Club Los Claveles, Albert Fletcher, Roger Lindsay, Terry Smith And Walter Farquhar Against First National Trustee Company Limited
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2019] CSOH 66 |
| Date | 29 August 2019 |
| Docket Number | A281/17 |
| Court | Court of Session |
| Published date | 29 August 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 66
A281/17
OPINION OF LORD ARMSTRONG
In the cause
CLUB LOS CLAVELES, ALBERT FLETCHER, ROGER LINDSAY, TERRY SMITH and
WALTER FARQUHAR
Pursuers
against
FIRST NATIONAL TRUSTEE COMPANY LIMITED
Defender
Pursuers: Anderson; BTO Solicitors LLP
Defender: Thomson QC; Turcan Connell
29 August 2019
Introduction
[1] The pursuers are Club Los Claveles (“the Club”), and the chairman and three
members of the Committee of the Club. The Club is an unincorporated association, the
object of which is to secure for its members the ownership of exclusive rights of occupation
of certain apartments at the Los Claveles Resort in Los Cristianos, Tenerife. It was
established by its Constitution, dated 5 April 1990, subsequently amended in July 2014.
[2] The Constitution of the Club provides that an independent trustee must be
appointed to hold certain property, including the whole issued capital of “the Owning
2
Companies“. “The Owning Companies” are: (1) Los Claveles (One) Limited (Company
No SC120346); (2) Los Claveles (Two) Limited (Company No SC120452); (3) Los
Claveles (Three) Limited (Company No SC120638); (4) Los Claveles (Four) Limited
(Company No SC120618); and (5) Los Claveles (Five) Limited (Company No SC121089). By
a Deed of Trust, dated 5 April 1990, Royal Bank of Scotland Limited was appointed as the
Club’s first trustee. That Deed of Trust forms part of the document, of which the
Constitution also forms part, bearing to have been amended in July 2014.
[3] The defender is a company incorporated on the Isle of Man. By Deed of Retirement
and Appointment between Royal Bank of Scotland Limited and the defender, dated 21 May
1991, the defender assumed office as trustee.
[4] In about 2012, the Club wished to appoint a new trustee in place of the defender. To
that end, a letter dated 23 May 2012 was sent on behalf of the Club to the defender,
indicating the intention of the Club to terminate the defender’s appointment as trustee, with
effect from 1 December 2012. The defender instructed the drafting of a Deed of Retirement,
Appointment and Conveyance, one object of which was to effect the appointment of
Hutchinson & Co Trust Company Limited as the Club’s then proposed new trustee. That
deed was never executed. The pursuer has called on the defender to transfer relevant
property, held in trust, to Hutchinson & Co Trust Company Limited. No Deed of
Retirement, Appointment and Conveyance has yet been executed.
[5] For these purposes, on the basis that nothing was indicated to the contrary, I have
proceeded on the basis that, notwithstanding any amendment of the Constitution and Deed
of Trust, in July 2014, those of their terms which provide for regulation of the position
between the parties are those which were operative as at 23 May 2012. That approach is
consistent with the references made to them in the pleadings and in argument.
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