TERMS OF ENGAGEMENT

Agreement

These standard terms will apply except where we have otherwise agreed with you in writing.  You accept and agree to these standard terms by continuing to instruct us.

             

Scope of work

We will represent and provide advice to you on all legal matters that properly fall within the scope of your instructions to us as set out in our engagement letter. 

 

Fees

Our fees will be fair and reasonable and as set out in our engagement letter.  Under the Law Society’s Rules of Conduct and Client Care for Lawyers, the following factors are to be taken into account in determining the reasonableness of a fee:

  • The time and labour expended;

  • The skill, specialized knowledge, and responsibility required to perform the services properly;

  • The importance of the matter to you and the results achieved;

  • The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;

  • The degree of risk assumed by us in undertaking the services, including the amount of value of any property involved;

  • The complexity of the matter and the difficulty or novelty of the questions involved;

  • Our expertise, reputation and ability;

  • The possibility that the acceptance of the particular retainer will preclude our engagement by other clients;

  • Whether the fee is fixed or conditional (whether in litigation or otherwise);

  • Any quote or estimate of fees given by us;

  • Any fee agreement (including a conditional fee agreement) entered into between us;

  • The reasonable costs of running a practice;

  • The fee customarily charged in the market and locality for similar legal services.

 

Where our legal fees are calculated on the basis of the time involved, the fee will reflect the hourly rates of the advisors involved at the time the advice was provided.

 

While we do not normally give estimates, any estimate is given as a guide only and not as a fixed quotation.  If we need to revise our estimate, we will advise you of the reasons for the revision, and we can also inform you periodically of the level of fees incurred or inform you when fees reach an agreed level.

 

Disbursements and Third Party Expenses

In providing legal services for you we may incur disbursements and payments to third parties on your behalf.  You authorise us to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the legal services requested.  You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the legal services requested (which may include items such as experts’ costs or counsel’s fees).  These will be included in our invoice to you, shown as “disbursements” when the expenses are incurred (or in advance when we know we will be incurring them on your behalf). 

 

Office Service Charge (Administrative expenses)

In addition to disbursements, office services are charged at a minimum of 2.5% of the legal fee charged, to cover office costs which are not included in our fee and which are not recorded as disbursements. These include items such as photocopying and printing, postage and phone calls.

 

Billing and Payment

Invoices may be issued on a monthly basis and/or on completion of a matter or termination of our instructions.  Goods and Services Tax (GST) or any similar taxes will, if applicable, be charged and payable in addition to the amount of any fee. 

 

Invoices are payable from the date of the invoice, unless alternative arrangements have been made with us. 

 

  • You authorise us to deduct our fees and other expenses from funds held in our trust account on your behalf on provision of an invoice to you, unless those funds are held for a particular purpose.

  • If your account is overdue we may:

    • require interest to be paid on any amount which is more 14 days overdue, calculated at the rate of 2% above the overdraft rate that our firm's main trading bank charges us for the period that the invoice is outstanding;

    • stop work on any matters in respect of which we are providing services to you;

    • require an additional payment of fees in advance or other security before recommencing work;

    • recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.

  • Payment may be made  by direct credit to our trust account, the details of which will be contained in the invoice.

 

If you have any questions about our accounts or statements you should, in the first instance, contact Dennis Graham, Lynn Pettit or Simonne Walmsley here.

 

Third Parties

Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.

 

Counsel’s Fees

If in the course of acting for you we instruct a Barrister, as Counsel on your behalf, in the event that we are liable to the Barrister for any fees incurred, you will immediately make payment to us of the amount charged upon request by us.  Our normal arrangement with any Barrister however is that they account to you c/- us, but look to you for payment of their fees.  In the event of non-payment of Counsel’s fees, they may request us to pursue payment in whatever way is necessary, including without limitation the issue of proceedings against you.

 

Confidentiality

We will not disclose any confidential information obtained as a result of acting for you unless you authorise us, or we are required by law, to do so or unless disclosure of that information is in accordance with the Law Society’s Rules of Conduct and Client Care for Lawyers.

 

Personal Information and Privacy

We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.

 

Verification of Identity

The Financial Transactions Reporting Act 1996 requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence together with proof of address, such as a utility bill). We may retain copies of these documents.  We may perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which legal services you have requested relate as we consider to be required by law.

 

Conflict

If a conflict of interest arises in relation to any matter on which you have instructed us, between your interests and those of any other client for whom we are acting, we will contact and consult with you as soon as possible, taking into account the requirements and procedures in the Law Society’s Rules of Conduct and Client Care for Lawyers.

 

Contact Details and Electronic communications

We will obtain from you contact details, including email address, postal address and telephone numbers.   You will advise us if any of your contact details change.

 

Unless otherwise agreed with you, we may provide documents and other communications to you by email (or other electronic means).  These communications can be subject to interference or interception or contain viruses or other defects.  We do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused in connection with the use of any electronic communication.

Cyber Fraud

There is a significant risk posed by cyber fraud, specifically relating to email accounts and bank account details. Please check our trust account details with us verbally before making any payments into our trust account. We will not accept responsibility if you transfer money into an incorrect account.

Files and documents

You authorise us (without further reference to you) to destroy all files and documents for this matter (other than any documents that we hold in safe custody for you) seven (7) years after our engagement ends, or earlier if we have converted those files or documents to an electronic format.

 

If you uplift your files or other documents at any time, we may take copies of them at your cost and require you to pay any outstanding invoices before they are uplifted.

 

Termination and assignment

Either of us may terminate our engagement at any time by notice in writing to the other.  The enforceability of this agreement is not affected by termination or by any change to our partnership.  All fees and disbursements up to the date of termination are payable by you.

 

Duty of Care

  • Our duty of care is to you and not to any other person.  We owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the legal services requested by you or who may rely on any advice we give, except as expressly agreed by us in writing.

  • Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

  • Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by third parties.

  • Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.

  • Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.

 

Trust Account

We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.

 

  • Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.  We will require a telephone number from you for audit and account verification purposes.

  • Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989, subject to your having completed to our and the bank’s satisfaction any request for information relating to the deposit or certification required by the bank, in terms ofAnti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML Act”). Interest earned from call deposits, less withholding tax [and an interest administration fee payable to us of 5% of the gross interest, will be credited to you. 

 

Compliance

  • We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):

    • AML Act laws; and

    • Laws relating to tax and client reporting and withholdings.

  • We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin acting, or to continue acting, for you until that is completed.

  • To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties such as government agencies. There may be circumstances where we are not able to tell you or such persons if we do provide information.

  • Please ensure that you and/or any of the persons described previously are aware of and consent to this. It is important to ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.

 

Limitations on Our Obligations or Liability

To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with the legal services requested by you is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.

General

  • These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.

  • We are entitled to change these Terms from time to time.

  • Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.