Partnership Act 1958 (Vic)
Version No. 084
Partnership Act 1958
No. 6330 of 1958
Version incorporating amendments as at
1 March 2020
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Short title and commencement
2Repeal
3Definitions
4Saving of rules of equity and common law
Part 2—Partnerships generally
Division 1—Nature of partnerships
5Definition of partnership
6Rules for determining existence of partnership
7Postponement of rights of person lending or selling in case of bankruptcy
8Meaning of firm
Division 2—Relationship of partners to persons dealing with them
9Power of partner to bind the firm
10Partners bound by acts on behalf of firm
11Partner using credit of firm for private purposes
12Effect of notice that firm will not be bound by acts of partner
13Liability of partners
14Liability of the firm for wrongs
15Misapplication of money or property
16Liability for wrongs joint and several
17Improper employment of trust property for partnership purposes
18Persons liable by holding out
19Admissions and representations of partners
20Notice to acting partner to be notice to the firm
21Liabilities of incoming and outgoing partners
22Revocation of continuing guaranty by change in firm
Division 3—Relationship between partners
23Variation by consent of terms of partnership
24Partnership property
25Property bought with partnership money
26Personal estate held as partnership property
27Procedure against partnership property for a partner's separate judgment debt
28Rules etc. of partners when not subject to special agreement
28ACredit law excluded matter
29Expulsion of partner
30Retirement from partnership at will
31Continuance of partnership on old terms
32Duty of partners to render accounts etc.
33Accountability of partners for private profits
34Duty of partner not to compete with firm
35Rights of assignee of share in partnership
Division 4—Dissolution of partnership
36Dissolution by expiration or notice
37Dissolution by death or bankruptcy or charge
38Dissolution by illegality of partnership
39Dissolution by the court
40Rights of persons dealing with firm against apparent members of firm
41Right of partners to notify dissolution
42Continuing authority of partners for purposes of winding up
43Rights of partners as to application of partnership property
44Apportionment of premium where partnership prematurely dissolved
45Rights where partnership dissolved for fraud or misrepresentation
46Share of profits made after dissolution
47Retiring or deceased partner's share to be a debt
48Rule for distribution of assets on final settlement of accounts
Part 3—Limited partnerships
Division 1—Preliminary
49Definitions and application of Parts 1 and 2
Division 2—Nature and formation of limited partnerships
50Composition of limited partnership
51Size of limited partnership
52How formed
Division 3—Registration of limited partnerships
54Application for registration
55Registration of limited partnership
56Changes in registered particulars
57Register of Limited Partnerships
58Certificates of registration etc.
Division 4—Limitation of liability of limited partners
60Liability of limited partner limited to amount shown in Register
61Change in liability of limited partner
62Change in status of partners
63Liability for business conducted outside the State
64Liability for limited partnerships formed under corresponding laws
64AEffect of sections 63 and 64
65Contribution towards discharge of debts etc.
66Limitation on liability may not be varied by partnership agreement etc.
Division 5—Other modifications of general law of partnership
67Limited partner not to take part in management of partnership
68Differences between partners
69Change in partners
Division 6—Dissolution and cessation of limited partnerships
70Dissolution not available in certain cases
71Cessation of limited partnerships
72Registration of dissolution or cessation of limited partnership
73Winding up by general partners
Division 7—Interests in partnerships
74Regulations relating to interests
Division 8—Miscellaneous provisions
75Identification of limited partnerships
76Registered office
77Service
78Entry in Register constitutes notice
79False and misleading statements
Part 4—General requirements
79ASigning of documents
79BLodgment of documents
79CMethod of lodgment
79DApproval of special lodging arrangements
79ERetention of records
79FPower of Director to refuse to register or reject documents
80Regulations
Part 5—Incorporated limited partnerships
Division 1—Preliminary
81Definitions
82Application of other provisions of this Act
Division 2—Nature and formation of incorporated limited partnerships
83Partnership is formed on registration
84Partnership is separate legal entity
85Partners in an incorporated limited partnership
86Partnership agreement
Division 3—Registration of incorporated limited partnerships
87Who may apply for registration?
88How is an application made?
89Registration of incorporated limited partnership
90Register of Incorporated Limited Partnerships
91Changes in registered particulars
92Certificates of registration etc.
94Acts preparatory to registration do not constitute partnership
Division 4—Powers of incorporated limited partnerships
95Powers of partnership
96Relationship of partners to others and between themselves
Division 5—Liability and powers of limited partners
97Limitation of liability of limited partners
98Limited partner not to take part in the management of the incorporated limited partnership
99Definitions, etc. applicable to section 98
100Differences between partners
101Change in partners
102Change in status of partners
103Liability in respect of conduct or acts outside the State
104Recognised incorporated limited partnerships under corresponding laws
105Effect of sections 103 and 104
Division 6—Winding up of incorporated limited partnership
106Definition
107Voluntary winding up
108Winding up on Director's certificate
109Review of certificate
110Procedure for winding up on certificate
111Distribution of assets on winding up required on Director's certificate
112Application of Corporations Act to winding up
113Director to be notified of winding up
114Cancellation of incorporation
Division 7—Miscellaneous provisions
115Execution of documents
116Entitlement to make assumptions
117Assumptions that can be made under section 116
118Identification of incorporated limited partnerships
119Registered office
120Lodgment of certain documents with the Director
121Service
122Entry in Register constitutes notice
123False and misleading statements
124Duty to furnish information
125Confidentiality
126Offences by partnerships and partners
127Delegation
128Regulations
Schedule
═══════════════
Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 084
Partnership Act 1958
No. 6330 of 1958
Version incorporating amendments as at
1 March 2020
An Act to consolidate the Law relating to Partnership.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
Part 1—Preliminary
1Short title and commencement
This Act may be cited as the Partnership Act 1958 and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
2Repeal
(1)The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.
(2)Except as in this Act expressly or by necessary implication provided—
(a)all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under that Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if that Act had not been so repealed;
(b)in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any order appointment notice consent agreement liability or right made effected issued granted given accrued incurred or acquired or existing or continuing by or under that Act before the commencement of this Act.
3Definitions
(1)In this Act unless inconsistent with the context or subject-matter—
court includes every court having jurisdiction in the case;
business includes every trade occupation or profession.
domestic partner of a person means—
(a)a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i)for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
spouse of a person means a person to whom the person is married;
(2)For the purposes of the definition of domestic partner in subsection (1)—
(a)registered relationship has the same meaning as in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
(c)a person is not a domestic partner of another person only because they are co-tenants.
4Saving of rules of equity and common law
The rules of equity and of common law applicable to partnership shall continue in force except so far as they are inconsistent with the express provisions of this Act.
Part 2—Partnerships generally
Division 1—Nature of partnerships
5Definition of partnership
(1)Partnership is the relation which subsists between persons carrying on a business in common with a view of profit and includes an incorporated limited partnership within the meaning of Part 5.
(1A)A reference in the following sections to a partnership includes a reference to a partnership formed in accordance with a law of another State, a Territory or another country or jurisdiction, whether or not under that law the liability of any partner for the liabilities of the partnership 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).
(2)But the relation between members of any company or association (other than, for the purposes of the sections specified in subsection (1A), a partnership which under the law of the place where it is formed is incorporated or is otherwise a separate legal entity) which is—
(a)registered as a company under any Act for the time being in force and relating to the registration constitution or incorporation of companies; or
(b)formed or incorporated by or in pursuance of any Act or letters patent or Royal Charter—
is not a partnership within the meaning of this Act.
(3)A reference in this Act to a firm includes a reference to an incorporated limited partnership within the meaning of Part 5.
6Rules for determining existence of partnership
In determining whether a partnership does or does not exist regard shall be had to the following rules—
(1)Joint tenancy tenancy in common joint property common property or part ownership does not of itself create a partnership as to anything so held or owned whether the tenants or owners do or do not share any profits made by the use thereof.
(2)The sharing of gross returns does not of itself create a partnership whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived.
(3)The receipt by a person of a share of the profits of a business is prima facie evidence that that person is a partner in the business, but the receipt of such a share or of a payment contingent on or varying with the profits of a business does not of itself make that person a partner in the business and in particular—
(a)the receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make that person a partner in the business or liable as such;
(b)a contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such;
(c)a person being the spouse, domestic partner or child of a deceased partner and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner is not by reason only of such receipt a partner in the business or liable as such;
(d)the advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits or shall receive a share of the profits arising from carrying on the business does not of itself make the lender a partner with the person or persons carrying on the business or liable as such: Provided that the contract is in writing and signed by or on behalf of all the parties thereto;
(e)a person receiving by way of annuity or otherwise a portion of the profits of a business in consideration of the sale by that person of the goodwill of the business is not by reason only of such receipt a partner in the business or liable as such.
7Postponement of rights of person lending or selling in case of bankruptcy[1]
In the event of any person to whom money has been advanced by way of loan upon such a contract as is mentioned in the last preceding section or of any buyer of a goodwill in consideration of a share of the profits of the business being adjudged a bankrupt entering into an arrangement to pay his creditors less than One hundred cents in the dollar or dying in insolvent circumstances, the lender of the loan shall not be entitled to recover anything in respect of his loan and the seller of the goodwill shall not be entitled to recover anything in respect of the share of profits contracted for until the claims of the other creditors of the borrower or buyer for valuable consideration in money or money's worth have been satisfied.
8Meaning of firm
Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm and the name under which their business is carried on is called the firm-name.
Division 2—Relationship of partners to persons dealing with them
9Power of partner to bind the firm
Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.
10Partners bound by acts on behalf of firm
An act or instrument relating to the business of the firm and done or executed in the firm-name or in any other manner showing an intention to bind the firm by any person thereto authorized whether a partner or not is binding on the firm and all the partners.
This section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments.
11Partner using credit of firm for private purposes
Where one partner pledges the credit of the firm for a purpose apparently not connected with the firm's ordinary course of business the firm is not bound unless he is in fact specially authorized by the other partners, but this section does not affect any personal liability incurred by an individual partner.
12Effect of notice that firm will not be bound by acts of partner
If it has been agreed between the partners that any restriction shall be placed on the power of any one or more of them to bind the firm no act done in contravention of the agreement is binding on the firm with respect to persons having notice of the agreement.
13Liability of partners
Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner, and after his death his estate is also severally liable in a due course of administration for such debts and obligations so far as they remain unsatisfied but subject to the prior payment of his separate debts.
14Liability of the firm for wrongs
(1)Subject to subsection (2), where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his or her co-partners loss or injury is caused to any person not being a partner in the firm or any penalty is incurred the firm is liable therefor to the same extent as the partner so acting or omitting to act.
(2)For the purposes of subsection (1), a partner who commits a wrongful act or omission as a director of a body corporate, within the meaning of the Corporations Act, is not to be taken to be acting in the ordinary course of the business of the firm or with the authority of his or her co-partners only because—
(a)the partner obtained the agreement or authority of his or her co-partners, or some of them, to be appointed or to act as a director; or
(b)remuneration that the partner receives for acting as a director of a body corporate forms part of the income of the firm; or
(c)any co-partner is also a director of that or any other body corporate.
15Misapplication of money or property
In the following cases, namely—
(a)where one partner acting within the scope of his apparent authority receives the money or property of a third person and misapplies it; and
(b)where a firm in the course of its business receives money or property of a third person and the money or property so received is misapplied by one or more of the partners while it is in the custody of the firm—
the firm is liable to make good the loss.
16Liability for wrongs joint and several
Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein becomes liable under either of the last two preceding sections.
17Improper employment of trust property for partnership purposes
If a partner being a trustee improperly employs trust-property in the business or on the account of the partnership no other partner is liable for the trust-property to the persons beneficially interested therein:
Provided as follows—
(1)This section shall not affect any liability incurred by any partner by reason of his having notice of a breach of trust; and
(2)Nothing in this section shall prevent trust-money from being followed and recovered from the firm if still in its possession or under its control.
18Persons liable by holding out
(1)Every one who by words spoken or written or by conduct represents himself or who knowingly suffers himself to be represented as a partner in a particular firm is liable as a partner to any one who has on the faith of any such representation given credit to the firm whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge of the apparent partner making the representation or suffering it to be made.
(2)Where after a partner's death the partnership business is continued in the old firm-name the continued use of that name or of the deceased partner's name as part thereof shall not of itself make his executors or administrators estate or effects liable for any partnership debts contracted after his death.
19Admissions and representations of partners
An admission or representation made by any partner concerning the partnership affairs and in the ordinary course of its business is evidence against the firm.
20Notice to acting partner to be notice to the firm
Notice to any partner who habitually acts in the partnership business of any matter relating to partnership affairs operates as notice to the firm except in the case of a fraud on the firm committed by or with the consent of that partner.
21Liabilities of incoming and outgoing partners
(1)A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.
(2)A partner who retires from a firm does not thereby cease to be liable for partnership debts or obligations incurred before his retirement.
(3)A retiring partner may be discharged from any existing liabilities by an agreement to that effect between himself and the members of the firm as newly constituted and the creditors and this agreement may be either express or inferred as a fact from the course of dealing between the creditors and the firm as newly constituted.
22Revocation of continuing guaranty by change in firm
A continuing guaranty given either to a firm or to a third person in respect of the transactions of a firm is in the absence of agreement to the contrary revoked as to future transactions by any change in the constitution of the firm to which or of the firm in respect of the transactions of which the guaranty was given.
Division 3—Relationship between partners
23Variation by consent of terms of partnership
The mutual rights and duties of partners whether ascertained by agreement or defined by this Act may be varied by the consent of all the partners, and such consent may be either express or inferred from a course of dealing.
24Partnership property
(1)All property and rights and interests in property originally brought into the partnership stock or acquired whether by purchase or otherwise on account of the firm or for the purposes and in the course of the partnership business are called in this Act partnership property and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement.
(2)The legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof and the general rules of law thereto applicable but in trust so far as necessary for the persons beneficially interested in the land under this section.
(3)Where co-owners of an estate or interest in any land not being itself partnership property are partners as to profits made by the use of that land or estate, and purchase other land or estate out of the profits to be used in like manner, the land or estate so purchased belongs to them in the absence of an agreement to the contrary not as partners but as co-owners for the same respective estates and interests as are held by them in the land or estate first mentioned at the date of the purchase.
25Property bought with partnership money
Unless the contrary intention appears property bought with money belonging to the firm is deemed to have been bought on the account of the firm.
26Personal estate held as partnership property
Where land or any interest therein has become partnership property it shall unless the contrary intention appears be treated as between the partners (including the representatives of a deceased partner) as personal estate.
27Procedure against partnership property for a partner's separate judgment debt
(1)A writ of execution shall not issue against any partnership property except on a judgment against the firm.
(2)The Supreme Court or the county court may on the application of any judgment creditor of a partner make an order charging that partner's interest in the partnership property and profits with payment of the amount of the judgment debt and interest thereon, and may by the same or a subsequent order appoint a receiver of that partner's share of profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct all accounts and inquiries and give all other orders and directions which might have been directed or given if the charge had been made in favour of the judgment creditor by the partner, or which the circumstances of the case may require.
(3)The other partner or partners shall be at liberty at any time to redeem the interest charged or in case of a sale being directed to purchase the same.
28Rules etc. of partners when not subject to special agreement
The interest of partners in the partnership property and their rights and duties in relation to the partnership shall be determined subject to any agreement express or implied between the partners by the following rules:
(1)All the partners are entitled to share equally in the capital and profits of the business and must contribute equally towards the losses whether of capital or otherwise sustained by the firm.
(2)The firm must indemnify every partner in respect of payments made and personal liabilities incurred by him—
(a)in the ordinary and proper conduct of the business of the firm; or
(b)in or about anything necessarily done for the preservation of the business or property of the firm.
(3)A partner making for the purpose of the partnership any actual payment or advance beyond the amount of capital which he has agreed to subscribe is entitled to interest at the rate of Seven per centum per annum from the date of the payment or advance.
(4)A partner is not entitled before the ascertainment of profits to interest on the capital subscribed by him.
(5)Every partner may take part in the management of the partnership business.
(6)No partner shall be entitled to remuneration for acting in the partnership business.
(7)No person may be introduced as a partner without the consent of all existing partners.
(8)Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners but no change may be made in the nature of the partnership business without the consent of all existing partners.
(9)The partnership books are to be kept at the place of business of the partnership (or the principal place if there is more than one) and every partner may when he thinks fit have access to and inspect and copy any of them.
28ACredit law excluded matter
For the purposes of section 24 of the National Consumer Credit Protection Act 2009 of the Commonwealth, the matter provided for in section 28(3) is declared to be excluded matter in relation to the whole of the National Consumer Credit Protection Act 2009 of the Commonwealth.
29Expulsion of partner
No majority of the partners can expel any partner unless a power to do so has been conferred by express agreement between the partners.
30Retirement from partnership at will
(1)Where no fixed term has been agreed upon for the duration of the partnership any partner may determine the partnership at any time on giving notice of his intention so to do to all the other partners.
(2)Where the partnership has originally been constituted by deed a notice in writing signed by the partner giving it shall be sufficient for this purpose.
31Continuance of partnership on old terms
(1)Where a partnership entered into for a fixed term is continued after the term has expired and without any express new agreement the rights and duties of the partners remain the same as they were at the expiration of the term so far as is consistent with the incidents of a partnership at will.
(2)A continuance of the business by the partners or such of them as habitually acted therein during the term without any settlement or liquidation of the partnership affairs is presumed to be a continuance of the partnership.
32Duty of partners to render accounts etc.
Partners are bound to render true accounts and full information of all things affecting the partnership to any partner or his legal representative.
33Accountability of partners for private profits
(1)Every partner must account to the firm for any benefit derived by him without the consent of the other partners from any transaction concerning the partnership or from any use by him of the partnership property name or business connexion.
(2)This section applies also to transactions undertaken after a partnership has been dissolved by the death of a partner and before the affairs thereof have been completely wound up either by any surviving partner or by the representatives of the deceased partner.
34Duty of partner not to compete with firm
If a partner without the consent of the other partners carries on any business of the same nature as and competing with that of the firm he must account for and pay over to the firm all profits made by him in that business.
35Rights of assignee of share in partnership
(1)An assignment by any partner of his share in the partnership either absolute or by way of mortgage or redeemable charge does not as against the other partners entitle the assignee during the continuance of the partnership to interfere in the management or administration of the partnership business or affairs or to require any accounts of the partnership transactions or to inspect the partnership books but entitles the assignee only to receive the share of profits to which the assigning partner would otherwise be entitled and the assignee must accept the account of profits agreed to by the partners.
(2)In the case of a dissolution of the partnership whether as respects all the partners or as respects the assigning partner the assignee is entitled to receive the share of the partnership assets to which the assigning partner is entitled as between himself and the other partners and for the purpose of ascertaining that share to an account as from the date of the dissolution.
Division 4—Dissolution of partnership
36Dissolution by expiration or notice
Subject to any agreement between the partners a partnership is dissolved—
(a)if entered into for a fixed term by the expiration of that term;
(b)if entered into for a single adventure or undertaking by the termination of that adventure or undertaking;
(c)if entered into for an undefined time by any partner giving notice to the other or others of his intention to dissolve the partnership.
In the last-mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution or if no date is so mentioned as from the date of the communication of the notice.
37Dissolution by death or bankruptcy or charge[2]
(1)Subject to any agreement between the partners every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner.
(2)A partnership may at the option of the other partners be dissolved if any partner suffers his share of the partnership property to be charged under this Act for his separate debt.
38Dissolution by illegality of partnership
A partnership is in every case dissolved by the happening of any event which makes it unlawful for the business of the firm to be carried on or for the members of the firm to carry it on in partnership.
39Dissolution by the court
On application by a partner the court may decree a dissolution of the partnership in any of the following cases—
(a)when a partner is found to be mentally ill, in which case the application may be made as well on behalf of that partner by his or her guardian or administrator if appointed in a guardianship order or an administration order made under the Guardianship and Administration Act 2019 or other person having title to intervene as by any other partner;
(b)when a partner other than the partner suing becomes in any other way permanently incapable of performing his part of the partnership contract;
(c)when a partner other than the partner suing has been guilty of such conduct as in the opinion of the court regard being had to the nature of the business is calculated to prejudicially affect the carrying on of the business;
(d)when a partner other than the partner suing wilfully or persistently commits a breach of the partnership agreement or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable for the other partner or partners to carry on the business in partnership with him;
(e)when the business of the partnership can only be carried on at a loss;
(f)whenever in any case circumstances have arisen which in the opinion of the court render it just and equitable that the partnership be dissolved.
40Rights of persons dealing with firm against apparent members of firm
(1)Where a person deals with a firm after a change in its constitution he is entitled to treat all apparent members of the old firm as still being members of the firm until he has notice of the change.
(2)An advertisement in the Government Gazette and in at least one newspaper circulating in each district in which the firm carries on business as to a firm whose principal place of business is in Victoria shall be notice as to persons who had not dealings with the firm before the date of the dissolution or change so advertised.
(3)The estate of a partner who dies or who becomes bankrupt or of a partner who not having been known to the person dealing with the firm to be a partner retires from the firm is not liable for partnership debts contracted after the date of the death bankruptcy or retirement respectively.
41Right of partners to notify dissolution
On the dissolution of a partnership or retirement of a partner any partner may but one of such partners shall publicly notify the same in the Government Gazette and in at least one newspaper circulating in each district in which the firm carries on business and may require the other partner or partners to concur for that purpose in all necessary or proper acts (if any) which cannot be done without his or their concurrence.
42Continuing authority of partners for purposes of winding up
After the dissolution of a partnership the authority of each partner to bind the firm and the other rights and obligations of the partners continue notwithstanding the dissolution so far as may be necessary to wind up the affairs of the partnership and to complete transactions begun but unfinished at the time of the dissolution but not otherwise:
Provided that the firm is in no case bound by the acts of a partner who has become bankrupt but this proviso does not affect the liability of any person who has after the bankruptcy represented himself or knowingly suffered himself to be represented as a partner of the bankrupt.
43Rights of partners as to application of partnership property
On the dissolution of a partnership every partner is entitled as against the other partners in the firm and all persons claiming through them in respect of their interests as partners to have the property of the partnership applied in payment of the debts and liabilities of the firm and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm, and for that purpose any partner or his representatives may on the termination of the partnership apply to the court to wind up the business and affairs of the firm.
44Apportionment of premium where partnership prematurely dissolved
Where one partner has paid a premium to another on entering into a partnership for a fixed term and the partnership is dissolved before the expiration of that term otherwise than by the death of a partner the court may order the repayment of the premium or of such part thereof as it thinks just having regard to the terms of the partnership contract and to the length of time during which the partnership has continued; unless—
(a)the dissolution is in the judgment of the court wholly or chiefly due to the misconduct of the partner who paid the premium; or
(b)the partnership has been dissolved by an agreement containing no provision for a return of any part of the premium.
45Rights where partnership dissolved for fraud or misrepresentation
Where a partnership contract is rescinded on the ground of the fraud or misrepresentation of one of the parties thereto the party entitled to rescind is without prejudice to any other right entitled—
(a)to a lien on or right of retention of the surplus of the partnership assets after satisfying the partnership liabilities for any sum of money paid by him for the purchase of a share in the partnership and for any capital contributed by him;
(b)to stand in the place of the creditors of the firm for any payments made by him in respect of the partnership liabilities; and
(c)to be indemnified by the person guilty of the fraud or making the representation against all the debts and liabilities of the firm.
46Share of profits made after dissolution
Where any member of a firm has died or otherwise ceased to be a partner and the surviving or continuing partners carry on the business of the firm with its capital or assets without any final settlement of accounts as between the firm and the outgoing partner or his estate then in the absence of any agreement to the contrary the outgoing partner or his estate is entitled at the option of himself or his representatives to such share of the profits made since the dissolution as the court may find to be attributable to the use of his share of the partnership assets or to interest at the rate of seven per centum per annum on the amount of his share of the partnership assets:
Provided that where by the partnership contract an option is given to surviving or continuing partners to purchase the interest of a deceased or outgoing partner and that option is duly exercised the estate of the deceased partner or the outgoing partner or his estate as the case may be is not entitled to any further or other share of profits, but if any partner assuming to act in exercise of the option does not in all material respects comply with the terms thereof he is liable to account under the foregoing provisions of this section.
47Retiring or deceased partner's share to be a debt
Subject to any agreement between the partners the amount due from surviving or continuing partners to an outgoing partner or the representatives of a deceased partner in respect of the outgoing or deceased partner's share is a debt accruing at the date of the dissolution or death.
48Rule for distribution of assets on final settlement of accounts
In settling accounts between the partners after a dissolution of partnership the following rules shall subject to any agreement be observed—
(a)losses including losses and deficiencies of capital shall be paid first out of profits next out of capital and lastly if necessary by the partners individually in the proportion in which they were entitled to share profits;
(b)the assets of the firm including the sums (if any) contributed by the partners to make up losses or deficiencies of capital shall be applied in the following manner and order—
(i)in paying the debts and liabilities of the firm to persons who are not partners therein;
(ii)in paying to each partner rateably what is due from the firm to him for advances as distinguished from capital;
(iii)in paying to each partner rateably what is due from the firm to him in respect of capital;
(iv)the ultimate residue (if any) shall be divided among the partners in the proportion in which profits are divisible.
Part 3—Limited partnerships
Division 1—Preliminary
49Definitions and application of Parts 1 and 2
(1)In this Part—
* * * * *
* * * * *
Directormeans Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;
general partner means a partner in a limited partnership who is not a limited partner;
liability includes any debt, obligation or liability of any kind, wherever and however incurred;
limited partner means a partner in a limited partnership whose liability for the liabilities of the partnership is limited in accordance with this Part;
limited partnership means a partnership formed in accordance with this Part;
Register means the Register of Limited Partnerships kept under this Part.
(2)If there is in force an agreement or arrangement with the Australian Securities and Investments Commission of a kind referred to in section 11(8) of the ASIC Act for the performance of the functions and exercise of the powers of the Director by the Commission, a reference in this Part to the Director is taken to be a reference to the Commission.
(3)Parts 1 and 2 of this Act apply to limited partnerships, except as provided by this Part.
Division 2—Nature and formation of limited partnerships
50Composition of limited partnership
(1)A limited partnership is a partnership consisting of—
(a)at least one general partner; and
(b)at least one limited partner.
(2)A body corporate may be a general partner or a limited partner.
51Size of limited partnership
(1)A limited partnership may have any number of limited partners.
(2)The number of general partners must not (if the partnership consisted only of those general partners) exceed—
(a)20; or
(b)if the partnership is of a particular kind in respect of which a higher number applies in accordance with section 115(2) of the Corporations Act—that higher number.
(3)For the purposes of subsection (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 partnership whose liability is so limited.
52How formed
A limited partnership is formed on the registration of the partnership under this Part as a limited partnership.
Division 3—Registration of limited partnerships
54Application for registration
(1)An application for the registration as a limited partnership of a 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 in the form approved by the Director and must contain the following particulars—
(a)the firm-name;
(b)particulars of the order under Division 2 designating the partnership;
(c)the full address in Victoria of the office or, if there is more than one office, the principal office, of the firm (to be called the registered office of the partnership);
(d)the full name of each partner 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;
(e)the full address of each 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)a statement in relation to each partner as to whether that partner is a general partner or a limited partner;
(fa)a statement in relation to each partner that is a partnership to the effect that the partner is a partnership;
(g)a statement in relation to each limited partner to the effect that he or she, or it, is a limited partner whose liability to contribute is limited to the extent of the amount specified in the statement (being the amount of any capital, or the value of any property, that the limited partner has agreed to contribute to the partnership);
(h)a statement, in relation to each limited partner, of the amount of any capital and the value of any property (or, in the case of a limited partner that is a partnership, the aggregate amounts of capital or values of property) that the partner has agreed to contribute to the partnership, showing separately the amount or value actually contributed and the amount or value outstanding (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);
(i)such other particulars as are required by the regulations or by the approved form of statement.
55Registration of limited partnership
(1)If an application for registration of a limited partnership has been made in accordance with section 54, the Director must register the limited partnership.
(2)However, except with the consent of the Minister, the Director must not register a limited partnership if the Director is of the opinion that the firm-name—
(a)is undesirable;
(b)is likely to be confused with or mistaken for—
(i)a name under which another body is incorporated under the Associations Incorporation Act 1981; or
(ii)a business name registered to another body under the Business Names Registration Act 2011 of the Commonwealth; or
(iii)the firm-name of another body that is registered as a limited partnership or an incorporated limited partnership under this Act; or
(iv)the corporate name of another body that is registered as a co‑operative under the Co‑operatives National Law (Victoria); or
(v)a name that is reserved or registered under the Corporations Act for another body.
(3)Registration is effected by recording in the Register the particulars in the statement lodged with the Director.
56Changes in registered particulars
(1)If any change occurs in relation to the registered particulars of a 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—
(a)by all the general partners, or by a general partner authorised by all the general partners for the purposes of this section; and
(b)if the change relates to the admission of a limited partner or a change in the liability of a limited partner to contribute, by the limited partner concerned 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.
(3)The statement must be in the form approved by the Director and contain the particulars required by the regulations or the approved form of statement.
(4)If the statement is duly lodged, the Director must record the change in the Register as soon as possible, unless as a result of the change the partnership is not eligible to be registered as a limited partnership.
(5)If subsection (1) is not complied with, each general partner of the limited partnership is guilty of an offence.
Penalty:10 penalty units.
57Register of Limited Partnerships
(1)The Director must keep a register of limited partnerships registered under this Part (to be called the Register of 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 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.
58Certificates of registration etc.
(1)The Director, at the time of registering a limited partnership or of recording a change in the composition of a limited partnership, must issue to the general partners a certificate as to the formation and composition at that time of the limited partnership.
(2)The Director may, on application, issue to the applicant a certificate as to the formation and composition of a limited partnership or as to any other particulars recorded in the Register.
(3)A certificate under this section is to be in such form as the Director thinks fit.
(4)A certificate under this section—
(a)as to the formation of a limited partnership, is conclusive evidence that the limited partnership was formed on the date of registration referred to in the certificate; and
(b)as to the composition of a limited partnership, is (unless the contrary is established) conclusive evidence that the partnership consisted at the relevant time of the general partners and limited partners named in the certificate; and
(c)as to any other particular of a limited partnership recorded in the Register, is (unless the contrary is established) conclusive evidence of that particular.
* * * * *
Division 4—Limitation of liability of limited partners
60Liability of limited partner limited to amount shown in Register
(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 relation to the limited partner in the Register as the extent to which the limited partner is liable to contribute.
(2)If a limited partner makes a contribution towards the amount of any capital or the value of any property that the limited partner has agreed to contribute to the limited partnership, the liability of the limited partner is reduced to such part of the amount shown in the Register as remains outstanding.
(3)If a partnership (the investing partnership) is a limited partner in a limited partnership (the principal partnership), a partner in the investing partnership has no separate liability to contribute to the liabilities of the principal partnership, but nothing in this subsection affects any liability of the investing partnership as a limited partner to contribute to those liabilities.
61Change in liability of limited partner
(1)Any reduction in the liability of a limited partner caused by a reduction in the relevant amount shown in the Register in relation to the partner does not extend to any liability of the limited partnership that arose before the reduction is recorded in the Register.
(2)Any increase in the liability of a limited partner caused by an increase in the relevant amount shown in the Register in relation to the partner extends to any liability of the limited partnership that arose before the increase is recorded in the Register.
62Change in status of partners
(1)If a general partner becomes a limited partner, the limitation on liability does not extend to 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 limitation on liability no longer extends to any liability of the limited partnership that arose before the partner became a general partner.
63Liability for business conducted outside the State
The limitation on the liability of a limited partner extends to any liability incurred in connection with the conduct of the partnership's business outside the State.
64Liability for limited partnerships formed under corresponding laws
(1)In this section—
corresponding law means a law of another State, a Territory or another country that is declared by Order of the Governor in Council published in the Government Gazette to be a corresponding law for the purposes of this Part;
recognised limited partnership means a partnership formed in accordance with 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.
(3)The law of 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 under that law the limitation of liability of limited partners in a limited partnership formed in accordance with this Part and registered or otherwise recognised under that law extends to any liability incurred in connection with the conduct of the partnership's business in that State or Territory.
(4)The law of another country may not be declared to be a corresponding law unless the Minister has certified to the Governor in Council that the law provides for the limitation of liability for partners in certain partnerships.
(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.
64AEffect 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.
65Contribution towards discharge of debts etc.
If the whole or any part of a contribution made by a limited partner is received back by the limited partner, the liability of the limited partner is restored accordingly.
66Limitation on liability may not be varied by partnership agreement etc.
The provisions of this Part relating to the limitation on the liability of a limited partner may not be varied by the partnership agreement or the consent of the partners.
Division 5—Other modifications of general law of partnership
67Limited partner not to take part in management of partnership
(1)A limited partner must not take part in the management of the business of the limited partnership and does not have power to bind the limited partnership.
(2)If a limited partner takes part in the management of the business of the limited 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.
(3)A limited partner is not to be regarded as taking part in the management of the business of the limited partnership merely because the limited partner—
(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 limited 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 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 by any other limited partner, for the purpose of enforcing rights, or safeguarding interests as a limited partner; or
(e)if authorised by the partnership agreement, gives advice or expresses opinions at general meetings of all the partners; or
(f)exercises any power conferred on the limited partner by subsection (4).
(4)A limited partner or a person authorised by the limited partner may at any time—
(a)have access to and inspect the books of the partnership and copy any of them; and
(b)examine the state and prospects of the business of the partnership and advise and consult with other partners in relation to such matters.
(5)The provisions of this section may not be varied by the partnership agreement or the consent of the partners.
68Differences between partners
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Partnership Act 1958 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Decimal Currency Act 1965, No. 7315/1965
Assent Date: 30.11.65 Commencement Date: 30.11.65 (Appointed day was 14.2.66) CurrentState: All of Act in operation
Supreme Court Act 1986, No. 110/1986
Assent Date: 16.12.86 Commencement Date: 1.1.87: s. 2 CurrentState: All of Act in operation
Equal Opportunity (Amendment) Act 1987, No. 46/1987
Assent Date: 25.8.87 Commencement Date: 1.12.87: Government Gazette 21.10.87 p. 2777 CurrentState: All of Act in operation
State Trust Corporation of Victoria Act 1987, No. 55/1987
Assent Date: 20.10.87 Commencement Date: 2.11.87: Government Gazette 28.10.87 p. 2925 CurrentState: All of Act in operation
County Court (Amendment) Act 1989, No. 19/1989
Assent Date: 16.5.89 Commencement Date: 1.8.89: Government Gazette 26.7.89 p. 1858 CurrentState: All of Act in operation
Partnership (Limited Partnerships) Act 1992, No. 43/1992
Assent Date: 23.6.92 Commencement Date: 12.8.92: Government Gazette 12.8.92 p. 2178 CurrentState: All of Act in operation
Legal Practice Act 1996, No. 35/1996
Assent Date: 6.11.96 Commencement Date: S. 449 on 1.1.97: s. 2(3) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998
Assent Date: 2.6.98 Commencement Date: S. 311(Sch. 1 item 71) on 1.7.98: Government Gazette 18.6.98 p. 1512 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Business Registration Acts (Amendment) Act 2000, No. 35/2000
Assent Date: 6.6.00 Commencement Date: Ss 35, 36, 38 on 19.6.00: Government Gazette 15.6.00 p. 1248; s. 37 on 1.7.02: s. 2(2) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Statute Law Amendment (Relationships) Act 2001, No. 27/2001
Assent Date: 12.6.01 Commencement Date: S. 8(Sch. 6 item 4) on 28.6.01: Government Gazette 28.6.01 p. 1428 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Corporations (Consequential Amendments) Act 2001, No. 44/2001
Assent Date: 27.6.01 Commencement Date: S. 3(Sch. item 87) on 15.7.01: s. 2 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Corporations (Financial Services Reform Amendments) Act 2002, No. 9/2002
Assent Date: 23.4.02 Commencement Date: S. 3(Sch. item 13) on 23.4.02: s. 2 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Fair Trading (Amendment) Act 2003, No. 30/2003
Assent Date: 27.5.03 Commencement Date: Ss 88, 89 on 28.5.03: s. 2(1) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Partnership (Venture Capital Funds) Act 2003, No. 99/2003
Assent Date: 2.12.03 Commencement Date: 3.12.03: s. 2 CurrentState: All of Act in operation
Public Administration Act 2004, No. 108/2004
Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 151) on 5.4.05: Government Gazette 31.3.05 p. 602 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Fair Trading and Consumer Acts Further Amendment Act 2008, No. 2/2008
Assent Date: 11.2.08 Commencement Date: Ss 23–26 on 12.2.08: s. 2(1) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Relationships Act 2008, No. 12/2008
Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 44) on 1.12.08: s. 2(2) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Consumer Affairs Legislation Amendment Act 2010, No. 1/2010
Assent Date: 9.2.10 Commencement Date: S. 98 on 1.8.10: Government Gazette 22.7.10 p. 1628 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Credit (Commonwealth Powers) Act 2010, No. 11/2010
Assent Date: 30.3.10 Commencement Date: S. 57 on 1.7.10: Government Gazette 24.6.10 p. 1273 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Subordinate Legislation Amendment Act 2010, No. 78/2010
Assent Date: 19.10.10 Commencement Date: S. 24(Sch. 1 item 22) on 1.1.11: s. 2(1) CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Business Names (Commonwealth Powers) Act 2011, No. 79/2011
Assent Date: 21.12.11 Commencement Date: S. 35 on 28.5.12: Special Gazette (No. 151) 8.5.12 p. 1 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Australian Consumer Law and Fair Trading Act 2012, No. 21/2012
Assent Date: 8.5.12 Commencement Date: S. 239(Sch. 6 item 34) on 1.7.12: Special Gazette (No. 214) 28.6.12 p. 1 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Co-operatives National Law Application Act 2013, No. 9/2013
Assent Date: 13.3.13 Commencement Date: S. 42(Sch. 2 item 13) on 3.3.14: Special Gazette (No. 46) 18.2.14 p. 1 CurrentState: This information relates only to the provision/s amending the Partnership Act 1958
Guardianship and Administration Act 2019, No. 13/2019
Assent Date: 4.6.19 Commencement Date: S. 221(Sch. 1 item 36) on 1.3.20: s. 2(2) Current State: This information relates only to the provision/s amending the Partnership Act 1958
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.
4 Explanatory details
[1] S. 7: See also Commonwealth Bankruptcy Act 1966.
[2] S. 37: As to the application of the joint and separate estates of partners in bankruptcy proceedings, see Commonwealth Bankruptcy Act 1966, No. 33/1966 section 110.
0
0
0