Terms of Engagement
These Standard Terms of Engagement (“Terms”) apply in respect of all work carried out by us for you, except to the
extent that we otherwise agree with you in writing. If you continue to instruct us after receipt of these Terms you are acknowledging your acceptance of these Terms.
1 Services
1.1 The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing).
1.2 In order to provide you with efficient advice and services and to provide the most cost-effective service, it may be that part or all of your instructions will be delegated to other professionals in our firm.
2 Communications
2.1 We will obtain from you contact details, including email address, postal address and telephone numbers. We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.
2.2 We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.
3 Financial
3.1 Fees
3.1.1 The basis upon which we will charge our fees is set out in our engagement letter.
i If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the Services. Work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
ii Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work are set out in our engagement letter. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff. Time spent is recorded in six-minute units. Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable. In determining the fee, the following will be taken into account:
- The time spent
- The skill, specialised knowledge and responsibility required to perform the services properly.
- The importance of the matter to you, the result achieved and value of the transaction.The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you. The degree and risk assumed by us in undertaking the services including the amount or value of the property involved.
- The complexity of the matter and the difficulty or novelty of the questions involved.
- The experience, reputation and ability of the members of our firm working on your matter.The possibility that the acceptance of the particular instructions will preclude employment of us by other clients.
- Whether the fee is fixed or conditional.
- Any quote or estimate of fees given by us
- Any fee agreement entered into between you and us.
- The reasonable costs of running our firm.
- The fee customarily charged in the market and locality for work similar to yours.
3.1.2 Unless otherwise stated all fees are plus an office services charge, GST and disbursements.
3.1.3 We will provide for you an estimate upon request. If that estimate is likely to be exceeded, we shall let you know.
3.1.4 Where it is applicable, you may wish to apply for legal aid. In the event that legal aid is not granted, you will be liable for our account charged in accordance with the above clauses.
3.2 Disbursements and third-party expenses
In providing services we may incur disbursements or have to make payments to third parties on your behalf. You authorise us to incur these disbursements (which may include search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the Services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services (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. We may require an advance payment for the disbursements or expenses which we will be incurring on your behalf.
3.3 Office Services
In addition to disbursements, we will charge an office services charge of up to 10% of our fee to recover some of our office overheads and to recoup some of the LINZ licensing levies and additional work to comply with AML rules for customer due diligence (CDD).
3.4 GST (if any)
Our services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our fees and charges at the rate of 15%.
3.5 Invoices
We will send interim invoices to you, usually monthly and on completion of the matter, or termination of our engagement. We may also send you an invoice when we incur a significant expense.
3.6 Payment of accounts
3.6.1 Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us.
3.6.2 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.
3.6.3 If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
3.6.4 If your account is overdue, we may:
i require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 12.5% above the overdraft rate that our firm’s main trading bank charges us for the period that the invoice is outstanding;
ii stop work on any matters in respect of which we are providing services to you;
iii require an additional payment of fees in advance or other security before recommencing work;
iv 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.
3.7 Fees and disbursements in advance
We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. We may do this, on reasonable notice, at any time. You authorise us to:
i debit against amounts pre-paid by you; and
ii deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.
3.8 Estimates
You may request an estimate of our fee for undertaking the Services at any time. If possible, we will provide you with an estimate (which may be a range between a minimum and a maximum amount or for a particular task or step). An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate excludes GST, disbursements and expenses.
3.9 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 if the third party fails to pay us.
3.10 Personal Guarantees
If you are instructing the firm in your capacity as a director or shareholder of a company, or as a settlor or trustee of a trust or executor or administrator of a trust, then you remain, at all times, personally liable (along with the company, trust or estate) to pay the firms fees and disbursements.
4 Confidentiality and personal information
4.1 Confidence
4.1.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
i to the extent necessary or desirable to enable us to carry out your instructions; or
ii as expressly or impliedly agreed by you; or
iii as necessary to protect our interests in respect of any complaint or dispute; or
iv to the extent required or permitted by law.
4.1.2 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing legal services for you.
4.2 Personal information and Privacy
4.2.1 In our dealings with you we will collect and hold personal information about you. We will use that information to carry out the Services and to make contact with you about issues we believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the Services.
4.2.2 Subject to clause 4.1.1, you authorise us to disclose, in the normal course of performing the Services, such personal information to third parties for the purpose of providing the Services and any other purposes set out in these Terms.
4.2.3 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.
4.2.4 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere. If you are an individual, you have the right to access and correct this information. If you require access, please contact us.
4.2.5 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). 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 the Services relate as we consider to be required by law.
5 Compliance
5.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
i Anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
ii Laws relating to tax and client reporting and withholdings.
5.2 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.
5.3 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.
5.4 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.
6 Termination of your retainer
6.1 You may terminate our retainer at any time upon giving us reasonable notice.
6.2 We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.
6.3 If our retainer is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.
6.4 If we terminate the retainer, we will give you reasonable notice so that you can arrange alternative representation and we shall give you reasonable assistance to find another lawyer.
7 Suspension of service
We reserve the right to stop work on your retainer if interim accounts are not paid on time or a request for information or action remains unsatisfied.
8 Retention of 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) 7 years after our engagement ends or earlier if we have converted those files and documents to an electronic format. Prior to this you are welcome to uplift your file.
9 Conflicts of Interest
We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises, we will advise you of this and follow the requirements and procedures set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.
10 Duty of Care
10.1 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 Services or who may rely on any advice we give, except as expressly agreed by us in writing.
10.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
10.3 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.
10.4 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.
11 Trust Account
11.1 We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account (except monies received for payment of our invoices).
11.2 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) may 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.
11.3 A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.
11.4 If we are holding significant funds on your behalf, we may lodge those funds on interest bearing deposit with our bank on your behalf. In that case we will charge an administration fee of 5 % of the interest derived.
11.5 Should we hold any funds on your behalf, those funds will not be placed on interest earning deposit if, in our view, it is uneconomic to do so. We determine that is uneconomic to do so if the gross interest expected to be earned while the funds are on deposit will be less than $100.
11.6 We will not be able to place any funds on interest bearing deposit through our trust account (except in the case of estates, charitable trusts or escrow purposes) without you first completing a Foreign Tax Residence Form as a requirement under the Automatic Exchange of Information/Common Reporting Standards (AEOI/CRS) regime. We will supply you with such forms when required. If you do not complete the forms, we will not be in a position to put funds on interest bearing deposit. When we hold funds on deposit on your behalf, we will be required to pass on that information to the Inland Revenue Department or our bank under the AEOI/CRS regime. If you have any questions about this matter, please contact the writer.
12 Professional Indemnity Insurance
We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.
13 Lawyers Fidelity Fund
13.1 The Law Society maintains the Lawyers’ Fidelity Fund to provide clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers & Conveyancers Act 2006 the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.
13.2 This is only a short summary of the major provisions in the Lawyers and Conveyancers Act 2006 relating to the Fidelity Fund. If you would like further information, please ask us.
14 Limitation of liability and responsibility
14.1 When conveying property, we do not give advice in relation to the quality of the investment, tax obligations/liabilities, suitability of agreement for your purposes and non-disclosure of relevant information.
14.2 We may correspond with you and others by electronic communication (generally email), unless you instruct us not to do so. As you are aware, electronic communications cannot be guaranteed to be secure. We check all e-mails with anti-virus software. We operate a firewall and automatic spam filter which may block a small number of genuine e-mails so that they do not reach the intended recipient in our company. We shall not be liable for any loss, costs or damage you may incur directly or indirectly as a consequence of us communicating by electronic means.
14.3 We shall not be liable for any loss arising from non-receipt by any party of any communication including electronic communications.
14.4 Work for which we undertake for you is solely for your use and is not to be relied upon by any other party.
15 Complaints
15.1 We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.
If you have a complaint about our services or charges, you may refer your complaint to the person in our firm who has overall responsibility for your work.
15.2 If you do not wish to refer your complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint to the principal of the firm Mark Bullock by letter addressed to PO Box 5, Whanganui 4541 or email mark@bullockassociates.co.nz.
15.3 If you are not satisfied with the outcome the Law Society also maintains a complaints service and you are able to make a complaint to that service. Matters may be directed to:
Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Or
Phone: 0800 261 801
Or
To lodge a concern: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form
To make a formal complaint: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint or Email: complaints@lawsociety.org.nz
16 Persons Responsible for Work
The names and status of the person or persons who will have the general conduct of or overall responsibility for the Services we provide for you are set out in our letter of engagement.
17 General
17.1 These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
17.2 We are entitled to change these Terms from time to time, without further reference to you.
17.3 Our relationship with you is governed by New Zealand law and New Zealand courts have nonexclusive jurisdiction.
Client care and service information
Set out below is the information we are required to provide to you by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (Law Society).
Whatever legal services your lawyer is providing, he or she must:
- Act competently, in a timely way, and in accordance with instructions received and arrangements made.
- Protect and promote your interests and act for you free from compromising influences or loyalties.
- Discuss with you your objectives and how they should best be achieved.
- Provide you with information about the work to be done, who will do it, and the way the services will be provided.
- Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
- Give you clear information and advice.
- Protect your privacy and ensure appropriate confidentiality.
- Treat you fairly, respectfully and without discrimination.
- Keep you informed about the work being done and advise you when it is completed.
- Let you know how to make a complaint and deal with any complaint promptly and fairly.
The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers.
Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
If you have any questions, please visit www.lawyers.org.nz or call 0800 261 801.