"The Trustee’s prime responsibility is to protect the interests of the timeshare purchaser, by ensuring that good title to the use of the timeshare weeks is held by the Developer and transferred, on sale, to the Purchaser. By extension, this principle can also be applied to the protection of the Marketer of a project. A Deed of Trust is signed, which provides the Trustee with the rules and guidelines for the operation of its day to day activities, and outlines the control over the rights to use the timeshare apartments which is vested in the Trustee. This control can take many forms, the choice of which is normally left to the Developer. The one over-riding factor is that the control must enable the Trustee to confirm to the individual Purchaser that their legal rights to use will be respected, no matter what happens to the various parties in the future. In some countries the concept of trust is not well developed, but the combination of UK Trust Law with the property laws of the country in which the resort is situated, provide a system with huge benefits to Developer, Purchaser and Marketer. The Trust Property is protected from the demise of the Trustee by English Law, whilst any Purchaser’s funds held by the Trustee are protected both by the Professional Indemnity Insurance and by the "
"Independent Marketers Developers selling through independent marketers can offer the Marketer and his client security, whilst protecting the developers own position. The Trust System can be adapted to prevent the situation that has arisen in the past whereby a Developer has lost many hundreds of thousands of dollars to an unscrupulous Marketer."
"5. The acceptance of the Project Documentation in its final form (including the Purchase Agreements) should be one of the developer’s first priorities, in order that the Trustee can proceed with the arrangements for printing of same. Under no circumstances can sales be permitted to commence until such documentation has been agreed between the trustee and the developer and signed accordingly. 6. The developer will be required to provide various documents as outlined in the Trustee Questionnaire. On receipt of these, a lawyer will be appointed by the Trustee to undertake the legal procedures necessary in transferring the apartments into trust, and the estimated charges of the lawyer so appointed by the Trustee, will be notified to the developer. It is usual for the lawyer acting for the Trustee to liaise directly with the developer’s lawyer in all matters relating to the transfer of title, however, it is not permissible for the Trustee and the developer to appoint the same lawyer."
"By extension, this principle can also be applied to the protection of the Marketer of a project."
"In some countries the concept of trust is not well developed, but the combination of UK Trust Law with the property laws of the country in which the resort is situated, provide a system with huge benefits to Developer, Purchaser and Marketer."
"The only substantive issues we have outstanding are all associated with the legal protection of purchaser interests. Specifically we need to have addressed by the developer how to guarantee the rights of purchasers to use the property in accordance with their purchase agreements, regardless of events which might otherwise inhibit or prohibit the enjoyment of those rights."
"We will also need a lease over the properties concerned or an assignment of the existing leases, for the period being timeshared. The details of the lease or lease assignment have not been finalised, though I do not envisage any major problem in this area. Finally, the lease or its assignment will have to be notarised locally."
"If you remember, you kindly provided me with copies of your leases and their extension. The first step in the process is to identify which units are involved and under which lease they are held. I also note that there is a further payment due on 2010 (in gold) in respect of one lease extension. By my calculations this is not a huge sum of money, but we do need to take account of it in our discussions."
"A. The Vendor owns the Exclusive Rights of Occupation at a Resort known as Peninsula Beach Club ("the Resort") where it is intended to secure for the Holiday Owners Exclusive Rights of Occupation of certain fully constructed and furnished apartments at Jalan Pertama, Tanjung Benoa, Bali, Republic of Indonesia, for specified periods each year, with other ancillary rights of use, while Exclusive Rights of Occupation are or will be owned by charged or leased to registered or vested in the name of Peninsula Beach Club Title Ltd, a limited company incorporated in England, ("the Owning Company"), the sole members of which are the Trustee and/or nominees of the Trustee or Custodians. B. The Rules of Occupation of the Resort provide that the Trustee shall use its best endeavours to keep the respective Apartments free from any mortgage, lien or encumbrance and to ensure that nothing is done which might prejudice the Exclusive Rights of Occupation of the Apartments by the Holiday Owners until the Termination Date."
"I know that by now you will be virtually ready to commence sales and marketing, but I felt I should emphasise to you that without at least a couple of units in trust we will not be in a position to issue certificates etc. Also you may well be aware, that Interval International are awaiting confirmation from ourselves that apartments are in trust before they can finalise all their documentation."
"Since I wasn’t able to reach you, this subject is the purpose of my call. I know Lynn is still away, but we still have one very major issue which must be resolved before we can allow Villa Lalu to be marketed and sold. To date, despite several inquiries from me to Lynn and to Peter Hutchinson, it appears none of the Villa Lalu units have been put into trust. Until this happens, I can’t release marketing materials to Peninsula and can’t authorize them to begin offering the Interval International exchange program. I have spoken to Peter Hutchinson about this matter on several occasions and he assures me all necessary documentation to implement the trust has been sent and explained. The ball now is in Villa Lalu’s court to get the trust put in place (at least for some of the units) so sales may commence."
"1. Although I notice the appointment of trustee document has been signed, I am unable to ascertain if the Deed of Trust document has been signed/returned/if necessary. Please advise. 2. The locally notarised assignation of the leases into trust? There is a sample document pertaining to the Batam View Hotel, Batam. As this has been faxed through by your office I assume it is a suggested wording. I expect I shall have to reword the particulars, make an Indonesian translation and have both copies notarised. Is this correct? 3. We will need to put into trust at least one unit of each description prior to commencing marketing. What are the machinations of this? There does not seem to be any relevant documentation. 4. The scheme documentation? There are copies, several in some cases, of various documents, namely; rules of occupation, attached schedule, the holiday certificate, schedule of apartments, calendar of weekly periods, the purchase agreement and purchase agreement conditions. Once again I am unable to ascertain the status of the above. Roger and Alan Thomas have offered their assistance in the completion of this matter and I expect they will be in touch in the near future. 5. The lease extensions. Is it compulsory that these extensions be fully paid up before the leases be assigned or can some mechanism, whereby sufficient funds be set aside from Villa Lalu sales income or maintenance fees by yourselves, as trustees, to cover this outlay, be instituted. Once again we are liaising closely with Roger and Alan of PMI to resolve this matter. I believe Roger will be telephoning your office later in the day to discuss this point."
"As you know, we are trying to keep together probably the best sales and marketing team in the Far East so time is pressing on us. I should be grateful if you would advise I.I.’s Rick Choate as soon as you are satisfied that your requirements are being fulfilled."
"Thank you for your fax of 14 September to which Angela has given an initial reply. As mentioned to Roger on the telephone, we have sent a fax to lawyers locally to get things moving with regard to the assignment of the lease, and we will look to them to confirm that the wording of the Assignment Documentation is adequate. Certainly, there will need to be an authorised Indonesian translation, and the copies will have to be notarised as you suggest. As I understand the situation, Villa Lalu is held under more than one lease, and therefore it makes sense to assign either the whole resort or at least the whole of a lease at one time. If the latter option is adopted, we must take account of the access question if the lease being assigned is not at the front of the resort, and does not include the key common areas. If for no other reason the transfer of all the leases is therefore preferable, though I realise there may be other criteria to take into account. With regard to the Project Documentation, we will need originals duly signed together with the company stamp, but I think it also worthwhile our sending a couple of bound copies incorporating the hand written alterations. With regard to the cost of the lease extension, I think the most ideal modus operandi for all concerned, is for us to collect the maintenance charges and deduct an agreed sum on an annual basis to go towards the renewal. I will also be studying the wording of the extension criteria and be reverting to the lawyer on the subject. Our charges for the collection of the management fees are 5%. We would need confirmation of the acceptance of this proposal urgently as the alternatives are very long winded and will delay matters. I trust this answers all your various outstanding queries."
"We now have faxed copies of the Project Documentation, duly signed with the originals on their way to us, and hence from that point of view, all the relevant documentation is in place. There remains the transfer of the lease into trust. We have approached local lawyers to implement this with all haste and will keep you informed."
"Mr Choate is requesting that we forward a copy of the deed of trust to him in Singapore accompanied with a list of specific units that have been placed in trust. In my previous fax of the 14th Sept. I stated that I don’t have documentation relevant to this procedure. Have you forwarded it directly to the lawyer along with the lease assignation papers? Or does the assigning of the leases suffice? We would initially place a minimum of one unit of each description into trust. As regards the lease extensions, we will pay these out upon Lynn’s return from Europe, now scheduled for Mon. 21st. The question of instituting an arrangement for this from the maintenance fees was only meant as a temporary facilitation so we could proceed in his absence."
"Thank you very much for the insurance information concerning public liability insurance for Villa Lalu and for allowing Peter Hutchinson to forward copies of the completed trust documents to me. Based upon both, I am very pleased to give you and PMI the "green light" to proceed with marketing and sales."
"As per the leases both landlords have agreed that we can buy back the years used and a deposit has been placed with the balance due by31st January 1999 . I hope that arrangement satisfies you as I need all the available money we have to develop the land (4700 M2) adjacent to the southern side of Villa Lalu."
"I am afraid I do not quite understand your new arrangement with regard to the two leases on Villa Lalu. Does this mean that effectively by 31 January you will have a new lease of 25 years from that date, without any interim payments? If so, it is certainly acceptable from our point of view, though we could not issue any full certificates until the new/revised lease were assigned to us, (presumably in January). This notwithstanding, I am not sure how Interval will look upon this with regard to finalising the enrolment. Normally, they expect confirmation from us, first, that all the legals have been completed. Perhaps you could clarify the position for me."
"Villa Lalu now has a deposit on both the land leases. Both landlords have agreed that Villa Lalu can pay the balance by31 January 1999 . Villa Lalu will do so by instalments This means both land leases will be brought back to 25 years plus a five year option. In my presence Mr Tom Waddell has just spoken by phone to Mr Rick Choate re the above subject and he has given his approval of it. I hope that this now sorts out the land leases problem and Villa Lalu will make every endeavour to buy back our used years long before the31 January 1999 due date (like as soon as PMI gives us some money!!!!) I do not foresee such a situation, but if Villa Lalu doesn’t generate the land lease money by the due date you have my personal assurance that I will break one of my term deposits to complete the deal."
"As per the leases both landlords have agreed that we can buy back the years used and a deposit has been placed with the balance due by31 January 1999 ."
"I am afraid I do not quite understand your new arrangement with regard to the two leases on Villa Lalu. Does this mean that effectively by 31 January you will have a new lease of 25 years from that date, without any interim payments? If so, it is certainly acceptable from our point of view, though we could not issue any full certificates until the new/revised leases were assigned to us, (presumably in January)"
"We now have faxed copies of the Project Documentation, duly signed with the originals on their way to us, and hence from that point of view, all the relevant documentation is in place."
"There remains the transfer of the lease into trust. We have approached local lawyers to implement this with all haste and will keep you informed."
"The Defendant continually represented from the16 September 1998 that: (a) It was happy or content for the Villa Lalu development to be marketed under the auspices of the Hutchinson Trust Scheme; (b) It had therefore carried out sufficient checks to ensure that the development was safe to market – i.e. that it was a "
"The question in any given case is whether the nature of the relationship is such that one party can fairly be held to have assumed a responsibility to the other as regards the reliability of the advice or information. I do not think that such a relationship should be found to exist unless, at least, the maker of the statement was, or ought to have been, aware that his advice or information would in fact be made available to and be relied on by a particular person or class of persons for the purposes of a particular transaction or type of transaction. I would especially emphasise that to my mind it does not seem reasonable to attribute an assumption of responsibility unless the maker of the statement ought in all the circumstances, both in preparing himself for what he said and in saying it, to have directed his mind, and to have been able to direct his mind, to some particular and specific purpose for which he was aware that his advice or information would be relied on. In many situations that purpose will be obvious…. I would think that it must almost inevitably follow, once the maker of the statement is aware of a specific purpose for which his information will be used, that he will also have in direct contemplation a specific person or class of persons, even though unidentified by name."
"This scheme protects the rights of occupation of the individual owner…."
"I said that between us we have two choices, to go ahead with the trust arrangements or to wind up the trust."
"It was the Defendant’s practice, as explained to the First Claimant, that the said Trustee Appointment agreement and Deed of Trust were in standard form (subject to amendment to meet the individual requirements of the resort owner/developer) and signed and executed as a preliminary to the appointment of lawyers by each party to advise on the establishment of the Trust arrangement which would normally include the vesting of a lease over or title to timeshare property whether land, buildings or both, in an Owning Company, in whatever form was required by local jurisdictions. Alternatively, if there was such an implied term, it accurately represented Indonesian law at the time, namely that the said companies, being incorporated in England, were capable of owning or having vested in them title under lease to the land or buildings comprising the Peninsula Beach Club."
"a generally accepted approach that in the absence of such implementing regulation and the diminishing significance of the adat law in certain modern societies (which in the metropolitan area could be a rise of various adat laws), we could refer to the provisions of the Civil Code to fill in the void or the gap between the different adat laws, with the condition that such provisions must be expressly agreed by the parties and incorporated in the lease agreement" (paragraph 59.2) In his oral evidence, Mr Teo accepted that this was his opinion, rather than a generally accepted approach. He also accepted that there was no support in any cases for his approach, although he indicated that there was some support in scholarly works not specifically referred to in his report. He was clear in his oral examination-in-chief that because there were no regulations implementing article 44 of the BAA, which deals with hak sewa, the provisions of the BAA as regards hak sewa were not yet in force and it was not yet possible to create or hold the land title of hak sewa provided for by the BAA. He referred to article 50 (2) of the BAA which provides: "
"In order to guarantee legal security the Government shall conduct land registration throughout the territory of the Republic of Indonesia according to provisions laid down by Government Regulation."
"The placement of…hak sewa for building on hak milik…can be registered if it could be evidenced with a deed prepared by the Land Deed Official authorised in accordance with the prevailing laws and regulation."
"states that hereby he has transferred and assigned the lease to the second party and the second party states that hereby he has received the transfer right but not the obligations."
"Commencing the validity of the Deed all land described above together with the buildings and facilities which have already been constructed…has been transferred and assigned to the second party as the trustee pursuant to the Deed of Trust dated 23-07-1998."
"The essence of a claim in defamation is that a person’s reputation has been damaged; it may or may not involve the loss of a job or economic loss. A claim that a reference has been given negligently is essentially based on the fact, not so much that reputation has been damaged, as that a job, or an opportunity, has been lost."
"In the present context the two causes of action are not primarily directed at the same mischief although they, admittedly, overlap. I have already indicated that an action for negligence is concerned with the care exercised in ascertaining the facts and defamation with the truth of the contents of what is published. This is also demonstrated by what would be the respective approaches to damages in actions based on defamation and negligence. In the case of defamation the primary head, but not the only head, of damages is as to the loss of reputation. In an action for negligence, on the other hand, the subject of the reference will be primarily interested in and largely limited to his economic loss."
"Negligent harm to reputation may give rise to both liability for negligence where it occurs within a special relationship causing economic loss, and for defamation which provides wide protection irrespective of fault but subject to a web of defences designed to protect freedom of speech."