Terms of Engagement
1 General
1.1 These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement. 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 exclusive jurisdiction.
2 Services
2.1 The services we are to provide for you (the Services) will be outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing).
2.2 We ask you to:
a. give us clear instructions; and
b. promptly provide all detail requested by us to satisfy our obligations under the AML/CFT legislation.
3 AML/CFT and Compliance
3.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
a Anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
b Laws relating to tax and client reporting and withholdings.
3.2 When acting for you on certain matters, 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 of Trusts and Companies. We may not be able to begin acting, or to continue acting, for you until that is completed.
3.3 We will advise the particular requirements to you in more detail when you engage us to act for you.
3.4 If your matter requires us to carry out customer due diligence enquiries, as a minimum we will need to see you in person with your original photo identification and address evidence i.e. current Passport or NZ Driver’s Licence, a recent bank or credit card statement and a utility bill or a letter from a Government Agency within the last 6 months.
3.5 If a Trust or Company is involved we will require acceptable evidence of the original source of wealth and source of funds for a transaction from those entities.
3.6 Verification of identity: The Financial Transactions Reporting Act 1996 and the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 require 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 current 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.
3.7 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.
3.8 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 insufficient or potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
4 Communications
4.1 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.
5 Financial
5.1 Fees: .Our fee may be based on a number of factors including those applied by the New Zealand Law Society and include:
time spent
the skill, knowledge and responsibility required
the value of the property involved
the complexity, novelty, importance and urgency of the matter
the reasonable costs of running a practice
the result
We may also charge a “Sundry Fee” to cover some of our office administration and overhead costs (e.g. copying, stationery).
For a variety of reasons some matters are not completed. If this occurs, we will charge for the work undertaken and costs incurred up to the time of termination.
5.2 Disbursements & Office Expenses The following are payable in addition to our fee:
Disbursements such as search fees, registration fees, Court filing fees, GST, couriers and other payments made to third parties on your behalf.
5.3 Billing and Payment Arrangements We may render interim invoices. Unless otherwise agreed payment must be made within 7 days of receipt of our invoice. If an account is not paid promptly we may elect to:
a. Decline to perform any further work for you until the overdue amount is fully paid, and
b. Claim all legal costs and expenses we incur on a Solicitor and client and full indemnity basis associated with recovering the overdue amount.
5.4 Deduction of fees from Monies Received You authorise us to deduct our costs, disbursements and office expenses from any funds received on your behalf or held in trust for you provided that we send you an invoice as required by the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.
5.5 Personal Responsibility for Fees If more than one of you are named as our client, then you are all jointly and individually liable for paying our invoice.
If we are acting for a Trust or Company, the Trustees and Directors are personally responsible for payment of our costs and disbursements if for some reason the Trust or Company is unable to make payment.
5.6 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 a minimum amount 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. Unless specified, an estimate excludes GST, disbursements and expenses.
5.7 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 addressed to you but directed to a third party, you remain personally responsible for payment to us in accordance with these Terms if the third party fails to pay us.
5.8 Trust Accounting: We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.
a Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from 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.
b 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 at any time upon your request.
c Funds to be placed on Deposit:
i. If you instruct us to place any funds in an interest bearing deposit account we may charge a commission of up to 5% of the gross interest earned on the funds placed in an interest bearing call deposit account with the bank with which our Trust Account is held (currently ASB Bank Limited). 4
ii. If we have placed funds in an interest bearing deposit account, we are required to deduct Resident Withholding Tax (RWT from the interest earned.
iii. Subject to your having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank. Interest earned from call deposits, less withholding tax and an interest administration fee payable to us of 5% of the interest, will be credited to you.
6 Confidentiality and Personal Information
6.1 We treat all information about you, including information we create or acquire through working with you (Information), as confidential. We will only disclose Information with your prior consent, or if we are required to do so by law or the rules of the New Zealand Law Society.
6.2 You consent to us collecting, using and disclosing your Information to and from third parties (including credit reporters, investment brokers and government departments) to:
a. Meet our obligations under various laws, including the Anti Money Laundering and Countering Financing of Terrorism Act 2009 (including our obligation to complete due diligence and to report suspicious transactions), and the Foreign Account Tax Compliance Act,
b. Recover any amounts you may owe us, and
c. Use services provided by third parties (including customer survey and data hosting services) to send you legal updates, and to continue providing and improving our service to you.
6.3 You acknowledge that Information that we share with credit reporters can be used by them to help other third parties decide whether to provide credit to you. You authorise credit reporters to share Information for this purpose.
7 Documents, Records and Information
7.1 We will keep a record of all important documents which we receive or create on your behalf on the following basis:
a We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of wills and deeds).
b At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.
c We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so.
7.2 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.
7.3 Where we hold documents that belong to a third party you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.
7.4 Unless you instruct us in writing otherwise, you authorise us and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of the Services 7 (seven) years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer). We may retain documents for longer at our option.
7.5 We may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
7.6 We own copyright in all documents or work we create in the course of performing the Services but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
8 Conflicts of Interest
8.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules). This may result in a situation arising where we have a conflict of interest.
8.2 We have procedures in place to identify and respond to conflicts of interest or potential 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 Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement.
9 Duty of Care
9.1 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.
9.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
9.3 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.
9.4 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.
9.5 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.
10 Professional Indemnity Insurance
10.1 We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the New Zealand Law Society. We will provide you with particulars of the minimum standards on request.
11 Lawyers’ Fidelity Fund
11.1 The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing 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 $100,000.00. Except in certain circumstances specified in the Lawyers and 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.
12 Limitations on our Obligations or Liability
12.1 To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount payable under the Professional Indemnity Insurance held by the firm.
13 Termination
13.1 You may terminate our retainer at any time.
13.2 We may terminate our retainer in any of the circumstances set out in the Rules including (but not limited to) the existence of a conflict of interest, non-payment of fees, and failure to provide clear instructions in a timely manner.
13.3 If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
14 Complaints Procedure
14.1 On receipt of a written complaint, the Firm’s Principal will provide a written response to the Client within fifteen (15) working days of receipt of the Client’s written complaint.
14.2 If the Client is not satisfied with the Firm’s written response, the parties will have a further fifteen (15) working days to attempt in good faith to resolve the complaint amicably.
14.3 If the complaint has not been resolved within that time the complaint shall then be referred to mediation.
14.4 If the complaint is referred to mediation, then the parties shall endeavour to agree on a mediator and shall submit the matter in dispute to that mediator. The mediator shall discuss the complaint with the parties (separately or jointly at the discretion of the mediator) and endeavour to resolve it by agreement.
14.5 All discussions in any mediation shall be without prejudice and shall not be referred to in any later proceedings.
14.6 The parties shall bear their own costs in the mediation and shall each pay half of the costs of the mediator.
14.7 If the complaint is not resolved by mediation, or the parties are unable to agree on a mediator within ten (10) working days, or such further time as the parties may agree, then you have the right to lodge a written complaint with the New Zealand Law Society’s complaints service – details of which are available on www.lawsociety.org.nz.