|Chairman’s Confidential Communication,|
1st March 2018
You will have recently received a letter dated 23rd February 2018 from German Castro referring to the outcome of the Appeal in the arbitration. Mr Castro arrogantly announces that the Appeal has not had “the expected result”. I can inform you that as far as the Committee is concerned, the Appeal was correctly decided by the judge. The last six months spent before the Scottish court have been a complete waste of time and money caused entirely by WimPen’s stubborn refusal to accept the arbitrator’s findings insofar as they were adverse to WimPen – and those findings were numerous.
Mr Castro also tells you that the arbitration was “won by WimPen as stated by the arbitrator”. This is nonsense. At best, there was divided success. However, what Mr Castro fails to recognise is that the arbitrator decided in the Committee’s favour on all of the following points, every one of which WimPen fought against, tooth and nail:
1. That Carol Parkinson remained a member of the Committee of Club Los Claveles after the AGM of 27 June 2015.
2. That the Club Committee meeting of 27 July 2015 was properly convened and at that meeting, Ray Steele was properly co-opted onto the Club Committee.
3. That the Special General Meeting of the Club held on 16 January 2016 was properly convened and the business transacted at that meeting was valid.
4. That the claimants in the arbitration are entitled to have delivered to them by WimPen within 28 days all property belonging to Club Los Claveles including without prejudice the Registerof Members.
5. That the claimants in the arbitration are entitled to have delivered to them by WimPen within 28 days a reconciliation of the bank account of Comunidad Proprietarios Los Claveles showing what sums properly belong to the Claimants and to make payment of those sums to the Claimant, also within the 28 days.
6. That the claimants in the arbitration are entitled to have reimbursement by WimPen within 28 days all legal fees incurred by the claimants failing which those fees are to be paid out of the aforesaid bank account.
The Committee is extremely concerned that once again Mr Castro has gone into print about the arbitration when he knows perfectly well that the arbitration process is supposed to be confidential. The Committee could provide a line by line rebuttal of Mr Castro’s misinformation. However, the Committee thinks it will be far more meaningful simply to publish the full arbitration decision so that you can read it. You will find the full decision (dated 1st August 2017 technically described as a “Part Award”) in the Key Documents section of the owners’ website. In order to comply with the confidentiality requirements of arbitration, website registration is required and the documents are read-only.
In addition, the Committee is publishing in the same way an earlier decision of the arbitrator (dated 23rd November 2016 technically described as a “Provisional Award”) in which WimPen was ordered to release €125,000 from the joint bank account in order to assist with the Committee’s legal fees. WimPen complained about this order in one of its earlier letters to all Owners. What Mr Castro does not tell you is that WimPen has refused to implement this order at every stage. This led to the arbitrator using his powers to make an “adverse inferences” order against WimPen. You will find reference to this at paragraphs 90 – 93 of the main arbitration decision.
Our solicitors are now in the process of making an application to the Scottish court for costs against WimPen in respect of the futile Appeal. The Committee also holds a further award of costs against WimPen relating to the Provisional Award of November 2016
Mr Castro protests that his “search for justice and the truth” will continue. Justice has been provided by the arbitrator and the appeal court. As for truth, the reality is that WimPen is simply unable to accept that it lost on points 1 – 6 above and it wishes to try and keep control of the resort for as long as it can. WimPen has had no contract with the Club since 3 May 2017 yet it continues to demand payment of maintenance charges so that this can be used as a lever to starve the Club of funds and, if necessary, prevent Club owners from taking access to the resort over the common parts. Members should continue to pay their maintenance fees to the Club, not WimPen, and are encouraged to make payment as early as possible.
Owners may wish to ask themselves whether the behaviour of WimPen in refusing to comply with the arbitrator’s order, wasting tens of thousands of pounds on a futile appeal and using maintenance charges as a device to pressurise Owners is consistent with the objective of the Constitution. The Committee has paid heed to that objective at all times, namely securing the peaceful enjoyment by Owners of their weeks at Los Claveles.
Chairman, Club Los Claveles