|Chairman’s New Year Message, January 2019|
|I thought it prudent to look back over the last year (and a bit beyond) so that you can see the full scope of how far the Club has progressed with the difficulties imposed upon it. I will then give a vision for the future.|
In September 2017 the Club held an Annual General Meeting at which around 970 Club members participated. I quote from that meeting:
1. Veranne Wilkinson, Chief Executive of Hutchinson Trustees said “As you are aware, it has been a very challenging year for your Committee, whose perseverance and ongoing commitment to the Club has led to some very positive results, further to the Arbitration process.” Veranne went on to say “We have been liaising closely with your Committee Chairman over the last 12 months in readiness to take over the trusteeship, and whilst further legal procedures are in progress in order to implement such change, we hope to be in a position to become your Club’s Trustee in the very near future”.
2. Carol Parkinson, Club President reported on behalf of the Committee. Carol clarified that the contract with WimPen came to an end, on WimPen’s admission, on 3 May 2017 and Hiro Bulchand was the Administrator of the Club. Members were obligated under the Constitution to pay their maintenance fees to the Club. WimPen were attempting to force members to pay their fees to WimPen and this was illegal. WimPen have been going onto the RCI database and blocking owners from using their weeks. RCI was allowing this to happen.
3. The President advised that the Chairman had written to Mr Pengelly (then the President of the DOA) asking for a proper account of the Development Owners Association and an invoice for the Club’s contribution. No reply has been received. The Club believes that WimPen are holding €800,000 in balances (85% belonging to the Club).
4. Mr Gordon V51, W23 stated that he was forced to pay WimPen on arrival. He paid by credit card and subsequently complained to the credit card company. He received a full refund from the card company because he was forced to pay a fraudulent payment.
5. Roger Lindsay, Committee Member reported on the Arbitration. This included everything from the Committee Meeting held in March 2015, where notice was given to terminate the WimPen contract, to the present day. The Arbitrator had ordered WimPen to hand back Club property and the Member Register. WimPen had appealed. The Committee made clear the intention to publish the full Arbitration Award as soon as the Club’s solicitors confirmed that we would not be breaching confidentiality rules. Roger stated that it was necessary to take action in Spain and this was being pursued.
6. Mr Boyd stated that he was an Escritura owner and he supported the Club taking action against WimPen/Onagrup. At the Escritura Meeting the voting was rigged by Onagrup and they gave themselves a new 3 year contract. This was exposed by the good work of the Chairman at that meeting.
The Annual General Meeting held on 28 April 2018 included:
1. Participation from around 900 members’ votes.
2. Approval of the previous minutes.
3. Paul Motion, Partner in BTO Solicitors acting for the Club in Scotland, reported to themeeting. Paul stated that the Arbitration was complete. WimPen had taken the Arbitration to Appeal and lost. The situation remains that WimPen has been ordered to return all of the Club’s property, including money and the Members’ Register. It was also confirmed that WimPen did not have a contract to provide services to the Club. Paul noted that WimPen were still not complying with the Arbitrator’s Orders.
4. Hiro Bulchand, Club’s Administrator and Legal Advisor in Spain addressed the meeting. Hiro confirmed that the Constitution was Scottish and the result of the Arbitration had to be honoured and enforced in Spain. This was progressing. Hiro also confirmed that WimPen, who say that they are acting Administrator, have no right under Spanish law to deny access to an owner and insist that they pay them prior to occupation. The matter was in a Spanish court. WimPen had been written to and a decision was awaited.
5. Carol Parkinson, Club President reported on the issue of Certificates. The system was explained. The Committee had a duty to issue certificates on application for Club membership. All delegations to WimPen were withdrawn in July 2015 and also WimPen no longer had a contract with the Club from 3 May 2017. This meant that all certificates issued by WimPen from these dates were regarded by the Club as illegal. WimPen and their sales representative Steve Cowell had been notified and warned not to issue any further certificates. Carol then stated that a process was in hand to exchange certificates for legal ones issued by the Committee.
6. The Chairman drew attention to evidence that had come to light that WimPen had issued certificates to various companies and tried to use those votes for this AGM. At the 2015 AGM WimPen used 176 votes that they said they owned but they tried to use 1201 votes based on the certificates they had issued to these companies. (Investigations have found that some of these companies are based in Morocco, Luxembourg and Andorra. We have not yet been able to trace the directors).
7. Opposition Group. The Chairman stated that he was aware of Mr Barrow’s activities on behalf of a small group of supporters. The Chairman was of the strong opinion that they were working on behalf of, and sponsored by, WimPen. They have admitted that they are in regular contact with Mr Castro.
8. Unfair Dismissal. The Chairman reminded the meeting that Salvador (Manager) and Reception staff had been dismissed from the Resort. The staff had settled out of Court receiving compensation. Salvador’s case went to a tribunal. Salvador won his case.
9. Financial Report. Roger Lindsay, Committee Member gave a comprehensive report.
10. Voting at meetings of the Development Owners Association (DOA). The following resolution was carried and AGREED:
“This meeting is concerned about the lack of representation at meetings of the Development Owners Association. It therefore authorises the Club Chairman or his proxy to vote on behalf of the Club members at DOA meetings. All of the Club members’ votes for certificates of use, in excess of 4,000, are to be used by the Chairman for the benefit of the Club. The Chairman is also authorised to use the voting capacity to call a meeting of the DOA whenever deemed necessary by the Committee”.
Further issues in 2018
In May a meeting of the Escritura and DOA was called by WimPen in Mr Pengelly’s name as President. Mr Castro (Chief Officer of WimPen and Onagrup) took control of the meeting, including all the arrangements. The Club was not invited. Some members of the Committee who also own Escritura attended along with myself as I had an Escritura proxy.
The undemocratic and illegal abuse of rules was witnessed firsthand. It is a long story but in short:
• Mr Barrow was elected as President for 3 years.
• WimPen was voted a 6 year contract
• Myself and others present were constantly interrupted by Mr Barrow and not allowed to speak on many occasions.
Mr Barrow stated that the Club had no voting rights. This meant that Mr Barrow and WimPen/Onagrup were voted into office by the Escritura Community, which represents less than 15% of the Resort, with the majority of votes cast in the hands of WimPen. In fact, when the actual votes were counted they were elected by less than 2% of the whole community of owners at the Resort. There is a full report of this meeting in the hands of the Club’s Administrator, Hiro Bulchand, and this will be dealt with in due course.
Mr Barrow, in the name of DOA President, has continued to instruct WimPen to demand payments from Club Members (WimPen have admitted receiving this instruction) and to refuse Club members access to their apartments.
Mr Barrow has headed a campaign against the Club and its officers assisted and sponsored by WimPen/Onagrup.
Mr Barrow continuously states that he is receiving advice and support from WimPen/Onagrup and their lawyers.
Mr Barrow regularly states that your Chairman is lying to you, and that the Committee and the Club are in the wrong.
Spanish Court Cases
You will have seen reports on the owners’ website regarding two specific cases.
On December 5th at 12.20 I was in Court in Arona. This was an action taken on the Club’s behalf by your Administrator and legal adviser, Hiro Bulchand. This was to stop WimPen taking money from owners and preventing access to apartments. WimPen did not put up any defence to the allegations. They simply stated that they could not be held to blame as they were wrongly prosecuted. They stated that they were only the Administrator and they took their instructions from Mr Barrow as President of the DOA. In short, it should have been Mr Barrow that was prosecuted.
A week after the trial (very quick in Spain) the Judge gave his decision. WimPen’s arguments were refused and the Club won the case. The Judge ordered that the Committee was the correct body to collect maintenance fees from Club members. The full translation of the Judge’s findings is on the owners’ website. I, as Chairman, was advised by Snr Bulchand to advise members that if WimPen continued to disregard the Court decision then WimPen will be in contempt of Court. It is my view that, if Mr Barrow continues to advise members to pay money to WimPen and continues to allow WimPen to collect money and prevent access to apartments, then Mr Barrow will be in contempt of Court and personally liable (although I suspect Wimpen/Onagrup will pick up his bill).
Mr Barrow has stated that he is independent. If anyone can find evidence of this please let me know.
A few days after the above success I received the Court judgment regarding the Arbitration enforcement. This was dealt with in a Higher Court. The Result: Three judges unanimously found WimPen’s Arguments to be flawed and enforced the Arbitration in its entirety. Please do not believe me, just visit the owners’ website and read the judgment for yourselves. The nitty-gritty of enforcement (sending in the bailiffs etc) has been delegated to the same court as the first case in Arona. We hope to get the same judge.
Mr Barrow has openly stated that he has spoken to WimPen and their lawyers and they are continuing to defy the Court. Mr Barrow is now saying that he cannot instruct WimPen as the Administrator. This is somewhat of a turn-around. The job of the DOA President is to instruct the Administrator. Mr Pengelly dismissed the Manager and Staff when he was the DOA President. Why is Mr Barrow there at all, one may ask? It is certainly not to uphold the law.
The next 12 months
We are aware that WimPen/Onagrup have taken steps to calculate the money that is owed to the Club. This is welcomed and we will have to wait a few weeks to see how this develops. It appears that WimPen are continuing to ignore the Court Order to stop demanding money from Club members. To be fair, I suggest we give them a couple of weeks for the court judgements to register with them and for them to see the light. If WimPen/Onagrup continue to disobey the law then the Club will take whatever enforcement action is recommended to us by our Administrator and legal advisor.
Compensation for members who have been disadvantaged by WimPen/Onagrup will be a high priority along with compensation in general for the Club.
Serious consideration will be given to:
– The removal of Mr Barrow as President of the DOA by legal means, and also court action for inciting members to disobey the law (contempt of court)
– The removal of WimPen and Onagrup by legal means
– The taking back of all Club weeks that we believe have been stolen by WimPen/Onagrup and given to dubious companies for use by WimPen as proxy votes.
Winning the case against FNTC, who have supported WimPen/Onagrup throughout, is a priority. We are requesting the Scottish court to order the transfer of trusteeship to Hutchinson. (You will recall FNTC were sacked 6 years ago).
I expect to see a very busy but fruitful 2019 and a return to normality with the Club regaining control of its apartments. The unfair treatment of members at the hands of WimPen must come to an end.
Very Best Wishes for 2019,
Your Chairman, on behalf of the Committee and devoted volunteers