Club Los Claveles And Others Against First National Trustee Company Limited
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2022] CSOH 6 |
| Docket Number | A281/17 |
| Date | 20 January 2022 |
| Court | Court of Session |
| Published date | 20 January 2022 |
OUTER HOUSE, COURT OF SESSION
[2022] CSOH 6
A281/17
OPINION OF LORD CLARK
In th e cause
(FIRST) CLUB LOS CLAVELES, (SECOND) ALBERT FLETCHER,
(THIRD) ROGER LINDSAY, AND (FOURTH) NORMA ANN BURSTON
Pursuers
against
FIRST NATI ONAL TRUSTEE COMPANY LIMITED
Defender
Pursuer: Barne QC; BTO LLP
Defender: O’Brien QC; Turcan Connell LLP
20 January 2022
Introduction
[1] The first pursuer is an unincorporated association named Club Los Claveles
(“the club”). In terms of its constitution, the business of the club is managed by a committee.
The thr ee other pursuers are individuals who say that they are on the club’s committee.
Members of the club hold timeshares in properties in a resort known as Los Claveles, in
Tenerife. The properties are owned by five companies, set up for that purpose. The
constit ution of the club provides that the shares in the five companies require to be held by
an independent tr ustee. The defender was appointed as the independent trustee. A dispute
2
arose as to whether the defender’s position as trustee had come to an end. The pursuers
seek a declarator to th at effect along with decree of specific implement and certain other
orders. Th e defender contends that the individuals named in the instance are not members
of the committee and hence that the pursuers do not have title to sue. It is accepted by the
defender th at if the pursuers do have title to sue the orders sought should be granted, but
subject to certain qualifications. The matter called before me for a proof before answer.
Background
Factual background
[2] The Los Claveles timeshare resort in Tenerife was established in 1990 and comprises
of villas and studio apartments. The club members hold timeshare weeks in 85% of the
properties in the resort. From around 2011, the costs and role of the defender as trustee
began to be discussed at various meetings. A change of trustee came to be considered.
The club’s constitution empowers the club’s committee to delegate certain roles to a
management company. In 2012, Wimpen Leisure Management SA (Wimpen) acted as the
management company. The managing director of Wimpen wrote to the defender on the
club’s behalf on 23 May 2012 giving notice of the termination of the defender’s appointment
as trustee. On that date, Hutchinson & Co Trust Company Limited (HCTCL) signed a
trust ee appointment document as the replacement trustee. On 22 June 2012, the defender
expressed its disappointment but said that it would appoint solicitors to deal with a deed
of retirement. The defender requested a payment of £9,500 in relation to the anticipated
expenses of terminat ion and transferral. Payment was made. At a combined annual general
meeting (AG M) held by the club and other organisations involved in the resort in June 2014,
it was recorded that th e contract with the defender had been terminated and a new trustee
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