19.(1) In this Part
(a) "creditor" means a person to whom an obligation is owed;
(b) "intent to defraud" means an intention of a transferor wilfully to defeat an obligation owed to a creditor;
(i) means an obligation or liability that existed on or before the date of a relevant disposition and of which the transferor had notice, and
(ii) includes a liability contingent upon an obligation or liability referred to in sub-paragraph (i)
(d) "relevant disposition" means a disposition to which section 20 applies;
(e) "transferor" means the person who as owner of property or as the holder of a power in that behalf directly or indirectly makes a relevant disposition or causes it to be made;
(f) "transferee" means the person to whom a relevant disposition is made and includes any successor in title;
(g) "undervalue" in relation to a disposition of property means;
(i) the provision of no consideration for the disposition; or
(ii) a consideration for the disposition the value of which in money or money's worth is significantly less than the value of the property that is the subject of the disposition.
(2) This Part applies to any action or proceedings relating to the disposition of property, whether the property is situate within or outside Barbados, if
(a) the disposition takes place after the commencement of this Act; or
(b) the disposition took place before the commencement of this Act but the proceedings were not begun within eighteen months after the commencement of this Act.
Fraudulent disposition voidable
20.(1) Subject to this Act, every disposition of property made with an intent to defraud or at an undervalue shall be voidable at the instance of a creditor thereby prejudiced.
(2) The burden of establishing an intent to defraud for the purposes of this Act shall be upon the creditor seeking to set aside the disposition.
(3) No action or proceedings shall be commenced pursuant to this Act later than three years after the date of the relevant disposition.
21. In the event that any disposition is set aside pursuant to this Act, then
(a) if the court is satisfied that the transferee has not acted in bad faith:
(i) the transferee shall have a first and paramount charge over the property, the subject of the disposition, of an amount equal to the entire costs properly incurred by the transferee in the defence of the action or proceedings to set aside (and not merely such costs as might otherwise be allowed by the court), and
(ii) the relevant disposition shall be set aside subject to the proper fees, costs, pre-existing rights, claims and interests of the transferee (and of any predecessor transferee who has not acted in bad faith); and
(b) if the court is satisfied that a beneficiary of a trust has not acted in bad faith the disposition shall only be set aside subject to the right of such beneficiary to retain any distribution made consequent upon the prior exercise of a trust, power or discretion vested in the trustee of such trust, or any other person, and otherwise properly exercised.
22. A disposition shall be set aside pursuant to this Act only to the extent necessary to satisfy the obligation to a creditor at whose instance the disposition has been set aside together with such costs as the court may allow.
23. Nothing in this Act shall validate any disposition of property which is neither owned by the transferor nor the subject of a power in that behalf vested in the transferor, and this Act does not affect the recognition of foreign laws in determining whether the transferor is the owner of such property or the holder of such power.
24. Section 193 of the Property Act does not apply to international trusts.
25. The fact that a settlor of a trust is a beneficiary under the trust or a trustee thereof does not per se constitute an intent to defraud.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances