|Representing the View of Club Members on the |
Group Opposed to the Committee, 27th June 2018
|Below is the statement made by a small group of Club Members opposed to the Club Committee, and a response to their statement representing the view of Club Members who support the Committee. All credit to the latter for searching out the facts rather than believing Mr Pengelly’s or Mr Castro’s spin and propaganda. These autocratic and powerful men have deliberately targeted and sought to undermine the integrity of the Chairman and President of the Club Committee, a point made by the independent Arbitrator who recorded that |
“……the conflict was heightened at the 2015 AGM when the decision to terminate Wimpen’s appointment was ratified by the Membership of The Club. It is clear to me that from that point onwards Wimpen have done everything they can to deligitimise the Committee and their authority.”
However, Mr Pengelly, Mr Castro, and Mr Kenny have failed to break the resolve of the Committee to right the combined wrongs of WimPen, Onagrup and FNTC where Los Claveles is concerned. No matter how hard they try, they cannot break it, which is why the owners are, in the long run, going to succeed.
Moving on to the statement of the group opposed to the Club Committee. Those Club members who are also Escritura owners, and who attended the recent Escritura AGM to witness the vehemence with which one leading member of the opposition group projected his ire at the Club Chairman, would have been left in no doubt that this is a personal crusade against the Club Chairman (and the Club President), not an objective, reasoned case. The seeds of this crusade were sown in March 2015 as a result of the Club Committee giving WimPen Onagrup notice of contract termination instead of negotiating with them.
The statement begins:
“WHY WE OPPOSE THE CLUB COMMITTEE
We want owners to understand why we oppose the actions of this chairman and committee and want Wimpen to remain as administrators for the time being.”
The opposition group is fixated on the Committee to the complete exclusion of the fact that it is the Club Members in their hundreds who are deciding what direction and what actions the Club will take, not the Committee. The opposition group cannot accept the democratic will of the majority and have instead resorted to obstructing that democratic will by aiding Onagrup to illegally remain in Club administration more than a year after its contract expired.
“In 2015, just 2 months after Ivan Pengelly sold his shares to OnaGrup, the committee, on just the casting vote of the chairman, decided WimPen’s contract should be terminated and they took a proposal to that effect to the AGM.”
Weeks passed after the announcement of the sale of WimPen to Onagrup before Mr Pengelly finally agreed to respond to repeated requests to attend onsite owners’ meetings to explain the ‘out of the blue’ sale. There was also a 2-month wait before Onagrup would meet the Committee. Both of these are significant in themselves because they sent a very clear message to owners that they were secondary to WimPen and Onagrup’s business arrangements.
The statement made by the opposition group about the Chairman’s casting vote is incorrect. All three elected members of the committee voted to give Onagrup notice of termination of contract. The chairman’s casting vote applied to the decision taken at the July 2015 Committee meeting to co-opt Ray Steele to the committee to replace Julie Curwood who resigned at the AGM. If the opposition group can get this simple fact wrong, it immediately casts doubt on their credibility.
“The Managing Director of Onagrup was prevented from making a prepared presentation. Those present at that AGM voted in favour of retaining WimPen, but this vote was overturned on the discretionary proxy votes held by the chairman, who voted for his personal preference and against the room.”
This is yet another example of the opposition group’s victimisation of the Club Chairman, and a very selective description of the events that took place at the 2015 joint AGM. The Club Chairman was given the impossible task of fitting a quart into a pint pot because of WimPen’s disregard of the advice given to Mr Pengelly by the Chairman about the time required for this meeting given the level of concern about the sale of Wimpen that had been expressed to Committee members. The Club Chairman chose to hear the views of Owners in the restricted time available rather than a presentation by Onagrup, which the Committee had already received at the March 2015 on-site Committee Meeting and that had failed to impress them. At that Committee meeting Onagrup had chosen to “tell” the Committee what would be happening at Los Claveles, rather than “sell” to them how Onagrup would be a suitable new partner for the owners at Los Claveles. Onagrup had 2 months in which to address the concerns that were expressed to Mr Pengelly immediately following the sale, and a further 2 months after receiving notice of termination at the March committee meeting. Instead they ignored them and came in to tell the Committee and the owners how things were going to be.
The 2015 AGM was no ordinary general meeting. Proxy votes were given to the Chairman with the clear intention that he was to use those votes to end WimPen Onagrup’s contract for the administration of the Club. These are not to be confused with discretionary votes where the holder listens to the arguments and votes according to their view of what is in the best interests of the Club. Most owners who attended the meeting were of the same mind until Noel Ruddy, an owner and a lawyer, planted fear and uncertainty in their mind that they would be held financially accountable if Onagrup sued the Club for breach of contract. (See further on in this document how this threat can be removed). Not surprisingly a large number of owners either chose to abstain or changed their mind and voted against terminating Onagrup’s contract in order to protect themselves. This reduced the support vote but there was still a majority in favour of terminating the contract from the clear majority that had originally intended to vote to end the contract.
“We believe that decision was premature. Wimpen’s contract still had two years to run. Unlike other resorts, they were given no opportunity to show us what would happen, or to go through their learning curve and unike other resorts, there was little in the way of negotiation”.
The Chairman attempted to give Onagrup the opportunity to show what they could do by meeting them and FNTC in Barcelona only to be told that a 1-year contract conditional upon respecting the Club Constitution was not acceptable. He was advised by FNTC that if he did not accept Onagrup’s conditions for a full 2-year contract without the restriction of having to conform to the Club Constitution, then the Committee would not receive any funding for the Club’s legal expenses. Far from the decision being premature, these negotiations proved beyond any shadow of doubt that Onagrup and FNTC were not suitable partners for Club Los Claveles. Some would go much further in describing the behaviour of these two organisations given these facts.
“We agree that some of the changes to the rental system that Onagrup introduced at that time were unacceptable, however other resorts were able to negotiate their way through those changes, and are all now proving to be very successful resorts. So why not Claveles?”
The description given above of the negotiation that took place with Onagrup and FNTC in Barcelona would be sufficient for most people to reject the opposition group’s view of the world as being naive. Other, former WimPen resorts had the protection that Los Claveles does not have. They are predominantly Escritura-based resorts whereas Los Claveles is predominantly Club-based, leaving Los Claveles Club Members open to risks of takeover that owners on the other resorts are not. It’s complicated but the threat is real nevertheless. In 2018, Onagrup’s accumulation of weeks owned at Los Claveles, and votes guaranteed to be given to them by companies to whom they have ‘sold’ cancelled Club weeks, would already be sufficient to control what happens at the resort had it not been for certain illegalities of ownership of these weeks by Onagrup. The writing is clearly on the wall from these actions that Onagrup intend firstly to control the resort, and then to take it over as valuable real estate that they can make £millions from for very little outlay. There has never been any commitment given by Onagrup that they will not do this, which leaves a very strong risk that they will.
“In the subsequent passing of time, there have been several general meetings, which only a proportion of owners were aware of or able to vote and several changes were made to the constitution.”
The opposition group’s talent for being selective with the truth is demonstrated here by omitting to say that Onagrup deliberately prevented the Committee from controlling, and gaining access to their membership register, which is property that belongs to the Committee, in order to stop the Committee from communicating with all members. Claims by Onagrup that the Committee is a third party and therefore prevented by Spanish data protection law from gaining access to the membership register is not correct, something that the Arbitrator confirmed. In fact both Spanish and UK Data protection Law is clear that the Members Register belongs to the Club as the Committee is the Data Controller. This is reinforced by a ruling on a similar case by the Agencia Española de Protección de Datos (AEPD) in a document Informe 0084/2009. Nevertheless it is a wonderful example of obfuscation by Onagrup to prevent the Committee informing all owners about what is really going on. The Arbitrator ruled that WimPen’s failure to comply with his order to hand over the Members Register invalidated their argument that not all members had been invited to general meetings.
“The chairman managed to increase his hold on power by changing the constitution. Mr Fletcher should have stood down last year having served 3 years in office. He pushed through a 1 year extension for himself that he then increased to 3 further years. He will have been in office for 7 years by the end of his current term and has also removed the previous compulsory break.”
This is malicious personalisation, none of which is true. What happened was that the term of office of the Chairman and the President of the Committee was aligned to the existing 3-year term of office for committee members. The election of the Chairman and President was newly conducted on this basis and Mr Fletcher was perfectly entitled to stand for election as Chairman under these new conditions.
“The power of the committee was also increased and we have now seen several occasions where members opposed to them have been suspended. Founder members, who are legitimate members of the committee have also been removed. The committee appointed a new administrator, a Spanish Lawyer, on the basis of a brief video presentation to a general meeting. There was insufficient vetting, he is not a resort administrator and at the very least the committee should have sought competitive tenders.”
Stripping out the emotional references to power from this statement, the election of members of the committee was to align all of them to a three year term of office and was called for by owners who were concerned that at such a critical time there should be stability and the retention of knowledge and experience. It was as simple as that.
Members of the group opposed to the committee were properly suspended for inciting subversion. They were openly advising Club Members to breach the Constitution by telling them to pay their membership fees to WimPen, an organisation which no longer had a management contract with the Club after 3 May 2017.
Founder Members were originally intended by the developers of timeshare resorts, in our case Wimpey, to last for a couple of years in order to help the owners who were first elected to the committee to quickly learn how to stand on their own feet. Obviously, continuing this process was advantageous to WimPen who bought out the management contract from Wimpey, because it gave them direct influence over what happened at the resort, but it also created a conflict of interest for Wimpen. Not only was Wimpen running the resort but it was also taking part in voting to award the contract for these services. Despite all of this the Arbitrator ruled that Mr Pengelly was the only legitimate founder member at Los Claveles. Club Members subsequently took the decision at a general meeting to remove the conflict of interest that WimPen represented and the anachronism that it surely is.
The appointment of Hiro Bulchand, after a thorough vetting process by the Committee and the approval of owners in a democratic process at general meetings, was open, transparent and diligent, and Club Members were united in approving Mr Bulchand as a more than able administrator and advocate to take on Onagrup in the challenging circumstances in which the Club found itself. The Committee did look at costs of Administrators and he was far, far cheaper than WimPen.
“Members registered with WimPen and the Trustees are now told their certificates are illegal, and several have been prevented from voting at this next AGM. There will also be many owners who simply don’t know about this AGM so are unable to vote. The committee are demanding that owners pay them their maintenance, even though the dispute is not over, while owners need to also pay the Community to obtain access, leaving them with the dilemma of trying to obtain a refund from the club for their double payment. We believe this is unacceptable.”
The Committee took immediate action, following the vote of Club members at the 2015 AGM to terminate Onagrup’s contract, to remove all delegations from WimPen, an Onagrup company. Onagrup ignored this directive from the Committee, and went even further by disposing of 1000+ cancelled weeks belonging to the Club without authority. All of these certificates are void. In the SGM held in January 2016 the ambiguity of who issues club certificates was resolved taking this right away from Time Ownership Los Claveles (Management) Ltd . The Club Committee is issuing new certificates free of charge to replace the illegal ones issued from 1st August 2015 as WimPen and Steve Cowell, their sales representative, were advised to stop issuing Club Certificates from that date.
Onagrup’s contract as Club Administrator ended naturally on 3 May 2017. After that date Onagrup had no legal authority to continue and should have handed over to Hiro Bulchand, but they refused to withdraw and continued illegally to issue invoices and block any Club Members who legally paid the Club rather than WimPen. For unexplained reasons, the Arbitrator took until 1 August 2017 to produce his report, and Onagrup subsequently failed in their appeal against his findings. Time and again Onagrup has been ordered to comply with the Arbitrator’s rulings, and also following the publication of the Appeal Court judge’s findings on 22 February 2018, and has failed to do so, despite the conditions of arbitration being final and binding on both parties.
“On top of all this, the committee have spent a small fortune on legal fees, and have not issued any accounts to show us where the money they receive has gone.”
At all times the Club Committee has been directed by the members. Given the circumstances of the dispute, arbitration was the only option left open to members to resolve it, and arbitration is not a free service. So, the costs of arbitration are an unavoidable fact of life given Onagrup’s intransigence in initially refusing the entirely reasonable offer that was made to them back in November 2015, and then all the way through the arbitration process to the point now where the orders are having to be enforced upon them in the Spanish Court. It was Mr Pengelly who stated that WimPen would run the Committee out of money.
At all times in this contentious dispute the Committee has explained that the financial position of the Club would be kept confidential from Onagrup which is a normal and sensible precaution to take given the circumstances, and especially so given Mr Pengelly’s declaration that Onagrup would attempt to run the Club out of money in order to win the dispute. A presentation was made by Roger Lindsay at the 2018 AGM outlining how most of the money had been spent and a commitment was given to produce audited accounts when the dispute has ended.
“We are told that WimPen lost the arbitration and their appeal. They only lost part of the arbitration, but we are not lawyers and this is a matter for the Committee, Wimpen and their lawyers, not us. The fact is that WimPen are still here, doing a great job of running the resort and making significant improvement to our finances.”
Onagrup’s financial accounting has already been challenged, and is open to even greater scrutiny following the revelation at the April 2018 Club AGM that they disposed of 1000+ cancelled weeks in 2016 which belong to the Club without the Committee’s approval. Their figures simply do not add up and WimPen Onagrup’s Director of Finance has been asked to explain them.
The Arbitrator’s report and a link to the Appeal Court Judge’s report are both on the owners’ website. They are open to all Club Members to view. The Arbitrator confirmed the legitimacy of the Committee and all of their actions; he confirmed the legitimacy of Mr Pengelly as the sole Founder Member of the Club Committee; and he explained his inability to rule on the termination of WimPen’s contract because of the three-way ‘Confirmatory Agreement’, which he ruled took precedence over the Club’s Management Agreement with WimPen, and because this did not have an arbitration clause.
“Now the chairman wants to change the club to a Limited Company. Why? Owners have been protected for 25 years or so by community law and the statutes. Why the need for change? It will change the face of the club forever and put even more power into the hands of the committee.”
Again the opposition group’s fixation with the Club Chairman is evident in this statement instead of acknowledging that it is a matter of public record (with references provided on the owners’ website) that unincorporated clubs like Club Los Claveles are open to unlimited risks that they would not be under if they were incorporated as a company limited by guarantee. The whole purpose of this common sense change is to protect the Club and its members. See Mr Ruddy’s comments above. The claims of the opposition group are completely lacking in substance and appreciation of the circumstances in which unincorporated clubs find themselves. The change puts power into Club members’ hands, not the Club Committee’s hands but the opposition group is blind to this purpose.
“The time has come for the chairman and committee to be held accountable for the disastrous dispute they have inflicted on us. We demand a full general meeting where EVERY owner has an opportunity to vote on the future of Los Claveles and a new committee.”
These conclusions are entirely unfounded. The Club Committee has been completely true to the Club Constitution and to Club Members in every action it has taken. Club Members have voted overwhelmingly to approve these actions in the face of intransigence and illegal activity by Onagrup. The opposition group has attempted to subvert the will of the majority of Club Members in support of Onagrup, and the record shows that they carry little support. On the contrary, their efforts have added to the difficulties that Club Members have faced in resolving this dispute.
Every owner will have the opportunity to discover what Onagrup has sought to hide from them when justice is served and the Club Committee has possession of the Club’s property, as ordered by the Arbitrator and Appeal Court Judge. Then, and only then, will all Club Members have the opportunity of voting on the future of Los Claveles in the full knowledge of all of the facts, rather than Onagrup’s propaganda, openly supported by the opposition group. The Club Committee welcome all Members coming to General Meetings who are legitimate owners at Los Claveles. Those who have bought cancelled weeks that belong to the Club (Mr Pengelly’s words in a letter sent to all owners) are not legitimate owners. The Committee want to be in possession of the complete Members Register so that all can be invited.
“The Los Claveles Independent Owners Working Group 23 April 2018 | firstname.lastname@example.org | www.losclaveles-alt.eu”
Independent is a key word in this title that the group opposed to the Club Committee has adopted. Their leader, Mr Roger Barrow, is a Director of WimPen’s Las Casitas Holding Company, and he took instruction from WimPen’s lawyer throughout the recent Escritura and DOA AGM in his role as chairman of that meeting. He is definitely not independent when all of his information and pronouncements come from Onagrup.
The leading members of this group were suspended by the Club Committee for bringing the Club into disrepute. They had their suspensions lifted so that they could take part in voting at the 2018 Club AGM. Despite this they continue to advise Club Members to breach the Club Constitution by telling members to pay their maintenance fees to an illegal organisation. Irresponsible would be a more appropriate word for them rather than independent. What they are doing undermines the democracy of the Club.
The Committee of Club Los Claveles
on behalf of members who support the committee