Wealth Management Services Ltd.- Antigua & Barbuda Managment

LLC ACT III

Part I

Part II

Part III - Relationship of Limited Liability Company and Members to Third Persons

24. Liability to third parties
25. Limited liability company as a separate legal entity
26. Limited liability company property
27. Rights of judgment creditors of a member
28. Fraudulent conveyance
29. Statute of Elizabeth
30. Foreign judgment not enforceable
31. Parties to actions
32. Limited liability company as proper party to action

PART III – RELATIONSHIP OF LIMITED LIABILITY COMPANY AND MEMBERS TO THIRD PERSONS

24. Liability to third parties

(1) The limited liability company is solely liable for its own debts, obligations and liabilities.
(2) Notwithstanding any other law, unless liability for limited liability company debts, obligations or liabilities has been assumed by the person against whom liability is asserted pursuant to subsection
(3), no manager, officer, member, employee or agent of a limited liability company, or other person, is liable for
- (a) the limited liability company’s debts, obligations or liabilities, whether arising in contract, tort or otherwise, solely by reason of being a manager, officer, member, employee or agent of the limited liability company, or
- (b) the acts or omissions of any other manager, officer, member, employee or agent of the limited liability company.
(3) Any member or manager may assume, by written contract, liability for any or all debts and obligations of the limited liability company.
(4) All persons who act for a limited liability company under apparent authority to do so, but without actual authority to do so, including members who are not authorised to act as managers, are jointly and severally liable for all debts and liabilities arising from their actions.
(5) Notwithstanding any other law, unless liability for the debts of the members or managers of a limited liability company has been expressly assumed by the company, it is not liable for the debts of the members or managers whether arising in contract, tort or otherwise.
(6) A claim under this section must be brought before the expiration of two years from the date of the occurrence of the action forming the basis of the claim.
(7) Nothing in this section shall be interpreted as limiting the criminal liability of any person under any criminal statute.

25. Limited liability company as a separate legal entity

(1) No action or proceeding shall be entertained by the High Court which purports to disregard that a limited liability company is a valid, separate and distinct legal entity.
(2) Notwithstanding any other law, the fact that a limited liability company is or may be closely affiliated with other entities, whether foreign or domestic, is not grounds for disregarding the separate existence of the limited liability company.

26. Limited liability company property
Real property and personal property owned by a limited liability company is held, or owned and may be conveyed only in the name of the limited liability company. A member has no interest in the property of a limited liability company, and property of a limited liability company is not available to satisfy any claim or judgment against a member.

27. Rights of judgment creditors of a member

(1) The High Court has exclusive jurisdiction to resolve claims
- (a) by a judgment creditor against or to a member’s interest in a limited liability company; and
- (b) for a charging order against a member’s interest.
(2) On application to the High Court by a judgment creditor of a member of a limited liability company, the court may charge the member’s interest with payment of the unsatisfied amount of the judgment with interest and the judgment creditor has only the rights of an assignee of the member’s interest to the extent of the charge.
(3) Notwithstanding any other law, the remedy provided by subsection (2) is the only remedy available to a judgment creditor of a member with respect to the member’s interest.
(4) If an application is brought to charge the interest of a member under this section, service of process must be made upon the registered agent of the limited liability company in accordance with the laws of Antigua and Barbuda.

28. Fraudulent conveyance

(1) Where it is proven beyond a reasonable doubt by a judgment creditor
- (a) that property transferred to the limited liability company by a member was so transferred by or on behalf of the member with the actual and specific intent to defraud that particular judgment creditor,
- (b) that the member has not presented any supervening legitimate purpose for such transfer, and
- (c) that the member was insolvent at the time of the transfer,
  the transfer is not void or voidable, but the limited liability company is liable to satisfy the creditor’s claim to the extent of the interest that the member had in the property prior to transfer including any accumulation to the property after the transfer.
(2) A transfer to a limited liability company is not fraudulent as against a particular creditor of a member if the transfer takes place after the earlier of
- (a) the expiration of one year from the date of the transfer to the limited liability company; and
- (b) two years after the earliest cause of action arose.
(3) Where a limited liability company is liable to satisfy a creditor’s claim under subsection (1), the creditor’s rights to recovery shall be limited to the property transferred to the limited liability company or to the proceeds of that property.
(4) For the purposes of this section, the burden of proof of the member’s intent to defraud the creditor lies with the creditor.
(5) This section applies to all fraudulent conveyance actions and proceedings brought in any court in Antigua and Barbuda, however described, against any person relating to a limited liability company.
(6) The remedy set out in subsection (1) is the only remedy available in such a proceeding.
(7) A creditor who does not present all claims arising out of any controversy and join all parties with a material interest may not present those claims or bring an action against those parties in a subsequent proceeding.
(8) Every creditor shall, before bringing an action or proceeding against a limited liability company property governed by this Act, deposit with the court registry an amount equal to one-quarter of the amount claimed, in order to secure the payment of any costs that may become payable by the creditor.
(9) For the purposes of this section,
- “creditor” means a person who has obtained a judgment from the High Court for specified monetary damages;
- “entity” means an incorporated association owned by one or more persons that have limited liability for the debts of the business, including a trust or foundation, that is formed or continued under the laws of any jurisdiction;
- “insolvent” means that immediately after the transfer of the property to the limited liability company, the member’s liabilities exceeded his or her assets taking into consideration the fair market value of those assets and liabilities at that time;
- “intent to defraud” means where an individual acts wilfully, and with the actual specific intent to deceive or cheat, for the purpose of causing financial loss to the creditor bringing the action, or to bring some financial gain to himself or herself, but the intent to defraud a creditor is not to be imputed by reason only that the transfer
  - (a) was made to an insider or related party,
  - (b) was made without consideration, or
  - (c) made the member insolvent;
- “transfer” means the conveyance or disposition of property from one person to another or the settlement or initial contribution to an entity, but does not include transfer in exchange for capital interest in a limited liability company.

29. Statute of Elizabeth
The enactment titled 13 Elizabeth 1 Ch 5 (1571) does not apply to a limited liability company to which this Act applies.

30. Foreign judgments not enforceable

(1) Notwithstanding any treaty, convention, statute, or rule of law or equity to the contrary, no proceedings for or in relation to the enforcement or recognition of a judgment obtained in a jurisdiction other than Antigua and Barbuda against a limited liability company to which this Act applies or any manager or member of such a limited liability company in relation to matters governed by this Act shall be entertained by any court in Antigua and Barbuda.
(2) For the purposes of this section, a judgment obtained in a jurisdiction other than Antigua and Barbuda does not include a judgment rendered in an appellate court not located in Antigua and Barbuda that relates to an action commenced in a court in Antigua and Barbuda.

31. Parties to actions
Except as otherwise provided in this Act, a member of a limited liability company, solely by reason of being a member, is not a proper party to proceedings by or against a limited liability company unless the object is to enforce a member’s right against or liability to the limited liability company.

32. Limited liability company as proper party to action

(1) The limited liability company is a proper plaintiff in a suit to assert its legal rights and a proper defendant in a suit asserting a legal right against it.
(2) The naming of a member, manager, or employee of the limited liability company is subject to
- (a) a motion to dismiss, if the member, manager or employee is the sole party to sue or defend; or
- (b) A motion for misjoinder if he or she is joined with another party who is a proper party and has joined only to represent the limited liability company.

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