 32. Cancellation of registration on incorporation (1) If the Commissioner registers a limited partnership as an incorporated limited partnership, the Commissioner must, at the same time, cancel the registration of the limited partnership by recording in the register — (a) the cancellation; and (b) the day on which the cancellation took effect, being the day on which the registration as an incorporated limited partnership took effect. (2) Any liability of a partnership to which subsection (1) applies, or of a partner in the partnership, that arose before its registration as an incorporated limited partnership is to be dealt with as if the partnership were still a limited partnership. 33. Notice of cancellation If the registration of a limited partnership is cancelled under this Division, the Commissioner must give the partners notice of the cancellation and the reasons for the cancellation. 34. Effect of cancellation A limited partnership ceases to exist on cancellation of its registration as a limited partnership under this Division. Part 4 — Incorporated limited partnerships Division 1 — Nature, formation and membership 35. Nature of incorporated limited partnerships (1) An incorporated limited partnership is a body corporate with — (a) legal personality separate from that of the partners in it; and (b) perpetual succession. (2) An incorporated limited partnership may have a common seal. (3) An incorporated limited partnership may sue and be sued in its firm name. (4) An incorporated limited partnership has the legal capacity and powers of an individual. (5) An incorporated limited partnership has the powers of a body corporate, including the power to do any of the following, whether within or outside this State or outside Australia — (a) carry on the business of the partnership; (b) enter into contracts or otherwise acquire rights or liabilities; (c) create, confer, vary or cancel interests in the partnership; (d) acquire, hold and dispose of real or personal property or an interest (whether beneficial or legal) in real or personal property; (e) appoint agents and attorneys, and act as agent for other persons; (f) form, and participate in the formation of, companies or incorporated limited partnerships; (g) participate in partnerships, trusts, joint ventures or other associations and other arrangements for the sharing of profits; (h) do any other things that it is authorised to do by or under this Act. (6) The powers of an incorporated limited partnership may be limited by the partnership agreement. (7) A reference in this Act, in relation to an incorporated limited partnership, to the partnership is a reference to the incorporated limited partnership as a separate legal entity and not to the partners in that partnership. 36. Formation of incorporated limited partnerships An incorporated limited partnership is formed by and on registration under this Act as an incorporated limited partnership. 37. Composition of incorporated limited partnerships (1) An incorporated limited partnership must have — (a) at least one general partner; and (b) at least one limited partner. (2) An incorporated limited partnership may have any number of limited partners. (3) An incorporated limited partnership must not have more than 20 general partners. (4) A person may be a general partner or a limited partner in an incorporated limited partnership. (5) For the purposes of subsection (3), if a general partner is a partnership (including an external partnership), the general partner is to be counted as follows — (a) if, under the law of the place where the partnership is formed, no partner in the partnership has limited liability for the liabilities of the partnership — each partner in the partnership is to be counted in place of the general partner; (b) if, under the law of the place where the partnership is formed, any partner in the partnership has limited liability for the liabilities of the partnership — each partner in the partnership whose liability is not so limited is to be counted in place of the general partner. 38. Change in membership (1) A person may be admitted as a partner in an incorporated limited partnership without the consent of any limited partner. (2) A limited partner in an incorporated limited partnership must not transfer the whole or a part of the limited partner's interest in the incorporated limited partnership without — (a) the consent of the general partners in the incorporated limited partnership; and (b) the consent of the transferee. (3) If the whole of the limited partner's interest in the incorporated limited partnership is transferred to a transferee, the transferee becomes a limited partner in substitution for the transferor with all the rights and obligations of the transferor. (4) If only a part of the limited partner's interest in the incorporated limited partnership is transferred to a transferee, the transferee becomes a limited partner in substitution for the transferor in relation to the transferred part and with all the rights and obligations of the transferor in relation to it. (5) The application of this section may be varied in relation to an incorporated limited partnership by the partnership agreement or with the consent of the partners in the incorporated limited partnership. 39. Differences between partners (1) A difference arising as to ordinary matters connected with the business of an incorporated limited partnership may be decided by a majority of the general partners. (2) The application of this section may be varied in relation to an incorporated limited partnership by the partnership agreement or with the consent of the partners in the incorporated limited partnership. 40. Agents (1) Each of the following is not an agent of, and cannot bind, a limited partner in an incorporated limited partnership — (a) the partnership; (b) a general partner in the partnership; (c) an officer, employee, agent or representative of a general partner in the partnership; (d) an officer, employee, agent or representative of the partnership. (2) A limited partner in an incorporated limited partnership is not an agent of, or a fiduciary for, and cannot bind — (a) the partnership; or (b) a general partner in the partnership; or (c) another limited partner in the partnership. (3) The application of subsections (1) and (2) may be varied in relation to an incorporated limited partnership by the partnership agreement or with the consent of the partners in the incorporated limited partnership. (4) Subsections (1) and (2) do not prevent the making of, or limit or restrict, an agreement between a partner (the first person) in an incorporated limited partnership and either another partner in the partnership or the 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. 41. 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 has effect as a contract between the incorporated limited partnership and each partner in the partnership under which the partnership and each of the partners agree to observe and perform the agreement so far as it applies to them. (4) Nothing in subsection (3) prevents an incorporated limited partnership itself executing a partnership agreement. Division 2 — Management 42. Limited partner must not take part in management of incorporated limited partnership (1) A limited partner in an incorporated limited partnership must not take part in the management of the business of the partnership. (2) Subsection (3) applies if — (a) as a direct result of any wrongful act or omission of a limited partner in taking part in the management of the business of an incorporated limited partnership, the limited partner causes any loss or injury to any person (a third party) other than a partner in the partnership; and (b) at the time of the act or omission, the third party had reasonable grounds to believe that the limited partner was a general partner in the partnership. (3) The limited partner is liable for the loss or injury to the same extent that the limited partner would have been liable if the limited partner were a general partner in the partnership. (4) The application of this section cannot be varied in relation to an incorporated limited partnership by the partnership agreement or with the consent of the partners in the incorporated limited partnership. 43. When does limited partner take part in management? (1) For the purposes of section 42, a limited partner in an incorporated limited partnership does not take part in the management of the business of the partnership merely because the limited partner or a person acting on behalf of the limited partner — (a) is an employee of or an independent contractor engaged by — (i) the partnership; or (ii) a general partner in the partnership; or (iii) an associate of a general partner in the partnership; or (b) is an officer of a body corporate that is — (i) a general partner in the partnership; or (ii) an associate of a general partner in the partnership; or (c) gives advice to, or on behalf of, the partnership, a general partner in the partnership or an associate of a general partner in the partnership in the proper exercise of functions arising from — (i) the engagement of the limited partner, or the person acting on behalf of the limited partner, in a professional capacity; or (ii) business dealings between the limited partner, or the person acting on behalf of the limited partner, and the partnership, a general partner in the partnership or an associate of a general partner in the partnership; or (d) gives a guarantee or indemnity in respect of any liability of the partnership, a general partner in the partnership or an associate of a general partner in the partnership; or (e) takes any action, or participates in any action taken by any other limited partner in the partnership, for the purpose of enforcing the rights, or safeguarding the interests, of the limited partner as a limited partner; or (f) if authorised by the partnership agreement — (i) calls, requisitions, convenes, chairs, participates in, postpones, adjourns or makes a record of a meeting of any of the partners in the partnership; or (ii) requisitions, signs or otherwise passes, approves, disapproves or amends any resolution (whether at a meeting, in writing or otherwise) of any of the partners in the partnership, including without limitation by formulating, moving, proposing, supporting, opposing, speaking to or voting on the resolution; or (g) exercises a power conferred on the limited partner by section 107; or (h) gives advice to, or consults with, an officer, director, security holder, partner, agent, representative, employee of, or independent contractor engaged by, an associate of the partnership; or (i) is, or acts as, an officer, director, security holder, partner, agent, representative, employee of, or independent contractor engaged by, an associate of the partnership; or (j) is, or acts as, a lender to, or fiduciary for, an associate of the partnership; or (k) to the extent authorised by the partnership agreement — (i) participates on a committee (a relevant committee) that considers, approves of, consents to or disapproves of a proposal of a kind referred to in section 44; or (ii) has, or exercises, any right to appoint one or more persons to, remove one or more persons from, or to nominate one or more persons for appointment to or removal from, a relevant committee; or (l) nominates, selects, investigates, evaluates or negotiates with any person in connection with the removal or replacement of a general partner; or (m) participates on a committee that proposes, considers, approves of, consents to or disapproves of any nomination, selection, appointment, change in control or ownership, suspension, replacement or removal of a general partner or an associate of a general partner; or (n) takes any action, or participates in any action taken by any other limited partner, for the purpose of registering or maintaining the registration of the partnership or a general partner in the partnership as an AFOF, ESVCLP or VCLP. (2) Subsection (1) is not to be taken to have the effect that a limited partner in an incorporated limited partnership takes part in the management of the business of the partnership merely because the limited partner or a person acting on behalf of the limited partner does anything in connection with the conduct of that business that is not referred to in that subsection. (3) Subsection (1) is not to be taken to have the effect that a limited partner in an incorporated limited partnership that is a VCMP takes part in the management of the business of the incorporated limited partnership merely because of any act the limited partner takes in respect of the incorporated limited partnership in the capacity of a partner or associate of a partner in the VCMP. (4) The application of this section cannot be varied in relation to an incorporated limited partnership by the partnership agreement or with the consent of the partners in the incorporated limited partnership. 44. Proposals to which section 43(1)(k)(i) applies Section 43(1)(k)(i) applies to the following kinds of proposals in relation to an incorporated limited partnership — (a) a proposal involving a material change in the nature of the business of the partnership (including a change in, or departure from, any investment guidelines, policies or conditions relating to the business of the partnership); (b) a proposal for the adoption of a method for valuing some or all of the assets of the partnership (including a change to, replacement of or variation from that method); (c) a proposal for an extension or reduction in the period in which, under the partnership agreement, investments (or certain types of investments) can be made by the partnership, or for any approval or disapproval of investments that the partnership does not otherwise have a right to make; (d) a proposal relating to any actual or potential transaction or other matter involving any actual or potential conflict of interest; (e) a proposal relating to any actual or potential transaction, contract, arrangement or understanding between one or more of the partners in the partnership, or their associates, and a general partner in the partnership, the partnership or any associate of a general partner in the partnership or of the partnership; (f) a proposal for the delegation, waiver, release or variation of an authority, right, duty or obligation of a general partner in the partnership; (g) a proposal for the appointment or approval under the partnership agreement of any person as a senior executive of a general partner in the partnership or of an associate of a general partner in the partnership. Division 3 — Registration 45. Application for registration (1) An application for registration as an incorporated limited partnership may be made, in the circumstances described in subsection (2), by — (a) a partnership (including an external partnership); or (b) a proposed partner in a proposed incorporated limited partnership. (2) For the purposes of subsection (1), the circumstances are — (a) if the application is made by a partnership under subsection (1)(a) — the partnership is an AFOF, ESVCLP, VCLP or VCMP; or (b) a general partner in the partnership or a proposed general partner in the proposed partnership intends to apply for registration of the partnership or proposed partnership as an AFOF, ESVCLP or VCLP; or (c) the partners in the partnership or the proposed partners in the proposed partnership intend that the partnership or proposed partnership will meet the requirements set out in the Income Tax Assessment Act 1936 (Commonwealth) section 94D(3) for recognition as a VCMP; or (d) any other prescribed circumstances. (3) An application for registration as an incorporated limited partnership is made by lodging with the Commissioner a statement that — (a) is in the form approved by the Commissioner; and (b) contains each of the matters set out in subsection (4); and (c) is signed — (i) if the application is made by a partnership — by each partner in the partnership or by a person given authority to make the application on behalf of the partnership and the partners in it; or (ii) in any other case — by each proposed partner in the proposed partnership. (4) For the purposes of subsection (3)(b), the statement must contain, in relation to the proposed incorporated limited partnership, each of the following matters — (a) the proposed firm name; (b) the address of the proposed registered office; (c) the name of each proposed partner, being — (i) if the partner is an individual — their full name; or (ii) if the partner is a body corporate — its corporate name; or (iii) if the partner is a partnership — the firm name or, if the partnership does not have a firm name, the full name of each partner in the partnership; (d) the address of each proposed partner, being — (i) if the partner is an individual — their principal place of residence; or (ii) if the partner is a body corporate — its registered office as defined in the Corporations Act section 9; or (iii) if the partner is a partnership — its principal office; (e) a statement in relation to each proposed partner as to — (i) whether they will be a general partner or a limited partner; and (ii) whether they are an individual, a body corporate or a partnership; (f) if the partnership is registered as an AFOF, ESVCLP or VCLP — a statement to that effect; (g) if it is intended that the partnership apply for registration as an AFOF, ESVCLP or VCLP — a statement to that effect; (h) if the partnership is a VCMP — a statement to that effect; (i) if it is intended that the partnership meet the requirements for recognition as a VCMP — a statement to that effect; (j) any other particulars that are required by the form or prescribed. 46. Registration (1) If an application for registration as an incorporated limited partnership is made in accordance with this Division the Commissioner must register the incorporated limited partnership. (2) Despite subsection (1), the Commissioner must not register an incorporated limited partnership if — (a) the partnership does not satisfy the requirements as to the composition of an incorporated limited partnership under section 37(1) and (3); or (b) the Commissioner is satisfied that the proposed firm name (the proposed name) of the proposed incorporated limited partnership is identical with or likely to be confused with — (i) a business name registered under the Business Names Registration Act; or (ii) a name of a body corporate; or (iii) a firm name of a partnership; or (c) the Commissioner is satisfied that the proposed name would not be eligible for registration as a business name under the Business Names Registration Act; or (d) the Commissioner is satisfied that the proposed name is undesirable. (3) If, in accordance with subsection (2), the Commissioner does not register an incorporated limited partnership, the Commissioner must give the applicant notice of the refusal to register the incorporated limited partnership and the reasons for the refusal. (4) Registration is carried out by recording in the register the particulars contained in the statement lodged with the Commissioner. Division 4 — Lodgment of documents relating to registration 47. Evidence of status: on registration A statement lodged under section 45(3) in the circumstances described in section 45(2)(a) must be accompanied by — (a) if the partnership is registered as an AFOF, ESVCLP or VCLP — a copy of a document evidencing its status as an AFOF, ESVCLP or VCLP; or (b) if the partnership is a VCMP — a copy of a document evidencing its status as a VCMP. 48. Evidence of status: after registration (1) An incorporated limited partnership that was incorporated on the basis of an intention to apply for registration of the partnership as an AFOF, ESVCLP or VCLP must — (a) if the incorporated limited partnership has, within the period of 2 years after its incorporation, been so registered — lodge with the Commissioner a copy of a document evidencing its status as an AFOF, ESVCLP or VCLP within 1 month after being so registered; or (b) if the incorporated limited partnership has not, within the period of 2 years after its incorporation, been so registered — lodge with the Commissioner a notice of that fact as soon as practicable after the end of the 2 year period. (2) An incorporated limited partnership that was incorporated on the basis of an intention to meet the requirements for recognition as a VCMP must — (a) if the incorporated limited partnership has, within the period of 2 years after its incorporation, met the requirements for recognition as a VCMP — lodge with the Commissioner a document evidencing its status as a VCMP with 1 month after so meeting the requirements; or (b) if the incorporated limited partnership has not, within the period of 2 years after its incorporation, met the requirements for recognition as a VCMP — lodge with the Commissioner a notice of that fact as soon as practicable after the end of the 2 year period. (3) Subsection (4) applies if — (a) the registration of an incorporated limited partnership as an AFOF, ESVCLP or VCLP is revoked; or (b) an incorporated limited partnership ceases to be a VCMP. (4) The incorporated limited partnership must, within 7 days after the day on which the revocation takes effect or it ceases to be a VCMP, lodge with the Commissioner a notice of that revocation or cessation specifying the day on which the revocation or cessation took effect. (5) If subsection (1), (2) or (3) is not complied with, each general partner in the incorporated limited partnership commits an offence. Penalty for this subsection: a fine of $1 500. (6) A notice required to be lodged with the Commissioner under this section must be — (a) in the form approved by the Commissioner; and (b) contain the particulars that are required by the form or prescribed. Division 5 — Liability of partner 49. Limitation of liability of limited partner (1) Subject to section 42 and subsection (2), a limited partner in an incorporated limited partnership has no liability for the liabilities of — (a) the partnership; or (b) a general partner in the partnership. (2) Nothing in section 51 or 52 prevents either of the following in satisfaction of a liability of the partnership or a general partner in the partnership — (a) a contribution of capital or property made by a limited partner to the incorporated limited partnership being used; (b) an obligation of a limited partner to contribute capital or property to the incorporated limited partnership being enforced by any person to whom the obligation is owed. 50. Effect on liability of change in status of partner (1) If a general partner becomes a limited partner, the partner remains liable, as if the partner were a general partner, for any liability of the incorporated limited partnership that arose before the partner became a limited partner to the extent that the partnership is unable to satisfy the liability or to any greater extent provi