|Club Chairman’s Rebuttal of Sr Castro’s letter dated 18 October 2022|
Updated on 14th November 2022 to address challenges to the facts published on the Los Claveles DOA website https://losclaveles.eu
|Dear Club Member,|
Due to outrageous comments that have been circulated, by those who have something to gain, I find it necessary to repeat various facts. You will know that everything I say is THE TRUTH THE WHOLE TRUTH AND NOTHING BUT THE TRUTH. You will know this because I back up my statements with evidence WHICH CAN BE VIEWED ON THE CLUB WEBSITE.
The Club raised a legal challenge to the resolutions put forward by ONA WimPen for the 2022 DOA SGM that sought to empower the DOA to have control over the Club. The Spanish Court has yet to rule on this legal challenge. Regardless of this the Spanish Court has no jurisdiction over the Club Constitution or the affairs of the Club.
The reason why those in opposition to the Club regaining control of the Club’s property on the Resort of Los Claveles are making libellous remarks is because the Club and its Committee are making progress in retrieving its property back from those that have a modus operandi (strategy, plan of action). Let me be specific:
1. When the dispute between the Club and ONA Wimpen arose in 2015 the elected members of the Club Committee sought UK legal advice about the Club having more direct control over its affairs. The legal advice given was to set up a limited liability company, Club Los Claveles Ltd., to provide the new Club Administrator with the means to collect maintenance fees in the UK from Club Members. It is not my company, nor the elected Club Committee Members’ company. The Company exists for the benefit of the Club, not individuals.
The protracted dispute with Onagrup over its decision not to honour the terms of the first arbitration, by accepting and complying with the outcome, has prevented the Club’s new Administrator from doing his job of maintaining and improving the Club apartments.
Companies House requires that all limited companies must be registered and must have Directors. Club Los Claveles Ltd. has 3 Directors who unsurprisingly are one serving committee member and two committee advisors, all of whom are Club Members. As happens with most companies, these Directors will change over time. It is a natural process and in no way does being registered as a Director of Club Los Claveles Ltd. mean that these individuals own the company or benefit personally from it.
The setting up of this company did not require to be decided by the members of the Club since the Club Constitution empowers the Club Committee to do so. Clause 11.4 states that they “have the power to do all things …… that may be necessary for the carrying out of the objects of the Club for its general management”. This includes taking legal advice to set up Club Los Claveles Ltd. to give the Club more direct control over its affairs. To suggest that such a decision should be made by Club members at an AGM is to lack understanding of how the Club functions. In 2015 when the dispute with ONA WimPen began, the elected members of the Club Committee were empowered to act upon the legal advice that it received to set up Club Los Claveles Ltd. and to follow this up at the 2016 Club AGM by obtaining Members’ approval to appoint a Club Administrator to replace ONA Wimpen, which happened when ONA WimPen’s contract expired on 2 May 2017.
This was not affected by the null and voiding of the 2017 and 2018 Club general meetings as a result of the second arbitration. It had no effect on decisions taken in 2015 and 2016 to set up Club Los Claveles Ltd. and to appoint Sr Hiro Bulchand as the Club’s Administrator on the expiry of ONA WimPen’s contract.
On a separate and unrelated matter, the elected members of the Club Committee took the decision to uphold confidentiality of the second arbitration award, as was their given right, in order to protect the Club from the harm that reporting of the award without reference to the first arbitration award would have.
2. Mr Barrow sent out a letter to all Club members, illegally using the Club’s Register of members. This is illegal because the Register is the property of the Committee. PLEASE SEE THE CLUB CONSTITUTION. The Club Committee withdrew all of ONA WimPen’s delegated authorities in July 2015. In addition, Arbitrator Malone confirmed that ONA WimPen’s contract as Club Administrator expired on 2 May 2017 and ordered ONA WimPen to return the Register to the Club Chairman. As a result of these actions ONA WimPen had no legal right to continue to use the Register to communicate with Club Members and no authority to give itself permission to use the Register as the Administrator of the DOA, and to give Mr Barrow permission as President of the DOA. The lockdown restrictions imposed as a result of the Covid pandemic made it virtually impossible for the Club to pursue these data protection breaches with the Spanish Data Protection Agency. Likewise the pandemic’s detrimental effect on the local Spanish Court which has contributed to the delay in enforcing the first arbitration and the return of the Register to the Club.
The Club Committee is the Data Controller of the Club’s Register of Members. ONA WimPen was the Data Processor. It had no authority to use the data held in the Register of Members for any purpose other than Club administration. Specifically, it had no authority to use the data for the administration of the DOA without the permission of the Club Committee as the Data Controller. Club Members gave their permission to ONA WimPen to use their data for Club administration purposes while it was the Club’s Administrator. This ceased on the expiry of its contract on 2 May 2017. Thereafter, it had no authority to hold or to use the data. The DOA Statutes do not give ONA WimPen the authority to use Club Members’ data. Club Members are legally required by the Club Constitution to provide their contact details to the Club, and the Club Committee is legally required to maintain these details in the Register of Members.
3. Mr Barrow and Keith Lear, Escritura representative, state that they will be proposing that Club members pay an increase in maintenance fees of 6% and this will be decided by the Development Owners Association. This would be illegal as it is the responsibility of the Committee to propose any increase and this would have to be agreed at a Club AGM. PLEASE SEE THE CLUB CONSTITUTION. Any Club member that pays the Club via the appointed Administrator, Sr Bulchand, will not pay any increase until this has been agreed by a Club AGM.
The resolutions passed at the 8th January 2022 DOA SGM giving ONA WimPen the authority to collect maintenance fees from all members of the DOA, including Club Owners, were subject to a legal challenge by the Club Committee. A Spanish Court hearing to adjudicate this challenge is awaited.
These resolutions were passed with proxy votes from companies to which ONA WimPen transferred the Club’s 1200 weeks without the necessary permission of the Club Committee. At the same time, ONA WimPen dissuaded a large number of Club Members from voting by intimating that their votes would be rejected if they had followed the Club Constitution by paying their maintenance fees to the Club rather than paying them to the community fund. The net result of these two illegitimate actions by ONA WimPen would negate the outcome of the voting at the DOA SGM.
4. ONA WimPen continue to pay themselves €183,000. The vast majority comes from payments made by Club members that have been illegally collected by WimPen. They work on a percentage so this may well mean a pay rise of 6%.
ONA WimPen was not entitled to take a management fee for Club administration after 2 May 2017 when its contract expired.
5. ONA WimPen continued to pay FNTC fees even though FNTC was dismissed by the Club (the late Mr Pengelly wrote the dismissal letter). This amounted to tens of thousands of pounds, all from Club funds.
WimPen was responsible for terminating FNTC’s contract, and effecting the changeover to Hutchinson, in a timely manner. It failed to do so and continued to pay FNTC for years longer than it should not have done. It is solely accountable for this failure.
6. For years WimPen and Onagrup, led by Sr Castro have used FNTC to strengthen their arguments claiming that WimPen was the legitimate Administrator and Management Company. They used FNTC to confirm the ownership of weeks that were, and still are in dispute. They used the Register of Members held by FNTC to confirm the accuracy of their claims. To now claim that the Register that has been transferred to the new trustee is not the legitimate record of ownership is ludicrous.
7. There is a problem regarding WimPen and Onagrup association with RCI. The difficulty here is that when the Resort was established over 30 years ago the agreement was between RCI and the selling Company which was Wimpey Leisure Management, a subsidiary of Wimpey Homes Holdings. There is no agreement between the Club and RCI. The Committee has met with RCI but they will not transfer any agreement whilst WimPen remain on the Resort. The Committee will recommence those negotiations once we have dislodged WimPen which I hope will be sooner rather than later. The Club website correctly advises on the present-day situation.
The resolutions passed at the 8th January 2022 DOA SGM giving ONA WimPen authority to collect maintenance fees from Club Owners has been legally challenged by the Club Committee. Once the Spanish Court adjudicates on this challenge we will have clarity over the primacy of the Club Constitution, and once the enforcement of the first arbitration award is executed by the Spanish Court of First Instance, the Club Committee will be able to negotiate with RCI for recognition.
8. Under the terms of the Agreement with the new trustee, and in order to comply with the CLUB CONSTITUTION, it is the Committee that now holds the OFFICIAL REGISTER OF MEMBERS. This will only be updated by the Committee and the Committee are the only ones that can, and will, issue Club Certificates. Certificates issued by any other body WILL NOT BE RECOGNISED.
The Community or DOA do not own any Club property and have no say in the use of those properties. The Trustee (Hutchinson) keeps the deeds (Escrituras), and the weeks associated with those properties (Villas), safe. They do this by putting the ownership into companies. There are 5 companies labeled Club Los Claveles 1 – 5. The registered addresses of those companies were changed from the address of the solicitors acting for FNTC to the solicitor’s address acting for the Club. Nothing sinister and very appropriate. Hutchinson controls all the shares in these companies.
ONA WimPen has had no authority to issue Club Membership certificates since July 2015 when its delegations from the Club Committee were withdrawn. Contrary to ONA WimPen’s belief, Founder Members do not have any authority under the Club Constitution to issue Club Membership certificates.
ONA WimPen’s claim to be the administrator of Club villas under the amended DOA Statutes of 8th January 2022 has been legally challenged by the Club Committee.
9. WimPen, Onagrup and Sr Castro have not denied that they were dismissed as the Club Administrator / Management Company at the 2015 Club Annual General Meeting.
Arbitrator Malone ruled that the Club could not terminate ONA WimPen’s contract as it was part of the “Mandatos” or joint contract with the other two communities at Los Claveles. He confirmed that this joint contract expired on 2 May 2017, after which ONA WimPen was no longer the Club Administrator. Its contract was not renewed and Sr Hiro Bulchand’s appointment as Club Administrator to replace ONA WimPen was approved by Club Members at the 2016 AGM. In addition, Club Members will be given the opportunity at a future Club AGM to approve the revised Club Constitution that was null and voided by the second arbitration for highly contentious procedural reasons. This includes the removal of Founder Members.
10. WimPen, Onagrup and Sr Castro have not denied that they had to be taken to Arbitration, under the Club Constitution, and that they were ordered to hand back to the Club Chairman on behalf of the Committee (me), all property and funds belonging to the Club. They have also not denied that they refused to honour the Arbitration award making the Club go to court again in Spain to enforce the Arbitration award. This is ongoing.
The enforcement of the first arbitration was blocked by the Spanish Court order obtained, without the Club being represented, by senior WimPen employee Ms Jane Oliphant and her sister, both directors of companies owning Club weeks. After a five-year Spanish Court battle, this order was finally overturned in February 2022, after which an application was made to the Court for the enforcement of the first arbitration award to be executed. The Club Committee and its Spanish lawyer have moved as quickly as the Spanish Courts would allow, bearing in mind that the enforcement of the first arbitration should never have been necessary if ONA WimPen had honoured its commitment to abide by the outcome.
11. WimPen, Onagrup and Sr Castro cannot deny that they transferred 1,200 Club weeks to various companies and then gained the votes as proxies from those companies to assist in engineering the voting results at the DOA/Community meetings.
WimPen, Onagrup and Sr Castro can not deny that they tried to use the 1,200 proxy votes to gain control at a General Meeting of the Club.
WimPen, Onagrup and Sr Castro cannot deny that 1,200 weeks they used as proxies contain weeks that were in the legal ownership of the Club and therefore came under the control of the Committee. Investigations continue.
There is no evidence in the Los Claveles annual accounts of income from the purchase, or annual maintenance, of the unauthorized transfer of the Club’s 1200 cancelled weeks (in 2015 and 2016) to a small number of dubious companies that failed to respond to the Club Chairman’s letters.
With regard to the SGM requested mainly by the recipients of these weeks, and orchestrated by ONA WimPen, in March 2021 the Club Committee passed a resolution at the Committee meeting held on 13th April 2021 to delay consideration of this request, which was designed to oust the elected members of the Committee, until they were in possession of the Club’s Register of Members and able to verify membership, in particular relating to the Club’s 1200 cancelled weeks. The validity of this approach, which commenced in October 2022 when FNTC transferred the Membership Register to Hutchinson, was recognised by Lord Clark in his dismissal of FNTC’s appeal at the Scottish Court of Session in January 2022.
12. The weeks for resale and those for rental that were previously published on the Club’s website were provided for the benefit of Club Members so that they could list/advertise them and make their own private arrangements for selling or renting. The Club Committee is not involved in any way with these arrangements, nor is it responsible for keeping the lists up to date.
13. The protracted dispute with Onagrup over its decision not to honour the terms of the first arbitration, by accepting and complying with the outcome, has prevented the Club’s new Administrator from doing his job of maintaining and improving the Club’s properties.
The enforced return to the Committee of the OFFICIAL REGISTER OF MEMBERS is a massive step forward, in more ways than I can mention (for legal reasons) at this time. This is why ONA WimPen tried to prevent this for 7 years. Club members can now have even more confidence that the Committee, on your behalf, will achieve the objective of regaining control of the Clubs affairs, and by doing, seeing the departure of ONA WimPen. If you have not given your 100% support for the Committee in the past NOW IS THE TIME TO SHOW YOUR SUPPORT and assist a speedy departure of ONA WimPen.
THE TRUTH THE WHOLE TRUTH AND NOTHING BUT THE TRUTH.
Club Los Claveles