|22 December 2018
For Club Members only
|Twin Legal Successes, December 2018
|Following hot on the heels of last week’s good news of the Arona Court judgement finding in favour of the Club against WimPen for demanding illegal second payments, we have further good news to report that a Spanish Court has now recognised the Arbitration Award in its entirety. All of WimPen’s objections for enforcement were rejected. This was dealt with at a Higher Court in Gran Canaria that has now delegated practical enforcement of the award to the same Arona court in Tenerife that upheld the Club’s case against Wimpen for demanding illegal second payments. A translated copy of both of these orders is available for members to read in the “Key Docs” section. (Note: these documents are for the sole information of Los Claveles Club members and must not be downloaded, copied or otherwise shared with any non-members).
Following the second success, there is evidence of WimPen making moves to comply with the Arbitration Award which the Club welcomes and hopes will continue.
On the other hand, the lawyer representing WimPen in the Arona Court case made it clear on social media that WimPen would appeal the judgement within the 20 days allowed for this, i.e. by 21st January 2019. This is unfortunate as WimPen clearly has an immediate opportunity to refrain from the illegal activity that the judge describes in his summary of the case, thereby relieving Club members from the injustice, hardship and distress of having to pay twice for access to their accommodation, or to exchange it via RCI.
The way the Spanish justice system appears to operate is that any non-compliance with a Court judgement has to be pursued through the system by obtaining a further Court order to enforce the judgement. This is not the same as the British system of justice where any non-compliance with a Court judgement would immediately be held to be in contempt of court.
The restitution that WimPen will have to make to the Club as a result of these two cases will take time to achieve but it is quite clear that Club members have been rewarded for their patience. It is hoped that the purported President of the Development Owners Association (DOA), and those members who are opposed to the legal action being taken to restore control of the resort to the owners, will now desist from undermining the Club’s strategy and stop advising Club members to pay WimPen because it has now been judged to be illegal.
Of particular note in the Arona Court case is that WimPen claimed that the Club’s lawsuit should have been brought against the President of the Development Owners Association, as it was his instructions that WimPen were following to demand second payments of maintenance fees and to deny members access to their apartments, or to make exchanges through RCI, if they did not pay WimPen. The Club’s legal representative has been instructed to look into the President’s accountability for wrong doing towards the community following this revelation. In the meantime, Club members who have suffered the injustice, hardship and distress of having to pay twice for their holiday, or who have had their rights to exchange their timeshare via RCI restricted, now know who WimPen regards as being ultimately responsible for the illegal practices that they have been carrying out.
As a result of the Spanish Court order for the enforcement of the Arbitration Award, our RCI members will be relieved to know that, on their behalf, the Club Committee is now actively pursuing the lifting of the restrictions on deposits and exchanges that RCI has been allowing WimPen to make.
Club members will also be aware that WimPen has instigated a second arbitration to contest the Club’s governance from April 2017. The Committee is pleased to report to members that the Club’s defence is being conducted by Scotland’s leading QCs (Queens Counsel) who are concerned about the experience to date of the Club, and others, regarding the arbitration process. With their support, Club members can have confidence that the Club is being fairly represented in the arbitration process, and on a basis that recognizes the Club’s structure and standing. This support, which covers the legal case to remove FNTC as well, provides a huge boost to the Club’s prospect of success and containment of cost.
We can now look forward with confidence having achieved the twin successes of the past week, and having the QCs representing the Club. All of this good news could not have come at a better time and we hope that it will add to our members’ enjoyment of the festive season. And for those members who have suffered from the actions of the DOA President and WimPen, the Committee encourages them to come forward for assistance in recovering their losses and damages. Email: firstname.lastname@example.org.
On behalf of the Committee I would like to thank you for your continued support, and wish you and your family a very Merry Christmas and a Happy New Year.
Chairman, Club Los Claveles