6Determining existence of partnership other than incorporated

6 Determining existence of partnership other than incorporated limited partnership (1) In determining whether a partnership (other than an incorporated limited partnership) exists regard is to be had to the following rules: (a) joint tenancy, tenancy in common, joint property, common property, or part ownership, does not of itself create a partnership as to anything held or owned, whether the tenants or owners do or do not share any profits made by the use of any thing held or owned; (b) the sharing of gross returns does not of itself create a partnership, whether the persons sharing the 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;

Part 2 Partnerships generally Division 1 Nature of Partnerships Partnership Act 1997 4 (c) the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but the receipt of a share of the profits of a business or of a payment contingent on or varying with the profits of a business does not of itself make the person a partner in the business, and in particular: (i) the receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make the person a partner in the business or liable as a partner; (ii) a contract for the remuneration of an employee or agent of a person engaged in a business by a share of the profits of the business does not of itself make the employee or agent a partner in the business or liable as a partner; (iii) a person being a spouse, de facto 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 does not of itself make the person a partner in the business or liable as a partner; (iv) the advance of money by way of loan to a person engaged, or about to engage, in a business on a contract with the person that the lender will receive a rate of interest varying with the profits or will receive a share of the profits arising from carrying on the business does not of itself make the lender a partner with the person or persons carrying on the business or liable as a partner; (v) 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. (2) A contract referred to in subsection (1)(c)(iv) must be in writing and signed by or on behalf of all the parties for that subparagraph to apply.

Part 2 Partnerships generally Division 2 Relationship of partners to persons dealing with them Partnership Act 1997 5