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31 July 2020

THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH

from the Club Chairman, 31 July 2020

The Club Committee sent all members that have registered with the Club, on its website, a questionnaire. The purpose was to ensure that when the Committee take responsibility for running the Resort that it was done in a way that would meet the approval of members. I have received a substantial amount of returns and these will be collated and a report will be made available. It has become blatantly obvious that this has upset Sr Castro, of Onagrup and WimPen, as he has sent out a four-page letter by post and by email attacking the Committee, and me personally as Chairman. It appears that he has taken exception to the fact that we have announced that the Committee/Club/Administrator are ready to take over at short notice. I can only assume that this has put Sr Castro into a panic. It is libellous of Sr Castro to claim that Mr Barrow and other members of the Club have been threatened and intimidated by the Committee, and the Committee is prepared to take legal action to assert this. I have written to Mr Barrow advising him that some of his actions are not legal – this is a matter of fact. Due to Sr Castro’s libellous attack on the Committee and myself I am left with no choice but to remind owners of the true facts. I will do this in the order as they appear in his letter, but first I will offer the following summary for those who have no time for long arguments:

1. I am a Justice of the Peace. I do not lie.

2. Contrary to Sr Castro’s claim that WimPen will respect judicial decisions and those made through arbitration, they have not done so. The evidence is there to prove it.

3. Club Members, and the Club Committee, are being oppressed by Onagrup, but will not yield to the power they have over us. With your continued support we will remove that power by asserting our legal rights.

4. Everything the Club Committee does is in pursuit of decisions made democratically by members at general meetings, in accordance with the Club Constitution, and is scrutinised by those members.

5. Those members who oppose the Club Committee are in the minority but are doing all they can, with the assistance of Mr Barrow and Sr Castro, to obstruct the democratic will of the majority. They will not succeed.

Is WimPen Leaving Los Claveles?

The Committee is involved in actions that would assist the Club in taking over the running of the Resort. I admit that Sr Castro may not be fully aware of some of those actions (it would not be prudent to advise Sr Castro of confidential actions at this time – legal and other) but he will be aware of some proceedings. It is true that no conversations are taking place between the Committee and Sr Castro at present. Previous attempts to open a dialogue with Sr Castro and Mr Barrow have failed and they did not answer my letters. Letters have been sent to the address published by Mr Barrow and WimPen. Mr Barrow has blocked me and other Committee members from all his email addresses, claiming that I have attempted to intimidate and defame him. This is not true as anyone who has read my letters to Mr Barrow, that I have openly shared with members on the owners’ website, will clearly see.

In my letter to members, sent with the questionnaire referred to above, I made it clear that we remained receptive to discussions.

The members’ AGM in 2015 made it clear that they voted to terminate WimPen’s contract as Administrator. This decision was accepted by Mr Pengelly on behalf of WimPen. It is Onagrup that has failed to abide by a democratic decision and continue to fully exercise the law to resist it. It cannot be right to continue to have General Meetings in the hope that eventually the decision is changed. The Club has a Constitution, which is an agreement that defines how meetings are to be convened and run. Sr Castro seeks for the Club to agree to set this aside and allow him to organise a meeting on his terms. The Committee disputes that WimPen are Club members and has no right to use 1200 proxy votes from dubious companies that no one has heard of prior to this dispute. I suggest that is one reason why Sr Castro refused to hand back the Members Register.

Legal Matters

Sr Castro continues to flagrantly disobey the confidentiality rules of Arbitration. This puts the Committee in a difficult position as we continue to obey the rules and cannot respond how we would wish. However, having taken advice I can condemn the actions of Sr Castro. I can explain the procedure which has been undertaken. The procedure is compulsory. The findings of the 1st Arbitration in Scotland were sent to the Foreign and Commonwealth Office. The document was then endorsed as a legal and binding document. This is done by the attachment of the Government stamp. The stamped document was then sent to Spain, translated into Spanish and notarised. The Arbitration document was then presented to the Superior Court in Gran Canaria. This Court received challenges to the document from WimPen and asked for it not to be agreed. The Superior Court did authorise the document and stated that this decision cannot be appealed. The Superior Court referred the award to the Arona Court in Tenerife for it to be enforced. Coronavirus has delayed matters but it will be progressed. I do not know how the Arona Court will enforce the Superior Court Order but my view is that sending in bailiffs has to be an option. On page 2 of Sr Castro’s letter he states, “WimPen will continue to manage and administer Los Claveles and will respect judicial decisions and those made through arbitration.” It must be obvious to everyone that WimPen has not respected the final and binding arbitration award made in Scotland, and the judicial decision of the Scottish Court of Session, Scotland’s highest court, to uphold that award.

In a separate legal action, the Arona Court found that it was the Committee that had the responsibility to collect maintenance fees from Club members. WimPen appealed this decision. Sr Castro’s comments on the outcome of this appeal are misleading. The Appeal Court stated that the DOA (Development Owners Association) had the right to collect fees directly from all owners for the COMMON PARTS. The Court did NOT say that WimPen could collect maintenance fees from Club members for the maintenance of Club property. It is important to note that I have written to WimPen and Mr Barrow at least 8 times asking for an invoice so that the Club can pay the DOA Common Areas charge. Not only have they not replied to my letters, Mr Barrow, as previously stated, has blocked my emails so that I cannot contact him. The Club has submitted an appeal to the Supreme Court primarily because the Provincial Appeal Court decided that WimPen can stop the use of apartments for not paying the Common Areas charge. This is clearly against Spanish Law. It remains that WimPen has no legal right to collect Club members’ maintenance fees.

Sr Castro has been warned, through his legal representatives, about disclosing confidential information in relation to Arbitration. Arbitration should be quick and cheap. It has proven to be neither.

Sr Castro is wrong to suggest that matters have been concluded. Sr. Castro criticises the Committee for holding votes on important matters even though it has been impossible for a General Meeting to take place because of the coronavirus. His criticism is unwarranted as the Club Constitution makes provision for such action to be taken.

Sr Castro and Mr Barrow have failed to acknowledge receipt of resolutions submitted for inclusion on the Agenda for the DOA AGM, and refused the Club to be able to vote at DOA meetings. They have refused to supply verbatim minutes of DOA meetings. They misled the Provincial Appeal Court in Spain by supplying the Court with their version of the minutes which were not a true and complete record of what was said and done. The Committee is confident that it has done everything possible to involve members in decision making. Sr Castro and Mr Barrow cannot say the same. Sr Castro says “It is therefore not certain whether WimPen will continue talks or liaise with the Committee or Mr Fletcher”.                          Sr Castro and Mr Barrow have not communicated and continue to refuse to communicate.

Resort Improvements

On the question of Resort Improvements, the issue here is that WimPen and Onagrup are not employed by the Club. They admit that they do not have a contract with the Club. They admit that they have not communicated with myself, as Chairman and the Club Committee. It is a matter of probity and common decency that the people who have been elected to look after the interests of Club members (the Committee) should be consulted in relation to expenditure of money belonging to Club members. WimPen and Onagrup have no authority to expend finance and make decisions on behalf of Club members. The Committee has no way of knowing if the contract for the work on the swimming pool or anything else has been dealt with correctly. Sr Castro saying that he had involved Mr Barrow in the decision making does not give us confidence. Mr Barrow is the Escritura President and represents less than 15% of the owners. In the latest Newsletter from Mr Barrow he said, “For the last 25 years a budget and expenses has been determined by the Committee in January when the fiscal year begins and the date that the budget must be established.” It is important to note that Mr Barrow and WimPen did not submit any accounts or budget to the Committee and has not done so since 2016. Mr Barrow also said, “As you know, we were unable to hold a formal DOA AGM due to the coronavirus pandemic so budgets could not be approved in the normal way”. Mr Barrow contradicts himself as he knows that the DOA cannot make decisions on behalf of the Club or the Club Committee but continually seeks to do so, which is in breach of the Spanish Statutes and the Club Constitution.

Accounts

Sr Castro criticises the Committee for collecting fees from Club members. Sr Castro ignores the Constitution that states the Committee must invoice members and collect fees. Sr Castro and WimPen have no authority to invoice and collect fees. Sr Castro states that he will comply with the law but fails to do this in practice. The Committee has a duty to comply with the decisions and instructions that it receives from members via voting undertaken democratically. If this requires the Committee to seek legal assistance then this is covered by the Constitution and decisions made by members. Sr Castro claims that €600,000 has been spent by the Committee on legal advice. This is pure fabrication. I suspect that the figure comes from what Sr Castro has spent on legal fees to keep him in control. I must honour the members’ decision not to disclose the Club’s financial situation. The members authorised this nondisclosure in the knowledge that Sr Castro was attempting to starve the Club of funds so that it could not afford to defend itself in the courts.

Sr Castro accuses me of lying when I say that ONA WimPen are taking the lion’s share of profit from rentals. Sr Castro, via Ana Martin, tried to use 1200 proxy votes at the last AGM. The votes come from companies that no one had heard of and included companies registered in such places as Morocco and Luxembourg. (7 companies). As you can imagine it has proved impossible to verify the existence of the companies. I have written to them and not received a single reply. However, we have found that at least one of the dubious companies was declared dormant and did not publish accounts. When the weeks were investigated it was found that many were owned by the Club (handed back or repossessed over many years). These weeks were traditionally used for rentals and the proceeds were included in the Club’s accounts. I suggest that these 1200 plus weeks are being rented by the companies (or by Sr Castro on their behalf) and someone other than the Club is enjoying the proceeds.

ONA WimPen have not submitted any financial information to the Committee and there are serious concerns over the accounting and auditing of the income from the “Cancelled Weeks” which have been taken from the Committee and allocated to the above companies without the permission of the Committee.

Sr Castro talks about retaliation. It has not been denied that if a Club member pays their annual maintenance fee to the Committee, as required by the Constitution, that they will be refused access to their apartment unless they pay WimPen again in cash on arrival at the Resort. Some members have been threatened by Sr Castro, by letter, stating that if they do not pay ONA WimPen they will take their weeks from them. Sr Castro has not denied that the Resort Manager cut off the electricity supply to an owner who refused to pay them and was held captive in the apartment, frightened that if they left they would be evicted. Sr Castro has not denied that he denounced the Club President and myself as criminals, falsely accusing us of fraudulently taking funds from the Club. He has not denied the horrendous treatment of the Club President at the hands of his hired thug of a manager at the resort, and what she had to endure when imprisoned at the Police station as a result. The President had to return to court in Tenerife where the case was dismissed for lack of evidence (the details of this can be found on the Club Members website as shown below).

The Future

Sr Castro says that there should be a meeting of all owners. Sr Castro has refused to return the Register of members. The Committee would love to be in a position where all the members can be properly validated. It is the Committee’s responsibility to validate and contact all members. I call on Sr Castro to return the Register of members without delay. I call upon Sr Castro to enter into meaningful discussions, preferably without an army of lawyers, to answer my letters and to convince Mr Barrow to remove the blocks on email communication.

Once again I ask the question, why does Sr Castro refuse to accept the legal position in that he does not have a contract as Administrator for the Club? Why has he spent in excess of €600,000 in legal fees in order to stay in control of Los Claveles? Why has Sr Castro organised the control of 1200 weeks to use at a General Meeting?

The Committee has received many comments and endorsements from those connected to time share resorts. They say that they admire the determination of Club members and the Committee for their resolve in assuring justice against a powerful organisation that can afford to spend large amounts of money employing lawyers to put down any opposition to their plans. Mr Castro has asked that I produce names of Resorts where the owners are dissatisfied and been threatened. These are a few that come to mind: Ogisaka Gardens, Ona Campanario and Club Cala De Mar. Members may of course do their own research.

Onagrup’s actions at Los Claveles in refusing to accept the democratic decisions of Club members and attempting to bully them into submission in order to remain in control speak for themselves. Comparisons with other former WimPen resorts are irrelevant. The oppression of Club members rights at Los Claveles is plain to see, and Club members will continue to fight it in order to determine their own future.

Sr Castro and Mr Barrow appear to be using coronavirus as a weapon saying the Committee are not concerned about safety. This is total nonsense and unbelievable. However, we have to acknowledge that this dispute existed before coronavirus and that the Committee will not be phased by anything, including the coronavirus.

The Committee do not believe that it is safe to visit the Resort and the restrictions in place would not make it enjoyable. This is a personal decision for members to make.

Everything that I have said can be verified from the numerous reports and legal documents that are registered on the owners’ website https://www.losclavelesowners.eu

Working in your best interests,

Albert Fletcher

Chairman, and on behalf of the Committee