Partnership (Venture Capital Funds) 2003

Victorian Legislation and Parliamentary Documents i Partnership (Venture Capital Funds) Act 2003 Act No. 99/2003 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 1 3. Principal Act 2 4. New Part 5 inserted in Principal Act 2 PART 5—INCORPORATED LIMITED PARTNERSHIPS 2 Division 1—Preliminary 2 81. Definitions 2 82. Application of other provisions of this Act 3 Division 2—Nature and Formation of Incorporated Limited Partnerships 4 83. Partnership is formed on registration 4 84. Partnership is separate legal entity 4 85. Partners in an incorporated limited partnership 4 86. Partnership agreement 5 Division 3—Registration of Incorporated Limited Partnerships 6 87. Who may apply for registration? 6 88. How is an application made? 7 89. Registration of incorporated limited partnership 9 90. Register of Incorporated Limited Partnerships 10 91. Changes in registered particulars 11 92. Certificates of registration etc. 11 93. Business Names Act 1962 not to apply 13 94. Acts preparatory to registration do not constitute partnership 13 Division 4—Powers of Incorporated Limited Partnerships 14 95. Powers of partnership 14 96. Relationship of partners to others and between themselves 15 -- 1 of 60 -- Victorian Legislation and Parliamentary Documents Section Page ii Division 5—Liability and Powers of Limited Partners 18 97. Limitation of liability of limited partners 18 98. Limited partner not to take part in the management of the incorporated limited partnership 19 99. Definitions, etc. applicable to section 98 24 100. Differences between partners 26 101. Change in partners 27 102. Change in status of partners 27 103. Liability in respect of conduct or acts outside the State 28 104. Recognised incorporated limited partnerships under corresponding laws 28 105. Effect of sections 103 and 104 30 Division 6—Winding up of Incorporated Limited Partnership 31 106. Definition 31 107. Voluntary winding up 31 108. Winding up on Director's certificate 32 109. Review of certificate 33 110. Procedure for winding up on certificate 34 111. Distribution of assets on winding up required on Director's certificate 35 112. Application of Corporations Act to winding up 36 113. Director to be notified of winding up 38 114. Cancellation of incorporation 38 Division 7—Miscellaneous Provisions 39 115. Execution of documents 39 116. Entitlement to make assumptions 39 117. Assumptions that can be made under section 116 40 118. Identification of incorporated limited partnerships 42 119. Registered office 43 120. Lodgment of certain documents with the Director 43 121. Service 45 122. Entry in Register constitutes notice 46 123. False and misleading statements 46 124. Duty to furnish information 47 125. Confidentiality 47 126. Offences by partnerships and partners 48 127. Delegation 49 128. Regulations 49 5. Definition of partnership 51 6. Modifications of Part 3 53 -- 2 of 60 -- Victorian Legislation and Parliamentary Documents Section Page iii 7. New section 64A inserted 55 64A. Effect of sections 63 and 64 55 8. Regulations 56 ═══════════════ ENDNOTES 57 -- 3 of 60 -- Victorian Legislation and Parliamentary Documents 1 Partnership (Venture Capital Funds) Act 2003† [Assented to 2 December 2003] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Partnership Act 1958 so as to provide for the formation of incorporated limited partnerships. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. Victoria No. 99 of 2003 -- 4 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 2 3. Principal Act In this Act, the Partnership Act 1958 is called the Principal Act. 4. New Part 5 inserted in Principal Act After Part 4 of the Principal Act insert— 'PART 5—INCORPORATED LIMITED PARTNERSHIPS Division 1—Preliminary 81. Definitions In this Part— "Director" means Director within the meaning of the Fair Trading Act 1999; "firm-name", in relation to an incorporated limited partnership, means the name of the partnership as recorded in the Register; "general partner" means a person admitted as a partner in an incorporated limited partnership in accordance with the partnership agreement and who is not a limited partner; "incorporated limited partnership" means a partnership formed in accordance with this Part; s. 3 See: Act No. 6330. Reprint No. 6 as at 28 May 2003. LawToday: www.dms. dpc.vic. gov.au -- 5 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 3 "liability" includes any debt, obligation or liability of any kind, wherever and however incurred; "limited partner" means a person admitted as a partner in an incorporated limited partnership in accordance with the partnership agreement and whose liability for the liabilities of the partnership is limited in accordance with this Part; "limited partnership" has the same meaning as in Part 3; "partner", in relation to an incorporated limited partnership, means a general partner or a limited partner; "person" includes a partnership; "Register" means the Register of Incorporated Limited Partnerships kept under this Part; "special resolution", in relation to the limited partners, means a resolution that has been passed by at least 75% of the limited partners. 82. Application of other provisions of this Act (1) Parts 1 and 2 (except sections 22, 26, 27(2) and (3), 30, 31 and 34 and Division 4 of Part 2) apply to incorporated limited partnerships, except as provided by this Part. Note: Section 96(5) and (6) modify the application of certain provisions of Part 2. (2) If a provision made by or under this Part is inconsistent with a provision made by or under any other Part that applies to incorporated limited partnerships, the provision made by or under this Part prevails s. 4 -- 6 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 4 and the other provision is (to the extent of the inconsistency) of no force or effect in relation to incorporated limited partnerships. Division 2—Nature and Formation of Incorporated Limited Partnerships 83. Partnership is formed on registration An incorporated limited partnership is formed on registration under this Part. 84. Partnership is separate legal entity (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. 85. Partners in an incorporated limited partnership (1) An incorporated limited partnership must have— (a) at least one general partner but no more than 20 general partners; and (b) at least one limited partner. Note: There is no limit on the number of limited partners. s. 4 -- 7 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 5 (2) A body corporate may be a general partner or a limited partner. (3) For the purposes of sub-section (1)(a)— (a) if a general partner is a 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 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. 86. Partnership agreement (1) There must at all times be in force a written partnership agreement between the partners in an incorporated limited partnership. (2) A partnership agreement also has effect as a contract between the incorporated limited partnership and each partner under which the partnership and each partner agree to observe and perform the agreement so far as it applies to them. (3) Nothing in sub-section (2) prevents an incorporated limited partnership itself executing a partnership agreement. s. 4 -- 8 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 6 Division 3—Registration of Incorporated Limited Partnerships 87. Who may apply for registration? (1) An application for registration as an incorporated limited partnership may be made, in the circumstances described in sub- section (2), by a partnership or by persons proposing to be the partners in the proposed incorporated limited partnership. (2) The circumstances are— (a) that the partnership is registered under Part 2 of the Venture Capital Act 2002 of the Commonwealth as, or a general partner in the partnership or a proposed general partner in the proposed incorporated limited partnership intends to apply for registration of the partnership or proposed partnership under that Part as— (i) a VCLP within the meaning of that Act; or (ii) an AFOF within the meaning of that Act; or (b) that the partnership is a venture capital management partnership within the meaning of section 94D(3) of the Income Tax Assessment Act 1936 of the Commonwealth or the partners in the partnership or the proposed partners in the proposed incorporated limited partnership intend that the partnership or proposed partnership will meet the requirements set out in that section for recognition as a venture capital management partnership; or s. 4 -- 9 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 7 (c) such other circumstances as are prescribed. 88. How is an application made? (1) An application for registration as an incorporated limited partnership is made by lodging with the Director in accordance with this Part a statement signed by each partner or proposed partner. (2) The statement must be made in the form approved by the Director and must— (a) in the case of an application by a partnership, contain particulars of— (i) the firm-name of the partnership; and (ii) the full address of the office or principal office in Victoria of the partnership (to be called the "registered office" of the proposed incorporated limited partnership); (b) in the case of an application by persons proposing to be the partners in the proposed incorporated limited partnership, contain particulars of— (i) the proposed firm-name of the proposed incorporated limited partnership; and (ii) the full address of the proposed office or principal office in Victoria of the proposed incorporated limited partnership (to be called the "registered office" of the proposed incorporated limited partnership); s. 4 -- 10 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 8 (c) contain a statement as to whether it is proposed to have at the end of the firm- name of the proposed incorporated limited partnership— (i) the words "An Incorporated Limited Partnership"; or (ii) the expression "L.P."; or (iii) the expression "LP"; (d) contain particulars of the full name of each partner or proposed partner or, if the partner or proposed partner is a partnership, the name of the firm or, if the firm does not have a name, the full name of each partner in the firm; (e) contain particulars of the full address of each partner or proposed partner, being (in the case of an individual) his or her principal place of residence or (in the case of a body corporate) its registered office or principal place of business or (in the case of a partnership) its registered office or principal office; (f) contain a statement in relation to each partner or proposed partner as to whether that partner or proposed partner is, or is proposed to be, a general partner or a limited partner; (g) contain a statement in relation to each partner or proposed partner that is a partnership to the effect that the partner or proposed partner is a partnership; (h) in the case of an application by a partnership that is registered as a VCLP or an AFOF under Part 2 of the Venture Capital Act 2002 of the Commonwealth, be accompanied by a s. 4 -- 11 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 9 copy of a document evidencing its status as a VCLP or an AFOF; (i) in the case of an application by a partnership that is a venture capital management partnership within the meaning of section 94D(3) of the Income Tax Assessment Act 1936 of the Commonwealth, contain a statement that it is such a partnership; (j) contain such other particulars as are required by the regulations or by the approved form of statement. (3) An application under this section must be accompanied by the prescribed fee or, if no fee is prescribed, a fee of $500.00. 89. Registration of incorporated limited partnership (1) If an application for registration of an incorporated limited partnership has been made in accordance with section 88, the Director may register the incorporated limited partnership. (2) If the Director registers an incorporated limited partnership, the firm-name of the partnership is its name as recorded in the Register. (3) An incorporated limited partnership must have the words "An Incorporated Limited Partnership" (or the expression "L.P." or "LP" as an abbreviation) at the end of its firm-name, as recorded in the Register. (4) However, the Director must not record in the Register as the firm-name of an incorporated limited partnership a name that, in the opinion of the Director, would not be eligible s. 4 -- 12 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 10 for registration as a business name under the Business Names Act 1962. (5) Subject to sub-section (4), registration is effected by recording in the Register the particulars in the statement lodged with the Director. 90. Register of Incorporated Limited Partnerships (1) The Director must keep a register of incorporated limited partnerships registered under this Part (to be called the "Register of Incorporated Limited Partnerships"). (2) The Register may be kept in such form as the Director thinks fit. (3) The Director must make the information recorded in the Register available for public inspection, on payment of the prescribed fee or, if no fee is prescribed, a fee of $30.00, at the office of the Director during the ordinary business hours of that office. (4) The Director may correct any error or omission in the Register by— (a) inserting an entry; or (b) amending an entry; or (c) omitting an entry— if he or she decides that the correction is necessary. (5) The Director must not omit an entry in the Register unless satisfied that the whole of the entry was included in error. s. 4 -- 13 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 11 91. Changes in registered particulars (1) If any change occurs in relation to the registered particulars of an incorporated limited partnership, a statement setting out the changed particulars must be lodged with the Director within 7 days after the change occurred. (2) The statement must be signed by all the general partners, or by a general partner authorised by all the general partners for the purposes of this section. (3) The statement must— (a) be in the form approved by the Director; and (b) contain the particulars required by the regulations or by the approved form of statement; and (c) be accompanied by the prescribed fee or, if no fee is prescribed, a fee of $70.00. (4) If the statement is duly lodged, the Director must record the change in the Register as soon as possible. (5) If sub-section (1) is not complied with, each general partner in the incorporated limited partnership is guilty of an offence and liable to a penalty not exceeding 10 penalty units. 92. Certificates of registration etc. (1) The Director, at the time of— (a) registering an incorporated limited partnership; or (b) recording a change in the registered particulars of an incorporated limited partnership; or s. 4 -- 14 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 12 (c) correcting an error or omission in the Register in relation to an incorporated limited partnership— must issue to the general partners a certificate as to the formation and registered particulars as at that time of the incorporated limited partnership. (2) The prescribed fee or, if no fee is prescribed, a fee of $50.00, is payable on the issue of— (a) a certificate under sub-section (1)(b); or (b) a certificate under sub-section (1)(c) if the error or omission was not attributable to the Director or a person employed or engaged in the administration of this Part. (3) The Director may, on application accompanied by the prescribed fee or, if no fee is prescribed, a fee of $50.00, issue to the applicant a certificate in relation to an incorporated limited partnership as to the formation and registered particulars as at that time of the incorporated limited partnership. (4) A certificate under this section is to be in such form as the Director thinks fit. (5) A certificate under this section— (a) as to the formation of an incorporated limited partnership, is conclusive evidence that the incorporated limited partnership was formed on the date of registration referred to in the certificate; and s. 4 -- 15 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 13 (b) as to the registered particulars as at a specified time of an incorporated limited partnership, is (unless the contrary is established) conclusive evidence that the partnership existed at that time; and (c) as to the general partners and limited partners in an incorporated limited partnership as at a specified time, is (unless the contrary is established) conclusive evidence of the general partners and limited partners as at that time; and (d) as to any other particular of an incorporated limited partnership recorded in the Register as at a specified time, is (unless the contrary is established) conclusive evidence of that particular as at that time. 93. Business Names Act 1962 not to apply The Business Names Act 1962 does not apply so as to require an incorporated limited partnership to register a business name if that name is the firm-name of the partnership registered under this Part. 94. Acts preparatory to registration do not constitute partnership Any act done in connection with the making of an application for registration under this Part by or on behalf of persons proposing to be the partners in a proposed incorporated limited partnership does not of itself create a partnership between those persons. s. 4 -- 16 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 14 Division 4—Powers of Incorporated Limited Partnerships 95. Powers of partnership Subject to the partnership agreement, 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 Victoria or outside Australia— (a) to carry on the business of the partnership; and (b) to do all things necessary or convenient to be done for, or in connection with, the carrying on of the business of the partnership including (for example) the power to— (i) enter into contracts or otherwise acquire rights or liabilities; or (ii) create, confer, vary or cancel interests in the partnership; or (iii) acquire, hold and dispose of real or personal property or of an interest (whether beneficial or legal) in real or personal property; or (iv) appoint agents and attorneys, and act as agent for other persons; or (v) form, and participate in the formation of, companies or incorporated limited partnerships; or s. 4 -- 17 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 15 (vi) participate in partnerships, trusts, unincorporated joint ventures and other arrangements for the sharing of profits; or (vii) do such other things as it is authorised to do by or under this Part or the partnership agreement. 96. Relationship of partners to others and between themselves (1) Except as otherwise provided by the partnership agreement or agreed between the partners— (a) a general partner, the incorporated limited partnership or an officer, employee or agent of a general partner or of the incorporated limited partnership is not an agent of a limited partner and the acts of a general partner or of the incorporated limited partnership or of such an officer, employee or agent do not bind a limited partner; and (b) a limited partner is not an agent of a general partner or of another limited partner or of the incorporated limited partnership and the acts of a limited partner do not bind a general partner or another limited partner or the incorporated limited partnership itself. (2) A reference in sub-section (1) to a general partner includes, if the general partner is a partnership, a partner in that partnership. s. 4 -- 18 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 16 (3) Nothing in sub-section (1) prevents the making of, or limits or restricts, an agreement between two partners or between a partner and the incorporated limited partnership under which— (a) one partner acts as an agent of another partner or of the partnership and, by so acting, binds the other partner or the partnership; or (b) the partnership acts as an agent of a partner and, by so acting, binds the partner. (4) Any consent or authority which under this Act is required or permitted to be given by a partner or two or more partners or all the partners may, in the case of an incorporated limited partnership and without limiting any other way in which it might be given, be given by that partner or those partners by or under the partnership agreement either in relation to all cases, or in relation to all cases subject to specified exceptions, or in relation to any specified case or class of case. (5) Division 2 of Part 2, in its application to an incorporated limited partnership, has effect as if— (a) any reference in it to a partner (other than the reference in section 12 to the partners and any reference in section 14 to a co-partner) were a reference to a general partner only; and (b) the reference in section 10 to a person did not include a reference to a limited partner; and s. 4 -- 19 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 17 (c) the words "the incorporated limited partnership" were substituted in section 13 for the words "the other partners"; and (d) section 13 contained the following sub- section— "(2) Despite sub-section (1), a general partner in an incorporated limited partnership within the meaning of Part 5 is only liable for any liability of the partnership if the partnership is unable to satisfy the liability except as otherwise provided by the partnership agreement."; and (e) any reference in section 13 or 21(2) to the debts or obligations of the firm were a reference to the liabilities (within the meaning of Part 5) of the incorporated limited partnership; and (f) the words "or a limited partner" were inserted in section 14(1) after the words "not being a partner"; and (g) the expression "(not including any act or omission as a general partner of an incorporated limited partnership)" were inserted in section 14(2) after the expression "Corporations Act,"; and (h) the words "as newly constituted" were omitted in section 21(3). (6) Section 24(1), in its application to an incorporated limited partnership, has effect as if the words "the incorporated limited partnership" were substituted for the words "the partners". s. 4 -- 20 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 18 (7) A limited partner, as limited partner, is not a proper party to any proceeding commenced in a court or tribunal by or against the 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. (8) This section is subject to section 98 (limited partner not to take part in the management of the incorporated limited partnership). Division 5—Liability and Powers of Limited Partners 97. Limitation of liability of limited partners (1) A limited partner has no liability for the liabilities of the incorporated limited partnership or of a general partner. (2) Nothing in sub-section (1) prevents— (a) a contribution of capital or property made by a limited partner to the incorporated limited partnership being used; or (b) an obligation of a limited partner to contribute capital or property to the incorporated limited partnership being enforced by any person to whom the obligation is owed— in satisfaction of a liability of the partnership or of a general partner. (3) This section is subject to section 98 (limited partner not to take part in the management of the incorporated limited partnership). s. 4 -- 21 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 19 98. Limited partner not to take part in the management of the incorporated limited partnership (1) A limited partner must not take part in the management of the business of the incorporated limited partnership. (2) If a limited partner takes part in the management of the business of the incorporated limited partnership— (a) the acts of the limited partner bind the partnership in circumstances where— (i) they would be binding on the partnership if they were the acts of a general partner in the partnership; and (ii) the person to whom the liability was incurred reasonably believed, having regard to the limited partner's conduct at the time the liability was incurred, that the limited partner was a general partner in the partnership; and (b) where under paragraph (a) the partnership is bound by the acts of the limited partner, the limited partner is liable, as if a general partner, for any liability incurred by the partnership to a person as a direct result of the acts of the limited partner if the partnership is unable to satisfy the liability. (3) A limited partner is not to be regarded as taking part in the management of the business of the incorporated limited partnership merely because the limited partner or a person acting on behalf of the limited partner— s. 4 -- 22 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 20 (a) is an employee or an independent contractor of the partnership or of a general partner, or is an officer of a general partner that is a body corporate; or (b) gives advice to, or on behalf of, the partnership or a general partner in the 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 between the limited partner and a general partner; or (c) gives a guarantee or indemnity in respect of any liability of the partnership or of a general partner; or (d) takes any action, or participates in any action taken by any other limited partner, for the purpose of enforcing the rights, or safeguarding the interests, of the limited partner as a limited partner; or (e) if permitted by the partnership agreement— (i) calls, requisitions, convenes, chairs, participates in, postpones, adjourns or makes a record of a meeting of the partners or of the limited partners or of any of them; or (ii) whether at the meeting or in writing or otherwise, requisitions, formulates, signs, approves, disapproves, proposes, moves, supports, opposes, speaks to or s. 4 -- 23 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 21 votes on any resolution, or an amendment to any resolution, whether or not considered or to be considered at a meeting of the partners or of the limited partners or of any of them; or (f) exercises a power conferred on the limited partner by sub-section (4) or under the partnership agreement or otherwise has, or exercises, a right to— (i) have access to and inspect the books or records of the partnership or copy any of them; or (ii) examine the state or prospects of the business of the partnership or advise, or consult with, other partners in relation to such matters; or (g) gives advice to, or consults with, or is or acts as an officer, director, security holder, partner, agent, employee or independent contractor of, an associate of the partnership; or (h) is or acts as a lender to, or fiduciary for, an associate of the partnership; or (i) to the extent authorised by the partnership agreement, participates on, or has or exercises any right to appoint one or more persons to, or remove one or more persons from, a committee which considers, approves of, consents to or disapproves of any one or more of the following proposals from a general partner— s. 4 -- 24 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 22 (i) a proposal involving a material change in the nature of the business of the partnership (including a change in, or departure from, any investment guidelines, policies or conditions relating to the business of the partnership); or (ii) a proposal for the adoption of a method for valuing some or all of the assets of the partnership (including a change to, replacement of or variation from such a method); or (iii) a proposal for an extension or reduction in the period in which, under the partnership agreement, investments (or certain types of investments) can be made by the partnership, or for any approval or disapproval of investments that the partnership does not otherwise have a right to make; or (iv) a proposal relating to any actual or potential transaction or other matter involving any actual or potential conflict of interest; or (v) a proposal relating to any actual or potential transaction, contract, arrangement or understanding between one or more of the partners, or their associates, and the general partner, the partnership or any associate of the general partner or of the partnership; or s. 4 -- 25 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 23 (vi) a proposal for the delegation, waiver, release or variation of an authority, right, duty or obligation of the general partner; or (vii) a proposal for the appointment of any person as a senior executive of the general partner or of an associate of the general partner— but not so as to permit any direction of the general partner by a limited partner as to any matter regarding the management of the business of the partnership where the general partner is acting within the terms of the partnership agreement; or (j) nominates, selects, investigates, evaluates or negotiates with, or participates on a committee which proposes, considers, approves of, consents to or disapproves of any nomination, selection, appointment, change in control or ownership, suspension, replacement or removal of a general partner or an associate of a general partner. (4) Subject to the partnership agreement, a limited partner or a person authorised by the limited partner may at any time— (a) have access to and inspect the books or records of the partnership or copy any of them; and (b) examine the state or prospects of the business of the partnership and advise, or consult with, other partners in relation to such matters. s. 4 -- 26 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 24 (5) The provisions of this section (other than sub-section (4)) may not be varied by the partnership agreement or with the consent of the partners, whether given by or under the partnership agreement or otherwise. Note: Section 96(4) enables partners to give consent by or under the partnership agreement. 99. Definitions, etc. applicable to section 98 (1) In section 98— (a) a reference to an associate of a general partner includes a reference to— (i) if the general partner is a partnership, a partner in that partnership (a partner in the general partner); and (ii) any person who has an interest in the general partner or in any partner in the general partner, whether as security holder, trustee, responsible entity, manager, custodian, sub-custodian, nominee, administrator, executor, legal personal representative, beneficiary or otherwise; and (iii) any person to whom the general partner or any partner in the general partner has delegated any power, authority, right, duty or obligation of the general partner in relation to the partnership; and (iv) if the general partner or a partner in the general partner or a person covered by sub-paragraph (ii) or (iii) is a body corporate, a related body corporate of that body corporate; and s. 4 -- 27 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 25 (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 sub- paragraph (ii), (iii) or (iv); and (b) a reference to an associate of a limited partner includes a reference to— (i) if the limited partner is a partnership, a partner in that partnership (a partner in the limited partner); and (ii) any person who has an interest in the limited partner or in any partner in the limited partner, whether as security holder, trustee, responsible entity, manager, custodian, sub-custodian, nominee, administrator, executor, legal personal representative, beneficiary or otherwise; and (iii) if the limited partner or a partner in the limited partner or a person covered by sub-paragraph (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 sub- paragraph (ii) or (iii); and s. 4 -- 28 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 26 (c) a reference to an associate of an incorporated limited partnership includes a reference to— (i) any person or partnership in which the incorporated limited partnership has an interest, whether as security holder or otherwise; and (ii) if a person or partnership covered by sub-paragraph (i) is a body corporate, a related body corporate of that body corporate. (2) In section 98 and this section, a reference to a general partner in an incorporated limited partnership includes, if the general partner is a partnership, a partner in that partnership. (3) In section 98 and this section— "security holder", in relation to a body (whether corporate or unincorporated) includes a holder of securities (within the meaning given by section 92(3) of the Corporations Act) in or of the body; "related body corporate" has the meaning given by section 9 of the Corporations Act. 100. 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 provisions of this section may be varied with the consent of the partners. s. 4 -- 29 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 27 101. Change in partners (1) A limited partner may, with the consent of the general partners and the agreement of the transferee, transfer the whole or a portion of the limited partner's interest in the incorporated limited partnership. (2) If the whole of the limited partner's interest in the incorporated limited partnership is transferred to the one transferee, the transferee becomes a limited partner in substitution for the transferor with all the rights and obligations of the transferor. (3) If only a portion of the limited partner's interest in the incorporated limited partnership is transferred to a transferee, the transferee becomes a limited partner in substitution for the transferor in respect of the transferred portion and with all the rights and obligations of the transferor in respect of that portion. (4) A person may be admitted as a partner in an incorporated limited partnership without the necessity to obtain the consent of any limited partner. (5) The provisions of this section may be varied with the consent of the partners. 102. Change in status of partners (1) If a general partner becomes a limited partner, the partner remains liable for any liability of the incorporated limited partnership that arose before the partner became a limited partner. (2) If a limited partner becomes a general partner, the partner remains not liable (subject to section 98(2)) for any liability of the incorporated limited partnership that s. 4 -- 30 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 28 arose before the partner became a general partner. Note: Section 98(2) imposes liability in certain circumstances on a limited partner who takes part in the management of the business of the incorporated limited partnership. 103. Liability in respect of conduct or acts outside the State A limited partner in an incorporated limited partnership may only be liable for a liability incurred by the partnership as a result of— (a) the conduct of the incorporated limited partnership's business outside the State; or (b) acts outside the State of a general partner, a limited partner or the incorporated limited partnership or of any officer, employee or agent of a general partner or of the incorporated limited partnership— in circumstances where the limited partner would be so liable if the conduct or acts occurred within the State. Note: Section 98(2) imposes liability in certain circumstances on a limited partner who takes part in the management of the business of the incorporated limited partnership. 104. Recognised incorporated limited partnerships under corresponding laws (1) In this section— "corresponding law" means— (a) a law of another State or of a Territory or of another country or jurisdiction that corresponds to this Part; or s. 4 -- 31 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 29 (b) a law declared under sub- section (3) to be a corresponding law for the purposes of this Part; "recognised incorporated limited partnership" means a partnership formed in accordance with a corresponding law. (2) A partner in a recognised incorporated limited partnership may only be liable for a liability incurred by the partnership as a result of— (a) the conduct of the recognised incorporated limited partnership's business in this State; or (b) the acts in this State of a partner in the recognised incorporated limited partnership or of the partnership itself or of any officer, employee or agent of such a partner or of the partnership— in circumstances where the partner would be so liable under the corresponding law if the conduct or acts occurred in the place where the recognised incorporated limited partnership was formed. (3) Subject to sub-sections (4) and (5), the Governor in Council may, by Order published in the Government Gazette, declare a law of another State, a Territory or another country or jurisdiction to be a corresponding law for the purposes of this Part. (4) The law of another State or of a Territory may not be declared to be a corresponding law unless the Minister has certified to the Governor in Council that under that law a partner in an incorporated limited partnership s. 4 -- 32 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 30 formed in accordance with this Part and registered or otherwise recognised under that law may only be liable for a liability incurred by the partnership as a result of— (a) the conduct in that State or Territory of the business of the partnership; or (b) the acts in that State or Territory of a partner in the partnership or of the partnership itself or of any officer, employee or agent of such a partner or of the partnership— in circumstances where the partner would be so liable under this Part if the conduct or acts occurred within the State. (5) The law of another country or jurisdiction (not being another State or a Territory) may not be declared to be a corresponding law unless the Minister has certified to the Governor in Council that that law provides for the limitation of liability of certain partners in certain partnerships. (6) This section is additional to, and does not derogate from, any rule of law under which recognition is or may be given to a limitation of liability of a partner in a partnership. 105. Effect of sections 103 and 104 No implication is to be taken as arising from section 103 or 104 that a limited partner has any liability (or but for that section would have any liability) in connection with conduct or acts outside the State that the limited partner would not have in connection with conduct or acts within the State. s. 4 -- 33 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 31 Division 6—Winding up of Incorporated Limited Partnership 106. Definition In this Division— "assets", in relation to an incorporated limited partnership, means the assets remaining after satisfaction of the liabilities of the partnership and the costs, charges and expenses of the winding up. 107. Voluntary winding up (1) An incorporated limited partnership may be wound up voluntarily— (a) in accordance with the partnership agreement; or (b) subject to the partnership agreement, if the limited partners so resolve by special resolution. (2) On a voluntary winding up of an incorporated limited partnership— (a) if the partnership agreement sets out how the assets are to be dealt with on a voluntary winding up, the assets must be dealt with in accordance with the partnership agreement; or (b) in any other case, the assets are to be distributed among the partners in shares that are proportionate to their respective contributions of capital or property to the partnership. (3) Any person aggrieved by the operation of this section in relation to the assets of an incorporated limited partnership may apply to the Supreme Court. s. 4 -- 34 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 32 (4) On an application under sub-section (3) the Supreme Court may make any order relating to the disposal of the assets that it thinks fit. 108. Winding up on Director's certificate (1) The Director may, by notice given to the incorporated limited partnership, require an incorporated limited partnership to show good cause why it should not be required to be wound up if the Director is of the opinion— (a) that the partnership has ceased to carry on business; or (b) that, having been incorporated on the basis that the partnership is or is intended to be— (i) registered as a VCLP or an AFOF under Part 2 of the Venture Capital Act 2002 of the Commonwealth; or (ii) a venture capital management partnership within the meaning of section 94D(3) of the Income Tax Assessment Act 1936 of the Commonwealth— the partnership has ceased to be, or has not within the period of 2 years after its incorporation become, so registered or such a partnership; or (c) that none of the partners is a limited partner; or (d) that incorporation of the partnership has been obtained by mistake or fraud; or (e) that the partnership exists for an illegal purpose. s. 4 -- 35 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 33 (2) If, on the expiration of 28 days after the notice is given under sub-section (1), the Director is satisfied that the incorporated limited partnership should be required to be wound up, the Director may publish in the Government Gazette a certificate as to the requirement that the incorporated limited partnership be wound up. (3) The Director must give notice of the publication of the certificate to the incorporated limited partnership as soon as possible after the publication. (4) The Director must not publish a certificate under sub-section (2) unless satisfied that good cause has not been shown why the incorporated limited partnership should not be required to be wound up. (5) A notice under sub-section (1) or (3) must be given to the incorporated limited partnership— (a) by being served on the incorporated limited partnership at its registered office; or (b) if service cannot reasonably be effected, by being published in a newspaper circulating generally in the State. 109. Review of certificate (1) A person whose interests are affected by a decision of the Director to publish a certificate under section 108(2) may apply to the Supreme Court for review of the decision. (2) An application under sub-section (1) must be made within 28 days after the certificate is published. s. 4 -- 36 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 34 (3) The operation of the certificate is suspended on the making of an application for review until the application is withdrawn or the review is determined. (4) In determining an application for review, the Supreme Court may— (a) affirm the decision under review; or (b) set aside the decision under review and cancel the certificate. (5) Nothing in this section prevents the Director cancelling a certificate published under section 108(2) at any time after an application is made under sub-section (1). 110. Procedure for winding up on certificate (1) A winding up of an incorporated limited partnership required on a certificate of the Director published under section 108(2)— (a) must be commenced— (i) no later than the end of 28 days after the day on which the certificate is published unless an application is made under section 109(1); or (ii) if an application is made under section 109(1) and the Supreme Court affirms the decision to publish the certificate, on the determination of the application; and (b) must be completed by the day specified by the Director in a notice given to the partnership, not being a day earlier than 60 days after the day on which the notice is given. s. 4 -- 37 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 35 (2) On the commencement of the winding up, the Director may appoint a person to be the liquidator of the incorporated limited partnership. (3) The liquidator may be a general partner in the incorporated limited partnership and need not be a registered liquidator under the Corporations Act. (4) The liquidator must within 10 days publish notice of his or her appointment in the Government Gazette. (5) The liquidator must give such security as may be prescribed and is entitled to receive such fees as are fixed by the Director. (6) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Director. (7) The reasonable costs of a winding up required on a certificate of the Director published under section 108(2) are payable out of the property of the incorporated limited partnership. 111. Distribution of assets on winding up required on Director's certificate (1) On a winding up of an incorporated limited partnership required on a certificate of the Director published under section 108(2)— (a) if the partnership agreement sets out how the assets are to be dealt with on such a winding up, the assets must be dealt with in accordance with the partnership agreement; or s. 4 -- 38 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 36 (b) in any other case, the assets are to be distributed among the partners in shares that are proportionate to their respective contributions of capital or property to the partnership. (2) Any person aggrieved by the operation of this section in relation to the assets of an incorporated limited partnership may apply to the Supreme Court. (3) On an application under sub-section (2) the Supreme Court may make any order relating to the disposal of the assets that it thinks fit. 112. Application of Corporations Act to winding up (1) The winding up of an incorporated limited partnership (other than a voluntary winding up or a winding up required on a certificate of the Director published under section 108(2)) is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.7 of the Corporations Act (Winding up bodies other than companies) and that Part applies as if the incorporated limited partnership were a Part 5.7 body within the meaning of that Act, subject to the following modifications— (a) as if the words "or in the public interest" were inserted in paragraph (c)(ii) of section 583 after the words "just and equitable"; (b) as if paragraph (d) of section 583 did not form part of that section; s. 4 -- 39 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 37 (c) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations. Note: Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. This does not apply to any provisions that already apply to a matter as a law of the Commonwealth. (2) The Australian Securities and Investments Commission may perform a function conferred on it under a law applied by sub- section (1)— (a) pursuant to an agreement or arrangement of the kind referred to in section 11(8) or (9A)(b) of the ASIC Act; and (b) if the Commission is authorised to perform that function under section 11 of that Act. (3) Unless a function under a law applied by sub-section (1) is conferred on the Australian Securities and Investments Commission as referred to in sub-section (2), that law applies as if a reference in it to the Commission were a reference to the Director. s. 4 -- 40 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 38 113. Director to be notified of winding up (1) An incorporated limited partnership must lodge with the Director a notice of the commencement of the winding up of the partnership within 7 days after— (a) the passing of a special resolution referred to in section 107(1)(b); or (b) in any other case, the commencement of the winding up. (2) An incorporated limited partnership must lodge with the Director a notice of the completion of the winding up of the partnership within 7 days after that completion, specifying the date on which the winding up was completed. (3) The Director must, as soon as practicable after receiving a notice under sub-section (1) or (2), record the receipt of the notice in the Register. (4) If sub-section (1) or (2) is not complied with, each general partner in the incorporated limited partnership is guilty of an offence and liable to a penalty not exceeding 10 penalty units. 114. Cancellation of incorporation (1) The Director must, by notice published in the Government Gazette, cancel the incorporation of an incorporated limited partnership as soon as practicable after the partnership is wound up. (2) The Director must, as soon as practicable after the publication of a notice under sub- section (1), record the cancellation of the incorporation in the Register. s. 4 -- 41 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 39 (3) An incorporated limited partnership ceases to exist on the cancellation of its incorporation under this Part. Division 7—Miscellaneous Provisions 115. Execution of documents (1) All courts must take judicial notice of the common seal of an incorporated limited partnership affixed to a document and, until the contrary is proved, must presume that it was duly affixed. (2) Without limiting the ways in which an incorporated limited partnership may execute a document (including a deed), an incorporated limited partnership may execute a document— (a) without using a common seal (whether it has one or not) if the document is signed by a general partner; or (b) as a deed if the document is expressed to be executed as a deed and is executed with the use of a common seal or in accordance with paragraph (a). 116. Entitlement to make assumptions (1) A person is entitled to make the assumptions in section 117 in relation to dealings with an incorporated limited partnership. The incorporated limited partnership is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. s. 4 -- 42 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 40 (2) A person is entitled to make the assumptions in section 117 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from an incorporated limited partnership. The incorporated limited partnership and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. (3) The assumptions may be made even if a partner or agent of the incorporated limited partnership acts fraudulently, or forges a document, in connection with the dealings. (4) A person is not entitled to make an assumption in section 117 if at the time of the dealings they knew or suspected that the assumption was incorrect. 117. Assumptions that can be made under section 116 (1) A person may assume that the partnership agreement of the incorporated limited partnership has been complied with. (2) A person may assume that anyone who appears, from information provided by the incorporated limited partnership that is available to the public from the Register, to be a general partner in the incorporated limited partnership— (a) is a general partner in the incorporated limited partnership; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a general partner in an incorporated limited partnership. s. 4 -- 43 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 41 (3) A person may assume that anyone who is held out by the incorporated limited partnership to be a general partner in, or an agent of, the incorporated limited partnership— (a) is a general partner in the incorporated limited partnership or has been duly appointed as an agent of the incorporated limited partnership, as the case requires; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of partner in, or agent of, an incorporated limited partnership. (4) A person may assume that the general partners in, and agents of, the incorporated limited partnership properly perform their duties to the incorporated limited partnership. (5) A person may assume that a document has been duly executed by the incorporated limited partnership if the document appears to have been signed in accordance with section 115(2). (6) A person may assume that a document has been duly executed by the incorporated limited partnership if the incorporated limited partnership's common seal appears to have been affixed to the document in accordance with section 115(1). (7) A person may assume that a general partner in, or agent of, the incorporated limited partnership who has authority to issue a document or certified copy of a document on s. 4 -- 44 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 42 its behalf also has authority to warrant that the document is genuine or is a true copy. (8) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section. 118. Identification of incorporated limited partnerships (1) In this section, "document" includes any letter, notice, publication, written offer, contract, order for goods or services, invoice, bill of exchange, promissory note, cheque, negotiable instrument, endorsement, letter of credit, receipt and statement of account. (2) Any document issued on behalf of an incorporated limited partnership in connection with the conduct of the partnership's business must contain in legible letters the words "An Incorporated Limited Partnership" (or the expression "L.P." or "LP" as an abbreviation) at the end of the firm-name of the partnership. (3) A person who— (a) issues or authorises the issue of a document in contravention of this section; or (b) being a general partner in the incorporated limited partnership concerned—is aware that documents are being issued in contravention of this section— is guilty of an offence and liable to a penalty not exceeding 20 penalty units. s. 4 -- 45 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 43 (4) The certificate of registration of an incorporated limited partnership must be displayed at all times in a conspicuous position at the registered office of the partnership. (5) If the certificate of registration is not so displayed, each general partner in the incorporated limited partnership is guilty of an offence and liable to a penalty not exceeding 20 penalty units. 119. Registered office (1) An incorporated limited partnership must keep in Victoria (at the place shown in the Register as the address of the registered office of the partnership) an office to which all communications with the partnership may be addressed. (2) The regulations may prescribe the hours during which the registered office is to be open and accessible to the public. (3) If sub-section (1) is not complied with, each general partner in the incorporated limited partnership is guilty of an offence and liable to a penalty not exceeding 10 penalty units. 120. Lodgment of certain documents with the Director (1) An incorporated limited partnership that was incorporated on the basis of an intention to apply for registration of the partnership as a VCLP or an AFOF under Part 2 of the Venture Capital Act 2002 of the Commonwealth must, within one month after being so registered, lodge with the Director a copy of a document evidencing its status as a VCLP or an AFOF. s. 4 -- 46 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 44 (2) An incorporated limited partnership that was incorporated on the basis of an intention to meet the requirements for recognition as a venture capital management partnership within the meaning of section 94D(3) of the Income Tax Assessment Act 1936 of the Commonwealth must, within one month after becoming such a partnership, lodge with the Director a statement that it is such a partnership. (3) If— (a) the registration of an incorporated limited partnership as a VCLP or an AFOF under Part 2 of the Venture Capital Act 2002 of the Commonwealth is revoked; or (b) an incorporated limited partnership ceases to be a venture capital management partnership within the meaning of section 94D(3) of the Income Tax Assessment Act 1936 of the Commonwealth— the incorporated limited partnership must, within 7 days after the date on which that revocation took effect or it ceased to be such a partnership, lodge with the Director a notice of that revocation or cessation, specifying the date on which it took effect. (4) If an incorporated limited partnership ceases to carry on business, the incorporated limited partnership must, as soon as practicable, lodge with the Director a notice of the cessation, specifying the date on which it took effect. s. 4 -- 47 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 45 (5) A copy of a document, a statement or a notice required to be lodged with the Director under this section must be accompanied by the prescribed fee or, if no fee is prescribed, a fee of $70.00. (6) A notice required to be lodged with the Director under this section must be— (a) in the form approved by the Director; and (b) contain the particulars required by the regulations or the approved form of notice. (7) If sub-section (1), (2), (3) or (4) is not complied with, each general partner in the incorporated limited partnership is guilty of an offence and liable to a penalty not exceeding 10 penalty units. 121. Service (1) Without affecting any other method of serving documents on an incorporated limited partnership, a document concerning the business of an incorporated limited partnership may be duly served on the partnership if it is left at, or sent by post addressed to, the registered office of the partnership for the time being shown in the Register. (2) This section does not apply to a document relating to proceedings before a court. s. 4 -- 48 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 46 122. Entry in Register constitutes notice An entry in the Register of any particular fact concerning an incorporated limited partnership, including an entry stating the effect of any notice received by the Director, is sufficient notice of the fact or of the effect of the notice to all persons who deal with the partnership. 123. False and misleading statements (1) A person who, in a document required by or for the purposes of this Part or lodged with or submitted to the Director under this Part— (a) makes or authorises the making of a statement that to his or her knowledge is false or misleading in a material particular; or (b) omits or authorises the omission of any matter or thing without which the statement is to his or her knowledge misleading in a material respect— is guilty of an offence and liable to a penalty not exceeding 60 penalty units. (2) A person who, in a document required by or for the purposes of this Part or lodged with or submitted to the Director under this Part— (a) makes or authorises the making of a statement that is false or misleading in a material particular; or (b) omits or authorises the omission of any matter or thing without which the statement would be misleading— without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which s. 4 -- 49 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 47 the document would be misleading, as the case requires, is guilty of an offence and liable to a penalty not exceeding 60 penalty units. 124. Duty to furnish information (1) For the purpose of monitoring compliance with this Part or the regulations made for the purposes of this Part, the Director may by notice in writing require an incorporated limited partnership to furnish within a period specified in the notice (being a period of not less than 28 days) or within such further period as the Director may allow such information as is specified in the notice. (2) An incorporated limited partnership required under sub-section (1) to furnish information to the Director must within the period specified in the notice or within such further period as the Director has allowed furnish such information as it is within its power to furnish and must not furnish any information which to its knowledge is false or misleading in a material particular. Penalty: 60 penalty units. 125. Confidentiality (1) The Director or a person employed or engaged in the administration of this Part must not, except to the extent necessary to carry out their functions under this Part, give to any other person, whether directly or indirectly, any information acquired by the Director or that person (as the case requires) in carrying out those functions. Penalty: 60 penalty units. s. 4 -- 50 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 48 (2) Sub-section (1) does not apply to the giving of information— (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or of a Territory or of the Commonwealth; or (d) with the written authority of the person to whom the information relates. 126. Offences by partnerships and partners (1) If this Part provides that a person, being a partnership (other than a partnership that is incorporated or is otherwise a separate legal entity), is guilty of an offence, that reference to the person is to be read as a reference to— (a) each partner in the partnership; or (b) in the case of a partnership in which any partner has under the law of the place where it is formed limited liability for the liabilities of the partnership, each partner in the partnership whose liability is not so limited. (2) In any proceeding against a partner for an offence against this Part brought in reliance on sub-section (1) or under section 91(5), 113(4), 118(5), 119(3) or 120(7) it is a defence to the charge for the partner to prove that the partner took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. s. 4 -- 51 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 49 127. Delegation The Director, by instrument, may delegate to any person or class of person employed under Part 3 of the Public Sector Management and Employment Act 1998 in the administration of this Part, any of the Director's functions or powers under this Part, other than this power of delegation. 128. Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part. (2) Without limiting sub-section (1), the regulations may make provision for or with respect to— (a) the keeping of records by an incorporated limited partnership; and (b) information or copies of records or documents required to be provided to the Director by an incorporated limited partnership; and (c) the form in which any record required under this Part to be kept is to be kept; and (d) the fees required to accompany an application, statement, notice or other document lodged under this Part or the fees payable for the inspection of the Register or for the issue of certificates of information recorded in the Register. s. 4 -- 52 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 50 (3) A power conferred by this Part to make regulations may be exercised— (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, as respects the cases in relation to which the power is exercised— (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or (ii) any such provision either unconditionally or subject to any specified condition. (4) Regulations made under this Part may be made— (a) so as to apply at all times or at a specified time; and (b) so as to require a matter affected by the regulations to be— (i) in accordance with a specified standard or specified requirement; or (ii) approved by or to the satisfaction of a specified person or a specified class of persons; or (iii) as specified in both sub- paragraphs (i) and (ii); and s. 4 -- 53 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 51 (c) so as to apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person whether— (i) wholly or partially or as amended by the regulations; or (ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; and (d) so as to confer a discretionary authority or impose a duty on a specified person or a specified class of persons; and (e) so as to provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and (f) so as to impose a penalty not exceeding 20 penalty units for a contravention of the regulations. (5) Nothing in this section limits the operation of section 79B or 80.'. 5. Definition of partnership (1) In section 5(1) of the Principal Act, after "profit" insert "and includes an incorporated limited partnership within the meaning of Part 5". (2) After section 5(1) of the Principal Act insert— '(1A) A reference in the following sections to a partnership includes a reference to a partnership formed in accordance with a law s. 5 -- 54 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 52 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 is limited and whether or not under that law the partnership is incorporated or is otherwise a separate legal entity— (a) section 51(3); (b) section 54(2)(d), (e), (fa) and (h) as applying in cases where a partner is a partnership; (c) section 60(3); (d) section 64(5); (e) section 85(3); (f) section 88(2)(d), (e) and (g) as applying in cases where a partner or proposed partner is a partnership; (g) section 95(b)(vi); (h) section 96(2); (i) sections 99(1)(a)(i), (1)(b)(i), (1)(c) and 99(2); (j) sections 104(1) (definition of "recognised incorporated limited partnership"), 104(2), 104(5) and 104(6).'. (3) In section 5(2) of the Principal Act, after "association" insert "(other than, for the purposes of the sections specified in sub-section (1A), a partnership which under the law of the place where it is formed is incorporated or is otherwise a separate legal entity)". s. 5 -- 55 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 53 (4) After section 5(2) of the Principal Act insert— "(3) A reference in this Act to a firm includes a reference to an incorporated limited partnership within the meaning of Part 5.". 6. Modifications of Part 3 (1) In section 49(1) of the Principal Act— (a) the definition of "debt" is repealed; and (b) after the definition of "general partner" insert— ' "liability" includes any debt, obligation or liability of any kind, wherever and however incurred;'; and (c) in the definition of "limited partner", for "to contribute to the debts or obligations" substitute "for the liabilities". (2) After section 51(2) of the Principal Act insert— "(3) For the purposes of sub-section (2)— (a) if a general partner is a partnership and no partner in that partnership has, under 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 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 s. 6 -- 56 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 54 partnership whose liability is so limited.". (3) In section 54(2) of the Principal Act— (a) in paragraph (d) after "partner" insert "or, if the partner is a partnership, the name of the firm or, if the firm does not have a name, the full name of each partner in the firm"; and (b) in paragraph (e) after "business" insert "or (in the case of a partnership) its registered office or principal office"; and (c) after paragraph (f) insert— "(fa) a statement in relation to each partner that is a partnership to the effect that the partner is a partnership;"; and (d) in paragraph (h)— (i) after "property" insert "(or, in the case of a limited partner that is a partnership, the aggregate amounts of capital or values of property)"; and (ii) after "outstanding" insert "(or, in the case of a limited partner that is a partnership, the aggregate amounts or values actually contributed and the aggregate amounts or values outstanding)". (4) In section 56(2)(b) of the Principal Act, after "concerned" insert "or, if that limited partner is a limited partnership, by all the general partners in that limited partnership or by a general partner in that limited partnership authorised by all the general partners in that limited partnership for the purposes of this section". (5) In section 60(1) of the Principal Act, for "debts or obligations" substitute "liabilities". s. 6 -- 57 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 55 (6) After section 60(2) of the Principal Act insert— "(3) If a partnership (the investing partnership) is a limited partner in a limited partnership (the principal partnership), a partner in the investing partnership has no separate liability to contribute to the liabilities of the principal partnership, but nothing in this sub-section affects any liability of the investing partnership as a limited partner to contribute to those liabilities.". (7) In sections 61(1) and (2), 62(1) and (2), 63, 64(2) and (3) and 67(3)(c) of the Principal Act, for "debt or obligation" substitute "liability". (8) After section 64(4) of the Principal Act insert— "(5) This section is additional to, and does not derogate from, any rule of law under which recognition is or may be given to a limitation of liability of a partner in a partnership.". (9) In section 67(2) of the Principal Act, for "debts and obligations" substitute "liabilities". (10) In section 70(1)(b) of the Principal Act, for "debts or obligations" substitute "liabilities". 7. New section 64A inserted After section 64 of the Principal Act insert— "64A. Effect of sections 63 and 64 No implication is to be taken as arising from section 63 or 64 that a limited partner has any liability (or but for that section would have any liability) in connection with the conduct of a partnership's business outside the State that the limited partner would not have in connection with the conduct of a partnership's business within the State.". s. 7 -- 58 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 56 8. Regulations In section 80(1) of the Principal Act, for "Part" (where twice occurring) substitute "Act". ═══════════════ s. 8 -- 59 of 60 -- Victorian Legislation and Parliamentary Documents Act No. 99/2003 Partnership (Venture Capital Funds) Act 2003 57 ENDNOTES † Minister's second reading speech— Legislative Assembly: 30 October 2003 Legislative Council: 25 November 2003 The long title for the Bill for this Act was "to amend the Partnership Act 1958 to provide for the formation of incorporated limited partnerships and for other purposes." Endnotes -- 60 of 60 --