Former Arrow Hotel owner Dana Hemingway points to proof he sold the business as a going concern to Arrowtowners Mark Samways and Ken Wimsett, so therefore they have to honour all forward bookings.
The latter, who very soon after taking over the hotel on-sold it to an Auckland company who bought it on a vacant possession basis, say they never intended running it as an accommodation business — and say their vendor knew this.
They maintain Hemingway’s knowingly continued taking bookings, and is just trying to discredit them.
However, Hemingway says he’s not to blame for subsequent bookings made, for example, through Airbnb, as he lost control of that account on settlement day last month.
He’s adamant Samways and Wimsett need to refund stranded guests due a clause headed ‘forward bookings’ in the sales and purchase agreement, which both parties initialled: "The purchaser acknowledges there are forward guest bookings for the Arrow Hotel accommodation business which the purchaser agrees to honour and be bound by."
"Clearly," he says, "the purchasers have not honoured this."
He says neither he nor his lawyers nor his real estate agent "received any communication that they would immediately close the hotel".
He references another part of the contract, again initialled by both parties, stating: "Business sold as a going concern."
As for pre-paid guests being turned away, "I’m very very sad that guests are being treated this way.
"I hope Arrow Hotel Ltd [Samways’ and Wimsett’s company] will step up and solve the situation they created ..."
Hemingway also refers to their accountant saying in an email to his lawyer: "On settlement there was an amount of $40,156.52 advanced to Arrow Hotel Ltd [AHL] as ‘accommodation deposits’."
He tells Mountain Scene: "This confirms AHL has the money."
Samways and Wimsett, however, maintain they’re still waiting for a schedule detailing all forward bookings and payments made.
If they received that, they’d be able to consider refunding stranded guests, they say.
Their accountant tells Hemingway’s lawyer: "My client [AHL] has no information and has access to nothing that can substantiate who or what these accommodation deposits are for.
"There should have been a crystal clear schedule included with the settlement, which was asked for several times."
They also maintain Hemingway knew a long time ago they’d planned closing the hotel, after what turned out to be a very protracted settlement process.
Samways: "We bought the business but not his company, there’s a big distinction."
Wimsett: "What the vendor should have done is a week or two before settlement he should have stopped taking bookings and sorted out all of his accounts and his booking portals.
"Therefore he would have been able to give a detailed schedule to us and honour his sale and purchase agreement with that condition, and he hasn’t been able to do that."
Hemingway says his ResBook calendar booking system was active for five days after settlement.
"This was five days for Wimsett and Samways to take over ResBook if they wanted to."
After that he emailed ResBook, asking it to immediately block all new bookings.
He tells Scene their accountant acknowledges they have the money, "so the question is why would I withhold the information to restrict [the] refund of guests?"
"The answer is there is no scenario where I would prefer Wimsett and Samways to retain the money over it being refunded to guests.
"This makes no sense."
