The Truth, the Whole Truth and Nothing but the Truth
|Dear Club Member|
I wrote to Ona WimPen and Roger Barrow on no less than five occasions, in respect of the Common Areas service charge, and have never received a reply. It appears that the only way of communicating with Ona WimPen and Snr Castro is by way of open letters involving the entire Club membership. I may not agree with Snr Castro’s replies but it is progress of a kind.
I am not going to give credence to some of the outlandish statements made by Snr Castro in his recent communique, but I will give concise and to the point clarifications. It is also necessary to remind everyone of the important issues and facts underlying the ongoing dispute.
Please remember where this all started:
On 31 March 2015 the Committee responded to a swathe of serious concerns and genuine alarm from owners (following Ona’s secretive acquisition of Wimpen and the subsequent changes it was looking to make to operational policies and aspects of the constitution) by giving notice to Ona WimPen that the contract for Ona WimPen to supply services was being terminated.
The AGM in June 2015 endorsed the decision to terminate the contract with Ona WimPen as the Management Company and Administrator. At this meeting Mr Ivan Pengelly said that there would be two Administrators on the Resort (the Escritura community had not terminated their contract with Ona WimPen) and we would have to find a way of working together.
Ona WimPen refused to comply with the termination and carried on representing the Club.
The Club Committee had a responsibility to ensure the AGM decision was carried out and that everyone, including Ona WimPen, complied.
Ona WimPen consistently refused to hand back the control of the Club so the Committee was obligated to apply the Constitution’s dispute resolution procedure, which was arbitration. We were legally advised that we could report limited aspects of this arbitration to Club members only and therefore we did this by verbally reporting at the General Meeting and a secure member-only website where sign-in verification was required. Due to the confidentiality breaches by Snr Castro we, ultimately, were compelled to publish the entire first arbitration on the secure website. This can be directly accessed by clicking on the respective document tab available via this link
The second arbitration was commenced by Ona WimPen. There is no doubt that this second arbitration was a blow to the Club and the Committee and further information on this is available by viewing our solicitor’s correspondence which can be accessed by clicking on the respective document tab available via this link
Snr Castro has claimed that the Club has spent £1m in legal fees. This is a nonsense. He is basing his assumption on what Ona WimPen has spent. Ona WimPen has submitted a claim to the second Arbitrator of fees and disembursements totalling £662,193.97 For details of this please see the letter from the Club’s solicitor on the above link. The Club’s legal fees totalled £51,700, less than 10% of Ona’s expenditure. The Club’s solicitor gave a discounted rate of £170 per hour in recognition of the lay membership of the Club which includes many retired persons. Fees charged by Solicitors acting for Ona WimPen included rates of £550 per hour and they spent at least £95,000 on QCs. By contrast, 2 QCs and a Junior Counsel representing the Club in the arbitration willingly gave their services on a speculative ‘no win, no fee’ basis and received no payment.
Putting aside for the moment both Arbitrations. Simple facts:
Ona WimPen was given notice of the termination of its contract to represent the Club in any capacity.
The Contract between the Club and Ona WimPen ended on 2 May 2017. Ona WimPen has admitted this in court.
Ona WimPen is acting illegally by continuing to portray itself as the Administrator for the Club. Ona WimPen has no legal right to invoice and collect fees for the Club apartments. However, expecting the police to take action in Spain is problematic as there is a reluctance to assist people from other countries in this way. This is why we have to take civil action.
Under the Club Constitution it is the Committee’s responsibility to maintain the Register of Members and to invoice and collect fees. Please see Clause 11.6 of the Club Constitution on the Club website that is accessible directly by clicking on the respective document tab available via this link
Why has Ona been seeking to sequester Club weeks over the years? And why, latterly, has Snr Castro used Ona WimPen staff and Resort staff to contact all Club members to try to persuade them to support a call for a Special General Meeting, for the purpose of replacing the Committee and myself as Chairman? There can only be one answer and that is that this is the only way that Snr Castro and Ona WimPen can gain control and eventual ownership of the Resort. If it was not for your dedicated and democratically elected Committee members, who in addition to being senior citizens are all unpaid volunteers working on your behalf, Snr Castro and Ona WimPen would now fully own the Resort. At this point let me remind you of the joint meeting of the:
“Los Claveles Timeshare Community 1 and the Development Owners Association” on 6 May 2018.
At all meetings previous to this the Club’s representative Denis Wade and later Ivan Pengelly were invited to the meeting and were allowed to cast all the votes on behalf of the Club. At the meeting in 2018 no one from the Club was invited. As your Club Chairman I was able to gain access to the meeting courtesy of an Escritura owner giving me their proxy but I was prevented from casting the Club’s votes. This meeting was held in contravention of many of the Statutes that govern such meetings (A full report is available upon request).
In short, the voting at the meeting was a sham. You will be aware that Escritura owners comprise less than 15% of the Resort.
Snr Castro used 98 Escritura votes on behalf of Ona WimPen to elect Mr Roger Barrow as the temporary Chairman. This, in itself, broke the rules as Spanish Law states that Administrators cannot vote despite Mr Castro’s claim that Ona WimPen’s ownership of weeks gives them the right to vote. Mr Barrow received 112 votes in total. The position was also contested by Mr Roger Lindsay. Mr Lindsay received 20 votes. If the rules had been complied with Mr Lindsay would have been elected to the position by a majority of 6 votes.
During the meeting it became apparent that for all resolutions Mr Barrow was counting proxy votes in favour, even though the member had not signified a vote. Mr Barrow had no authority to do this.
In simple terms, Mr Barrow and WimPen obtained their positions by dubious means.
I have been made aware from an internal Ona WimPen source that there are serious irregularities regarding the use of Escritura for voting purposes. These are:
1. When an Escritura was purchased most people gave WimPen a Power of Attorney.
2. There is a considerable number of people who have defaulted on their maintenance payments; and also more who have never completed the Escritura transaction in front of a Notary, therefore the Escrituras (Deeds) are still in the name of Wimpey Homes Holdings Limited (not WimPen).
3. Rentals have been given priority to lapsed Escritura weeks so that the maintenance can be deducted and credited to the account. THIS ALLOWS WIMPEN TO USE THE VOTES ASSOCIATED WITH THESE WEEKS.
Do not allow history to repeat itself.
I have to repeat what I have said in my previous communication. Under no circumstances can we allow Snr Castro to use the weeks/votes he has ‘acquired’ to undermine the Club’s Consitution and democratic process. At this time these number more than 1,200 proxy votes supposedly given to him by 7 companies that no one knew existed until after Ona WimPen’s contract was terminated. In an attempt to verify the ownership of these weeks I wrote to all the companies (addresses supplied by Ana Martin on proxy forms) asking them to explain how they had been acquired. I did not receive a single reply. I have proven that the majority of these weeks belong to the Club and that is why the second Arbitrator refused to say that the weeks were legitimately owned by the companies. I have asked Snr Castro to prove that the companies have a legitimate title to these weeks to avoid accusations of fraud and theft. He has failed to do so. All he has done is to say that FNTC has confirmed that the weeks are owned by these companies when it is a fact that FNTC only has the Register given to them by Ona WimPen. This does not prove that these transactions are legitimate. It would be irresponsible of the Committee to authorise the calling of a meeting until this question is resolved. It is also impossible to ensure that all legitimate owners are invited to a General Meeting without having the Register of Members which has been properly authenticated by the associated financial information. With respect to FNTC’s role in proceedings, it should be noted that:
1. FNTC’s contract was terminated by the General Meeting of the Club in 2012.
2. Ona WimPen has continued to pay FNTC from the joint account without the approval of the Club.
3. Research has indicated that directors of FNTC are also registered directors of Onagrup holding companies.
Joint Account and money owed to the Club
Snr Castro has consistently refused to to acknowledge and comply with Spanish Law that the financial accounts for different organisations cannot be combined. Further to this I can advise that Ernst and Young S.L. in Santa Cruz, Tenerife was commissioned by Ona WimPen to report on the division of funds. There is mention of this in the Club solicitor’s letter referred to earlier. Mr Castro has refused to supply a copy of this report. I wrote to Ernst and Young asking for the report but they would not release it without Snr Castro’s authorisation. You can see copies of these letters by clicking on the respective document tabs available via this link
This communication is long enough so I will close by once again reminding you of how devious Snr Castro is, if you needed reminding.
In the first Arbitration Ona WimPen was ordered to pay €125,000 for the Club’s legal fees from the joint account controlled by Ona WimPen. By way of circumventing the judgement, Snr Castro enlisted his employee Jane Oliphant (who also represented a company with multiple Escritura and Club weeks) to take Ona WimPen to court to object to Ona WimPen releasing funds to the Club without Escritura owners agreeing to it. You are reminded that Escritura weeks represent less than 15% of the finances. The request for an injunction was filed into court, which was also advised by Ona WimPen that the Club could not be represented by the Club Chairman because they did not know how to find him (remembering, of course, we were in arbitration with Ona Wimpen in Scotland at the time). Ona WimPen then advised the Court that they (Ona WimPen) would represent the Club. Needless to say that there was no opposition to Jane Oliphant’s application. In fact Ona WimPen came to an ‘out-of-court’ agreement with Jane Oliphant that they would not pay out of the joint account without the approval of the Escritura contingent. When the Club became aware of this matter, fully a year later, we immediately put in a challenge to the Court. The Court ruling obtained by Jane Oliphant was recently overturned and is awaiting a re-hearing with the Club being properly represented this time. Bear in mind that the previous outcome of this case:
1. denied the Club access to its funds (held by Ona Wimpen) to cover its legal fees.
2. was deemed central in preventing the enforcement of the first arbitration award from being executed.
This lack of progress in enforcement of Arbitration 1 played a central part in Onagrup’s case in Arbitration 2 and proved to be very damaging to the Club.
As mentioned in my earlier communication. The result of the second arbitration has resulted in Snr Castro and Mrs Martin being members of the Committee. It has always been the responsibility of the Chairman, firstly Ivan Pengelly and now me to disclose important information from Committee Meetings. This information can be accessed by clicking on the respective document tab available via this link
I am in no doubt that one reason why the Club is being refused the Register of Members and financial information is because the information would be incriminating and lead to possible criminal charges and substantial compensation.
A question for Snr Castro. As the Arbitration was confidential how did Jane Oliphant and her company know about the Arbitrator’s Order for the payment of €125,000? Why would she be interested anyway? I look forward to receiving Snr Castro’s global reply. Please support the Club by not paying WimPen any money and do not give in to threats and intimidation. Finally, in order to remove any confusion or doubt about the objectives of myself vs Snr Castro.
I, as Chairman of Club Los Claveles, was democratically elected to act on behalf of its members’ best interests and to ensure the Club’s valuable property/financial assets remain in the hands of its members’ – the rightful owners!
Whereas Snr Castro is unelected in any official capacity within the Club AND being the Managing Director of Onagrup is principally acting in the commercial interests of his company to ensure they attain their long-term profit objectives by acquiring the Resort (valued at €40m+ and €2m+ per year). He is definitely not interested in the €183,000 annual maintenance fee (circa €800,000 since 2017) which Onagrup continues to take despite having no contract, nor authority to do so.
My Very Best Wishes for a safe future.
Chairman, Club Los Claveles