Santorini

Gods and Troglodytae muse within slingshot on beautiful Santorini.  Gods languish on the caldera whilst cogitating cave dwellers peer out of their carved doors on the, far far side.   However the third, and often overlooked, species is the humanoid identified by their unique method of encasing dangly bits.  These interlopers in the realm of the Gods maintain their omnipresent force by threatening and indeed scaring the cleaner than clean Gods and their somewhat scruffier and hairy nemesis, the Troglodytes , by displaying their bodily armour for all to revere.

Everyone watches the sunset, including the undies, in Santorini.

Photo and original words by Jon Langevad

FINANCIAL CONTRACTS WITH THE BANKS

Does anyone know why the banks seem to be able to vary standard financial contracts at their absolute discretion yet deny borrowers the same rights? This includes the ability to cancel any contract at will - for no given reason.

I always thought that a contract was a binding agreement on both parties to continue with that agreement until the terms of the contract naturally expired either through time or some other form of completion - a mutual obligation. In this way each party could rely on whatever benefit they subsumed from the contract and each other.

For example, Mr and Mrs Bloggs bought a home with a 20 year mortgage calculated to enable them to pay off the house and live comfortably.  The bank benefited from fees and interest - as clearly defined within the contract. At some point the bank arbitrarily changed its lending policy and decided to call the Blogg’s loan without reason.  Nothing to do with the Bloggs and their loan performance - just a new policy by the bank.  The Bloggs couldn’t  refinance and had to sell their home in a depressed market and lost a great deal of money whilst the bank got all its interest and termination fees.  Perhaps unjust enrichment?

Justice?  I don’t think so and it brings up a number of questions.

If a party to a contract has the ability to cancel a contract at will, was there a contract in the first place? I thought a contract was something which both parties could rely on for some mutual benefit for the natural life of that contract. If one party can vary the terms of the contract or ‘change the agreement’ at will then surely there was no ‘agreement’ in the first place?

This is obviously a nonsense yet all banks include ‘terminate at will’ clauses into their standard form contracts whilst ignoring the whole concept of expectation damages or damages wrought by breach of contract in that the injured party I thought had a right to ‘expect’ a contract to go full term and if that is truncated by the other party then they are entitled to expect damages equivalent to the benefit they would have received if the contract had gone the agreed distance?

Secondly, as far as I understand it, there are many provisions in many acts which specifically preclude the alleged rights of banks to unilaterally and unconscionably vary contracted terms including S12BH (1)b of the ASIC Act. It seems the law is clear so how come the banks can and do ignore those legislated provisions?

Thirdly, why do the banks include such terms and indeed rely on them when pursuing innocent borrowers?  The only reason I can think of is that banks feel the need to misrepresent their actual ability to breach a contract through a form of unconscionable coercion. It seems they ‘coerced’ Mr and Mrs Bloggs into believing that they had to sell their home even though the bank knew full well that they did not have the right and that the Bloggs had little financial or legal knowledge and that they could not deal with a gaggle of lawyers from a multinational telling them through ‘official’ legal letters that they had to sell their home.  The Bloggs were not capable of dealing with the banks self adduced phalanx of power and the banks knew it and indeed depended on it!  Surly this is misrepresentative and unconscionable coercion at its worst?

Recently we have been in a situation where we have had to take three different banks to the Financial Ombudsman Service [FOS] for what I considered legal and contractual breaches even though each bank incorporated within the standard terms and conditions their ability to ignore the law and basically do whatever they liked.  We have won all three with each bank found guilty of breaching the code of banking practice.  They were forced to rectify their actions and pay damages.

 

But key is that for FOS to make this determination it must have read down the bank’s own published terms which stated that the bank could in effect do what it likes.  That term and its implied power was read down and discounted by FOS as a legal body using the intent and practice of the law.

Yet, those sorts of clauses are still very much a part of standard form contracts.

My question and dilemma is – ‘How can banks publish terms and conditions with impunity which obviously breach the law knowing that those terms are indeed ‘unfair’ and will confuse the average borrower to the advantage of the bank?’  Surely, this is ‘unjust enrichment’?  The banks know that 99.99% of people will just accept the banks terms without question just because they are a bank with lots of lawyers and as a consequence must be right.

Perhaps they aren't right?

Opera [house] in Melbourne ..

I wish to thank the Sydney Opera House Trust from a Melbournian’s perspective for their decision to downgrade and make Bennelong restaurant more 'accessible'. 

That pesky Frenchman created a beautiful multi-hat restaurant called Bennelong within our national icon.  A first class affair befitting its status.  Guillaume Brahimi, being  that pesky Frenchman, sought to create something special in the space as has Ducasse who leads the restaurant Jules Verne within Paris’s Eiffel tower.  Little compromise in either ‘wonders of the world’.

However, Australians it seems, according to the opera house trust, want an ‘accessible’ venue similar to the dozens of cafes and restaurants in the immediate vicinity. 

The Utzon hating Ryan Committee of yesteryear seems reborn – ‘don’t bother to create something really special because us Australian’s just want pub tucker – no need for that smancy stuff – just give us another café/bar’.

Nothing special or world leading, just average so us average people can go there and feel, well, average.

As Sydney does not seem to appreciate how to deal with ‘first class’ I wonder if we could shift the opera house to Melbourne where we would indeed laud the brilliance of Utzon and create a world class experience decidedly away from average.

This is not a slight on the successful van Haandels and we wish them well but my question remains, ‘Do we want yet another café / bar and importantly, do we want it in our one-off wonder of the world?’

My thanks, as a Melbournian, to the trust for downgrading Sydney.

Mr Tony Jones and the producers of Q&A …

I have said for some time that Q&A should be required viewing for anyone over 15.  However, it seems that the power of the 'lowest common denominator' talk show is starting to take over from intelligence.  Tony, on Lateline I thought you were a trifle arrogant and self serving but you positively shined on Q&A.  No joke.  As a host and moderator you were great.  But now it seems that your personal biases and perhaps Q&A's producers are letting the side down. 

You have an opportunity to delve into and debate real issues of national strategic importance yet you succumb to drivel such as the $1k Prime Minister Abbot repaid.  Unfortunately, it took an international guest to tell you the story was and is unimportant.

Tony, you and Australia are better than this.

It is up to you to steer the discussion away from minutia and curb most of your guests predication to talk forever, but in a manner showing respect and one which befits a moderator in Australia’s most important ‘discussion’ show [as distinct from talk].

Tony, please remove your personal labour predilection and indeed the labour parties mandate to focus on simple minded issues AND remove both parties desire to air 5 second cheap shots.  Last Monday you were rude to MP Hunt accusing him of ‘political diatribe’ yet when Ms Ellis and Ms Benjamin rattled on about very little and without focusing on the point you said nothing.  Why?  It also was indeed obvious that Mr Sheridan had lost it with both you and Ms Ellis because she was virtually out of control and you did nothing.  His was the voice of reason where, as moderator, you should have stopped Ms Ellis.

Indeed, Mr Shorten was also the voice of reason a couple of weeks ago.  He had to put you in your place when you tried to involve his mother in law.  I have a lot of respect for Mr Shorten and his ability to focus on important issues without distraction on minutia.

Mr Jones I am a liberal voter who worries about Prime Minister Abbot as our representative on the world stage but as a country we must support both him to move into his ‘statesman’ role and his /our government to succeed.  It IS NOT your role to either try to create news or to give voice to stupidity or to create sedition through unrest and biased coverage.

It IS your role to bring Q&A back to THE pre-eminent ‘discussion’ show focusing on matters of national importance rather than ‘talk show’ minutia.   Sure, address the current issues but leave the unimportant to commercial channels. 

You decide the questions which will be asked and answered - so please let’s raise the bar.

Good discussions,

Jon Langevad.

Virgin Vs People - Read down to Virgin's response

We returned from Bali to Melbourne last Wednesday night on the Virgin ‘red eye’ leaving Bali around 10pm and arriving around 5am on Thursday.

We flew what is euphemistically known as ‘cattle class’.  Virgin unfortunately took this description as a mandate to treat people as just that – cattle.

I am just over six foot and I had ‘zero’ leg room with my knees pressed hard against the seat in front.  Surly this is against health and safety regulations because the only way I could get into or out of my seat was to drop in sideways using the seat in front as support.  No leg room means no movement, cramps and the increased possibility of deep vein thrombosis and swollen ankles.  The gent next to me tried to put on support socks but the only way he could achieve this was to literally stand on the seat.  He was well into his sixties.

The chocolate mousse and the pasta on the way over were inedible as was the chicken casserole and the ‘sweet’ bread roll on the return flight.  Why do Virgin proffer this rubbish when there is so much cooking talent in Australia capable of producing great ‘airline’ food?

For a night sleeping flight there were no blankets, no entertainment and seats which reclined all of about two inches and being literally jammed in.  Unable to move, the bloke next to me farted all flight, the one in front was constantly and loudly cleared his sinuses and a woman two people away threw up several times during the flight. Cattle.

When the ‘fasten seat belt’ sign came on staff locked down the cabin and allowed no-one to move from their seats including going to the toilet.  Strange that this lockdown occurred just prior to meal service on both flights and was rescinded just after service.  Could it be that staff are using the seat belt sign to make their job easier?

Attitude by staff was appalling.  When the meal or drinks trolley was pulled and pushed up the isle there was no thought for tired jammed in people with an elbow in the way remembering as the cart came from behind one cannot see the approach.  Twice I was hit by the cart with no apology.  It seems staff think they have a mandate to treat people as cattle.

But, by far the worst example of Virgin’s systemic attitude towards clients was when my partner went to join the toilet queue prior to landing.  After 10 minutes creeping up the line she was about to enter the toilet when the male staff member told her that there was no time for her to go to the toilet and to return to her seat.  The fasten seat belt sign did not come on for another 5 minutes.  This is insane and shows quite clearly what Virgin staff think of their customers – cattle.

Facilities, service and importantly, staff attitude was and is appalling.

Virgin should be paying us to suffer this sort of treatment.

Virgin’s response from Katharine Molloy  with my comments in red …

Dear Mr Langevad,

Firstly, thank you for your feedback and taking the time to let us know of your recent experience.

After reading through your feedback, I would like to take this opportunity to offer my sincere apology for any disappointment you felt with our Economy class and In Flight experience on your flight from Denpasar to Bali. May I suggest that the disappointment I felt was caused by Virgin – there is a direct cause and effect. Do not try and distance yourself from blame.

Firstly, our cabin crew are trained to provide outstanding customer care on board at all times and as we take great pride in our team members, it is concerning to read of your dissatisfaction with the level of service provided. As such please rest assured  your individual comments have been distributed to the relevant Cabin Crew managers, this will enable them to provide further training and coaching where necessary. It is not enough to blandly say that your staff are trained when it is very obvious that they are not.  You cannot take pride in rubbish.  Telling the managers has nothing to do with the service I was provided – it may affect future customers but I still suffered at the hands of incompetent staff and as I paid for and expected reasonable care and attention, Virgin failed and did not provide the product for which I paid.  If I may make a suggestion, never use the phrase ‘rest assured’.

It is also with regret to learn of your disappointment regarding the lack of In-Flight Entertainment (IFE), poor quality meals and restrictive seat dimensions. We strive to ensure all of our guests have an enjoyable and pleasant experience with us so it is with concern to learn this was not the case for you on this occasion. Once again, my disappointment was caused through Virgin providing rubbish food and not providing even barely adequate leg space.  This is a failure to provide a product for which I paid and I believe dangerous.

Mr Langevad, to clarifying, regrettably IFE is not always guaranteed on our aircrafts, is stated in our terms and conditions on the Virgin Australia website and is also noted and agreed to at the time of booking. Fine.

I can also advise that we are constantly reviewing our product offering in order to improve our services. Your feedback in regards to seat dimensions and unsatisfactory meals has given us key areas of focus in order to enhance our guest's experience and your comments will be taken into consideration when developing further enhancements to our product offering.  I am sorry to say this Katharine but this is banal crap.  I am not trying to enhance your guests experience, I am telling you that the experience I received was well below par and I believe dangerous.

I do hope you give us the opportunity to welcome you back on board one of our flights in the near future, and provide you with the high standards of service we pride ourselves on. Katharine, I paid for and expected a level of service and amenity consistent with advertised parameters.  I did not receive that and hence expect a refund.  I have already published my complaint on Trip Advisor and my blog.  To even say that you have high standards which you pride yourselves on is insulting to us and does indeed show a lack of care or indeed even an intelligent response.

As I said, Virgin has failed to deliver a merchantable product which I paid for.  For this I expect a refund.  Secondly, I expect Virgin to offer more than banalities.  I find your supercilious attitude insulting and appalling given the seriousness of the complaint.

I am publishing my continuing findings and involving the relevant authorities.

Kind regards,

Katharine Molloy [Virgin]

ASIC / FOS / TIO / ACCC / CCMC

There is a tendency for all the regulators and interventionists to hide behind 'the – must be followed - process' and from a complainants of view it is frustrating.  I have read the various acts and try to understand the respective charters as 'regulators etal' and I try to understand each department not wanting to get involved in single disputes.

However, it IS those single disputes which seem to point to systemic and endemic issues.

ASIC have taken some flak recently about not acting on vital issues. [Commonwealth Bank] when early intervention could have saved millions.

The cases I have reported to ASIC [and are current] against banks all revolve around banks ignoring provisions of ASIC, ACCC, ACL and CCMC.  These issues are both systemic and endemic and effect millions of people.  Yet ASIC do nothing.

The inclusion of 'unfair terms and conditions' by the banks is prevalent, with them relying on obviously illegal clauses breaching many acts telling their customers they must comply. This is gross misrepresentation.  It’s actually worse because they will not put anything in writing rather relying on call centre staff to issue verbal threats which the customer is not allowed to record the conversation.  Dodgy?

Secondly, they ignore provisions of the NCCP particularly at S72, S88 and S89.  ALL the banks with whom we deal ignore the law yet ASIC don't do anything.

Lastly, I have a case against nab at FOS waiting for determination with nearly 2 years of 'must be followed process' by FOS.  ASIC, CCMC and ACCC refuse to become involved until FOS make a determination.  This is stupid when there is an obvious dysfunction and where a combined approach could expedite the matter and create systemic change.

In our current  case, nab have clearly breached legal requirements and continue to do so at our expense and I dare say at the expense of a few hundred thousand other so called 'customers'.

Yet ASIC seem reticent to do anything instead relying on its own 'must be followed process'. 

With one particular case at FOS for nearly two years you can imagine what I think of their process.  I have been quite direct.

ASIC's website indicates it will take action yet it doesn't happen?

Change does NOT take years – people take years to create change.  There wouldn’t be private enterprise if we took years to make a decision. 

May I suggest a little bit of strategic change management within the regulators etal would benefit our society.  Delays cost money and effect people’s lives in a very dysfunctional manner and - life is indeed finite.  Unlike FOS, TIO, ACCC, ASIC and CCMC the rest of us do not have years to wait for someone to do something. 

Presuming we are going to keep having requests for intervention, and maybe at an increasing rate, we need to create the changes necessary to expedite quality solutions.  Strategic change, resource allocation and people with the desire to protect society from illegal acts in an appropriate time frame.  People who don’t mind pursuing the wrongdoers – publicly and quickly.

Process is only a tool to create action – it is not a change agent in itself or an excuse for not doing anything.

Jon Langevad

Gender Politics

Federal Government – Question time and the gender ‘card’..

It is only fools and idiots who attack the person rather than the behaviour.

Men and women are not equal!  And, thank God for that.

Women think differently and do some things better - and that is a good thing.

Men think differently and do some things better - and that is a good thing.

The world would be a sad place without both sides of thought.

I have run project teams all over the world and have always attempted to maintain a 50/50 gender split.

One is like water and the other sand.  Individually strong in some respects but also easily moved aside.  You can easily move water aside and kick sand into the air but, mix them up in the right proportions and ‘they’ become a strong and resilient force.  Yet sand and water together remain separate, identifiable and unique - not homogenous but working together to become that force.  A partnership

Apart from remaining unique the second criteria is respect where that respect is a God given right for everyone.  Without necessarily agreeing, respect each other and respect each other’s opinions.  It’s actually quite easy and cathartic to assume you will like and respect someone before you meet them!

Perhaps our political leaders need to learn to enjoy our differences and the inherent strength of working together.

Jon Langevad

TERMS AND CONDITIONS

It seems that banks and commercial leasing agents and business brokers and probably anyone with a pen and disregard for the law include in their many and various contracts, terms and conditions which are clearly in breach of various acts.  

When pressed on the phone they quote these conditions endlessly espousing that they are ‘published’; presumably with the thought that mere publishing gives them credence.  They obviously ignore their illegal nature.  This would seem to be gross misrepresentation with the employee and the company being joint and severally responsible.

When it comes to the crunch these illegal conditions will be read down and be as if they were not in the contract but the question remains. “Why are companies including terms and conditions in their contracts they know are illegal and quoting them over the phone as binding?”  There can be only one reason and that is to confuse the customer through a misrepresentation of the facts.

The customer loses money and time forcing companies forcing them to comply with the law.

It seems that the regulatory bodies like ACCC, ACIC and ACMA ignore this practice so to protect myself I now publish my own terms and conditions which Banks, Estate agents and Business brokers Etal [BEBE] must comply just because I have published!  Just 6 of the 7,312 as an example …

1. All BEBE’s must immediately answer my phone calls with a real person with no menus to navigate;

Fine .. 100 Penalty units

2. All BEBE’s must instigate training for all employees to make them realise that we are the customer and that they are not doing us a favour;

Fine .. 100 Penalty units

3. All BEBE’s will accept anything I request, do and say as law and will action any requests forthwith;

Fine .. 200 Penalty units

4. All BEBE’s will immediately remove any confusing, illegal and misrepresentative term or condition and immediately subjugate themselves to my 7,312 published [elsewhere] Terms and Conditions remembering that they must be legal because I have published them. [Keep in mind that even though ‘elsewhere’ is somewhat obtuse and confusing does not mean you can ignore them]

Fine … 300 penalty units

5. All BEBE’s agree that we may change any or all terms and conditions at any time without your consent or knowledge or acquiescence and they still must comply without reservation:

 Fine … 400 Penalty units

6. All BEBE’s agree that any phone communication may be recorded by us for litigation purposes and that may not do the same; 

Fine … 400 Penalty units

Penalty unit = $195 to be paid into my personal ‘collections’ account [the collections department is specifically enabled to collect fines from BEBE’s]

Jon Langevad

CHANGE OF GOVERNMENT

We all from time to time focus on minutia rather than the big picture because it’s easy and allows our addled brains a respite against life’s major challenges.  Golf is the perfect ‘escape’ as it requires absolute concentration on hitting a very small white ball and blocks out all other issues affecting our lives.  The golf driving range is positively therapeutic.

This is a necessity for us mere mortals but I question as to whether or not it is appropriate for our Government to continually focus on relatively small issues rather than platform our country into a strategic future as a world player.

Our leaders should be galvanising our country towards a common ‘world’ future yet what we see is continual bickering over minutia through somewhat cringe-worthy  behaviour as demonstrated every day in Parliament and picked up by the media in sound and video ‘bites’.

There is no doubt that the current Federal Government has lost people’s confidence through a litany of economic, financial and human mistakes.  Mistakes which should not have happened at this level with so many smart people ready, willing and able to analyse, plan and action an almost mistake proof Government.

Our country will engender a change in Government in September because we have lost faith; and for good reason.

But, to what?

Where are the people we can rally behind to drive our country.  People such as Hawke or Fraser who were/are statesman and did indeed represent  Australia with charisma and leadership.  Orators of some skill able to garner opinion and turn it into something positive.  The skill-sets of Obama, Thatcher, Clinton and Blair are awe inspiring and as world leaders are able to create change by unifying their nations.

No one in their right mind would agree with everything they did but there is no doubt they delivered for their respective countries.  Hawke, when we won The America’s cup was fantastic, because he almost single handed expressed what we were all feeling – a slightly larrikin pride in our country as Australians.  He had the ability to galvanise all political persuasions on the big issues, such as whipping those pesky Americans, and he did it with grace and humour.  Read some of Menzie's speeches to see similar statesman humour and listen to the power of Obama when he speaks.

We will elect a new lot in September and we will expect better Government yet I wonder whether or not we will get the leadership our country really needs.

The bickering minutia set is on all sides of politics with everyone playing the media game of the 5 second destructive sound bite.  The Prime Minister with her misogynist attacks was perfect for a 5 second destruction as was Abbot’s Julia the liar campaign.  Unfortunately both were rubbish and did and have tarnished both ‘leaders’ with a 10 year old bully mentality of low intellect.

Politicians try to excuse this behaviour by saying that parliament debate is vigorous .  Vigorous is hitting a white ball, debate is supposed to be intelligent, intellectual and demanding of logic and clear thinking.  Now think of question time.

We are better than this.

Mr Abbot will be our next prime Minister leading our country into a strategic future.

The question is, ‘Can he remove himself from the minutia set and rise above dysfunctional behaviours and become the leader and statesman we all want and need’?

At the risk of trivialising this issue watch Rowan Atkinson move from bumbling idiot to ‘becoming’ Johnny English the secret agent in seconds.  A transformation with obvious links to Mr Abbot.

Goodwill in life and business

One of the most misunderstood concepts in business concerns our perceptions of ‘Goodwill’.

Perhaps good will means that one thinks good things about someone else and we ‘will’ our positive thoughts and actions so that others get warm and fuzzy - just from our mere brain waves.  Nice!

On the other hand, perhaps it’s how we view ourselves through someone else’s eyes?  Perhaps we have spent years being nice to someone so that they in turn think good things about us?  In this case we have spent time and effort doing whatever it takes to make others think nice things of us.  Good!

For example, families and friends take real work to remain family and friends and dare I say the development of mutual goodwill is a key ingredient.  The bonus is when all of a sudden those obviously recalcitrant family dropkicks respond with equally magnanimous gestures, we have indeed developed goodwill and the world is a joy and we bathe in those esoteric warm and fuzzy self gratifications.

This is also the case in business.

We spend time and effort and money convincing others that they should spend their discretionary dollar with us and not that horrible bloke down the street.  In effect, we are developing goodwill.

In rather blunt terms - in business and in life goodwill can be defined as that ….

“Intangible benefit of reputation relative to that benefit being of value to another party.”

When this applies to a business the ‘goodwill’ component is the value of the reputation of the business.  This may result in increased revenue and may even result in long term benefit.  We hope!!

On the contrary, an empty premise has no goodwill from clients but may have a measure of ‘value’ based on its location, neighbours, etc.  However, a premise in distress has negative goodwill because its reputation has been sullied.  Logical, really.

When selling a business, goodwill is not an accounting sum associated with excess earnings.  Whilst accountants will want to put a quantifiable figure on goodwill, there is far more involved.

For a business sale, there can never be guarantees of future income streams because there are a myriad of factors outside of the control of the seller to even be able to logically or legally guarantee. Therefore, excess earnings as a determinant of business value is a nonsense.  It is merely one factor of many.

When buying a business, of far greater value is the way in which customers view their relationship towards the premise, its reputation and indeed their willingness to continue that relationship without having to rebuild a reputation from scratch or far worse, from a negative.  Bloggers as real and vitriolic customers have changed the face of goodwill in business – for the better!!

In essence, goodwill boils down to the willingness of people to continue a relationship with the new owner.  The business may have great excess earnings but has just blotted its copybook by poisoning the neighbours.  On paper it’s worth dollars but in reality worth squat because of the salmonella cookies.

When buying a business the only consideration is, ‘can I be successful ‘.  To do that the value of committed clients is crucial and has a dollar value.  That value cannot be logically calculated albeit bloggers have made that much easier by their transparent and public opinions.

But then, every blogger may love a certain business but it still doesn’t work for whatever reason.  May I say that the value of the goodwill is still strong and doesn’t change but the overall business value is mitigated by a straight revenue valuation.

So, goodwill is esoteric, unknowable and incalculable yet it has value because it means customers will come and try the new person in the new business.  A head start on bankruptcy.