What are nab and its lawyers doing?

It would seem that the culture and business practices at nab leave a lot to be desired as proven by just three of many examples:
1. There is a petition on ‘change.org’ which highlights the culture of harassment by both nab and its lawyers, especially against people at a special financial disadvantage. In this case it seems nab and its lawyers [Gadens] are harassing their victim and are determined to sell the house of that victim just to satisfy their own seemingly rabid need for foreclosure at any financial or human cost;
2. In an article written about nab and Gadens by journalist Tess Lawrence she said, “Without question, the police should investigate how and why lawyer [Nab’s lawyers – Gadens] made .. a phone call .. and on what authority and on what grounds .. saw fit to interfere with the course of Justice ..” and, from another lawyer during the same case when addressing the victim in a public hallway, “You’re dead” .. “you f…ing bitch”. “The NAB and I will take you down”… “You will have nothing, you will be destroyed”. Charming.
3. In our case, after considerable maladministration and misfeasance, Nab acted unlawfully with extreme harassment and assaultive malfeasance by cancelling all our financial facilities, including our mortgage, and taking great delight in threatening to sell our home within 30 days – all without due cause. The Financial Ombudsman Service agreed with us and found nab’s acts unlawful and awarded contract restoration, damages and compensation. However, we believed the quantum to be insufficient so we are pursuing nab through VCAT. This has been going on for over 3 years with nab losing their ploy to have the case dismissed or shifted to the Supreme Court [which would have been a huge financial disadvantage to us] whilst employing nasty little tricks like delivering reams of documents the night before a hearing [twice] guaranteeing we had no time to read them, let alone understand them. In this instance and once again nab was found to have failed to have acted in a conscionable manner when the Judge agreed that nab’s actions were inappropriate.
As I said, these 3 examples are but 3 of many and clearly point to a culture within nab which has grown, to be what many victims consider, unconscionable and indeed ferrel.
At the heart of this culture is nabs continual refinement and reliance on their terms and conditions, developed at great expense by their teams of lawyers, which purport to give nab extreme power to do what they like and to whom they like. All three examples above clearly point to this malfeasance. In our case [example 3] it was indeed unconscionable malfeasance as nab knew its acts to be unlawful but ignored the law.
I purport that just the act of including terms and conditions nab knows are unlawful and to be read down are unconscionable in themselves.
The key question is, “Can an action or intention to action be deemed as unconscionable if that act or intention is against good conscience but as yet has no victim”. The corollary is that there is no unconscionable intent until someone is affected? [Has the tree fallen if no one sees it fall? – note, yes the tree has fallen!]
Take for example a contract and in the fine print there is a clause which stipulates that one party has the right to terminate the contract if they ‘deem’ any issue they wish a breach of that contract and the contract becomes null and void without loss of benefit to the author of the contract.
An obvious nonsense yet that is a standard term for nab. As a matter of fact, any contract which can be broken at will for no reason is not and can never be a contract because no one could rely on that contract. That is why a lawful process to break a contract is legislated – for example S88 and S89 of the National Credit Code.
Now let’s assume, in the normal run of events, that nab is in a strong position with services in demand and people needing those services. People sign off the contract including the ‘deeming clause’ because they have little choice. Say a mortgage or a credit card contract.
At what point and under what circumstances does the enforcement of the deeming clause become unconscionable and do we even need an enforcement to recognise the term as unconscionable and to be read down?
I believe that it is enough to make such clauses unconscionable even if there is no victim just because it may confuse, coerce and mislead people into believing it is valid. This sort of clause has the obvious intent of doing just that by advantaging the author unconscionably at the expense of others.
Take nab. They have similar deeming clause in their terms and conditions which allows them to summarily terminate an agreement and demand instant repayment of a loan. Yet there are provisions within the Code of Banking Practice, the Australian Consumer Law and the ASIC act which specifically preclude nab from actioning their deeming clause without due process.
So, on one hand we have nab with their deeming clauses and alleged cancellation rights and we have the law on the other stopping or at least modifying the same alleged rights.
As nab is well aware of the law and well aware of the way their deeming clause is inappropriate then isn't the unlawful inclusion of such a clause, by definition, unconscionable because the intent of the clause is to take unconscionable advantage - even if it’s never acted on!
Therefore the precursor to any litigation is whether or not the deeming clause is unfair because the intent of nab is unconscionable.
I would say that any clause which purports to allow one party to just deem a contract null and void to someone’s disadvantage must be read down as it would be unconscionable to leave it there.
Now let’s assume, nab acts on the deeming clause and we have a victim. Mr Victim had a credit contract and was using his ‘card’ for everyday things and accumulating frequent flyer points and paying his monthly commitments. He was late a couple of times but fixed the arrears and all was well and Nab were still charging lots of interest for the privilege. Then someone from nab decided to deem the victim’s card cancelled and the victim had to repay the entire debit within a few days because that’s what the deeming clause said.
This put the victim instantly in a state of special financial disadvantage for at least two very important reasons. Firstly, he had to find the money elsewhere to pay the loan [if he could] and secondly he had relied on the line of credit and instantly had no other immediate access to money to live on or pay bills. In effect he had relied on nab acting conscionably and in compliance with all parts of the law.
Mr Victim complained but nab just pointed to the deeming clause as justification for the cancellation. Nab was well aware of the law but chose to mislead and coerce the victim into believing they had the right.
Now, not only is the deeming clause unconscionable but nab acted on that clause in the full knowledge of its effect on the victim. Therefore the act is also unconscionable as it caused Mr Victim to lurch into a state of special financial disadvantage.
I believe Mr Victim has an actionable case against nab on at least two grounds. Firstly, nab included such a clause with obvious unconscionable intent to mislead and coerce and secondly, nab acted on it outside the known provisions of law.
I would say that pecuniary penalties apply for both inclusion and act and the victim needs to be compensated.
In the article written by Tess Lawrence [example 2] it seems clear that there is a culture within nab and its lawyers of ‘f..k you, nab will take you down, you will have nothing, you will be destroyed and we will do what we like including trying to influence the legal process when we want’. In my opinion nab’s conduct in this instance is common assault and should be treated as such.
The culture within nab and its lawyers of condoning these sorts of actions is thoroughly objectionable to any reasonable person. In our case, nab have been found guilty of unlawful acts to our disadvantage by the Ombudsman and yet nab still condone and continue with similar conduct which still can only be described as unconscionable.
Nab know that 99.99% of people will not question a multi-national company because they believe nab’s published terms and conditions are lawful and that nab must have a right to do what they do because it has teams of lawyers and they couldn’t fight them in any case. In our case this assumption is incorrect.
We are seeking more than justice for us. We are seeking an independent umpire [Judicial member at VCAT] to order that the terms and condition which purport to give nab ultimate power are unlawful and to be read down.
In this way people are able to rely on their ongoing financial contract, rely on nab complying with the law and rely on that same law to define a lawful process for voiding a contract and to also stipulate penalties for non compliance.
Perhaps nab need to change the way they think.
Jon Langevad
Tuesday, 7 October 2014