The following Terms of Engagement (“Terms”) shall apply in respect of the services carried out by my firm, except to the extent that I otherwise agree with you in writing.
1 Services / Liability for fees
The services that my firm is to provide for you have been outlined in writing (via email or otherwise) and / or during our initial discussions. If you are instructing me as a director or shareholder of a company or as a trustee of a trust or as an administrator of an estate, then you are also personally and severally subject (along with the company, trust or estate) to these Terms notwithstanding what entity is invoiced.
2.1 Fees for professional services
I advise that my charge out rate is $290 per hour plus GST, my assistant’s charge out rate is $150 per hour plus GST. In the event that I consider that a specialist Barrister should be briefed (and I use various Barristers for specialist issues associated with litigation) then the costs of the Barrister are anywhere between $300 and $450 per hour plus GST. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes. This is typically done electronically through my practice management system/s, but this can also be undertaken manually.
If I have specified an estimated fee, I will charge for the agreed scope of my services. Work which falls outside that scope will be charged for on an hourly rate basis and I will advise you as soon as reasonably practicable if this work becomes necessary.
In fixing the final fee, I am also entitled to take account of a number of factors approved by the Law Society including:
- the time spent;
- the skill, knowledge and responsibility required;
- the risk assumed in the work and the amount or value of property involved;
- the importance of the matter and the results achieved;
- the complexity, novelty, and urgency of the matter; and
- the reasonable costs of running a legal practice.
2.2 AML/CFT Compliance
As I have previously advised, there is in addition to my above fees a compliance charge when you instruct me about a captured activity as defined by that legislation.
In providing services, I may incur expenses or have to make payments to third parties as an on your behalf. These will be included in my invoice to you. I may require an advance payment for expenses which I will be incurring on your behalf.
2.4 Office Charges
In addition to the above expenses, I will charge a fee depending on the nature of your file (usually between $20-$60) to cover such costs as stationery, phone calls and printing.
I may send interim invoices to you but will send an invoice on completion of the matter, or upon the termination of my engagement. Interim invoices will help you by spreading the payments over time and will also enable you to keep track of how much your legal services are costing. I may also send you an interim invoice, if I incur a significant expense to a third party.
Invoices are payable within 14 days of the date of the invoice without set off, counterclaim or deduction. I may require interest to be paid on any amount which is overdue. Interest shall be calculated at the rate of 14% p.a. from the when the payment became due until payment in full.
If I have reduced my fee, this is on the basis that the invoice is paid as set out above. In the event that it is not then I reserve the right to withdraw my invoice and charge for the full amount.
I may also require you to pay all costs incurred in recovering or attempting to recover the fees, expenses and office charges owed. This includes all solicitor costs incurred. I also have the discretion and the right to undertake recovery of these costs on my own account and not to engage another solicitor to undertake such work.
2.7 Difficulty in Payment
If you anticipate difficulty in the payment of any invoice, please contact me immediately on receipt of the invoice to discuss arrangements for payment, usually by way of instalments.
2.8 Security / Authority to deduct
I may ask you to pre-pay amounts to me, or you to provide security for my fees, expenses and office charges. You irrevocably authorise me to debit my fees, expenses and office charges against amounts pre-paid by you or funds which I may hold on your behalf in my trust account except those held for a specific purpose as agreed to by me in writing.
2.9 Third Parties
Although you may expect to be reimbursed by a third party for my fees, expenses and office charges, and although my invoices may at your request or with your approval be directed to a third party, nevertheless you remain responsible for payment to me (and for any enforcement costs and interest) if that third party fails to pay me.
2.10 Instruction of a Third Party
If I instruct any other person (including a Barrister or another legal practitioner) I may require payment of that person’s estimated fees into my trust account beforehand. By instructing that person, I undertake an obligation to pay that person’s fees and accordingly need to be protected for these. I may also require you to enter a payment arrangement directly with that person.
I will hold in confidence all information concerning you or your affairs that I acquire while acting. I will not disclose any of this information to any other person except to the extent necessary or desirable to enable me to carry out your instructions, receive payment for my fees and expenses or to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.
Confidential information concerning you will as far as practicable be made available only to those within my firm who are providing legal services for you. You expressly further consent to me obtaining, at my own cost, a credit report on you at any time should I consider it necessary.
4 Termination / Suspension of Services
You may terminate my retainer at any time by notifying me. I may terminate my retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers. If my retainer
is terminated you must pay me all fees plus office charges due and expenses incurred up to the date of termination and those incurred associated with the implementation of the termination (these typically involve dealing with third parties).
In the event that you do not comply with these Terms and in particular in relation to the payment of fees, office charges and expenses, I may suspend the provision of all and any services (including any litigation services) until all outstanding fees, office charges and expenses have been paid in full and matters have been resolved to my reasonable satisfaction, including the payment of additional funds before further services are provided.
5 Retention of files and documents
You authorise me (without further reference to you) to destroy all files and documents for this matter (other than any documents that I hold in safe custody for you) not less than 6 years after my engagement ends, or earlier if I have converted those files and documents to an electronic format.
In the event that you or your accountant/adviser requests or any governmental department demands records to be supplied, I reserve the right to charge a fee for the provision of that information after first advising you that a request has been made by a third party.
6 Conflicts of Interest
I have procedures in place to try and identify and respond to conflicts of interest. If a conflict of interest arises, I 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.
7 Duty of Care
My duty of care is to you and not to any other person or entity. Before any other person or entity may rely on my advice, I must expressly agree to this in writing.
8 Trust Account
I maintain a trust account for all funds which I receive from or upon behalf of my clients. My trust account has, from its inception in June 2007, been periodically audited by the Law Society as part of its “Financial Assurance Scheme”.
In the past, if I am holding significant funds on your behalf, I would normally have lodged those funds on an interest bearing deposit (“IBD”) pending payment to you. However, from 1 July 2017, New Zealand has entered into an agreement with the United States of America under the United States Foreign Account Tax Compliance Act (“FATCA”) and also an OECD Common Reporting Standard (“CRS”).
Given the compliance obligations under FATCA and CRS for the majority of files (excluding Estate administration) it is simply not economic to place funds on IBD. I will use my best endeavours (although not to the standard of a financial adviser – see below) to advise you if it is possibly prudent to do this or alternatively you can always instruct me to place your funds on IBD subject to compliance with these formalities and meeting my costs.
9 Electronic Communications
Unless otherwise agreed with you, I will communicate with you and others at times by electronic means. I will also use electronic means to satisfy any disclosure obligations. These communications can be subject to interference or inception or contain viruses or other defects (“corruption”). I do not accept responsibility and will not be liable for any damage or loss caused in connection with the corruption of electronic communications.
I do not give general commercial, tax (especially binding advice around CB6, RLWT or the bright-line test for residential property), or business advice, only legal advice and services performed or rendered in the conduct of a general practice lawyer. I therefore cannot give any advice about the quality of realty nor its market value.
I am also not a financial adviser as defined by the Financial Advisers Act 2008.
The services I undertake are subject to the accuracy of information supplied by you or your agents; the accuracy of information on public registers; and any disclaimers or limitations I expressly make (whether or not in writing) or which are implied by the nature of, or commonplace for that type of work.
To the extent permitted by law, my and my firm’s aggregate liability to you (whether in contract, equity, tort or otherwise) arising out of your engagement on any matter is limited to the greater of: the amount actually received as indemnification under any relevant insurance held by me or my firm (plus any excess
payable in relation to the claim); or five times the amount of my applicable fee (excluding office charges, expenses and GST).
You may not bring any action against me, regardless of form, more than three years after the cause of action has arisen. The above are agreed to be reasonable restrictions on my liability to you and you acknowledge that these restrictions have been factored into my fees.
These Terms apply by agreement to any current engagement and also to any future engagement, whether or not I send you another copy of them. These terms do not need to be signed to be binding and your subsequent instructions (via any medium) shall constitute consent and acceptance.
I am entitled to change these Terms from time to time, in which case I will send you amended Terms.