Terms of engagement
Law Society Requirements
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.
1.1 The services we are to provide for you are outlined in our engagement letter.
(a) Unless other arrangements have been made our fees will be charged taking into account the factors appearing at Rule 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. These factors include:
· time and labour expended:
· the skill, specialised knowledge, and responsibility required to perform the services properly:
· the importance of the matter to the client and the results achieved:
· the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:
· the degree of risk assumed by the lawyer 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 lawyer:
· the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:
· whether the fee is fixed or conditional (whether in litigation or otherwise):
· any quote or estimate given by the lawyer
· any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:
· the reasonable costs of running a practice:
· the fee customarily charged in the market and locality for similar legal services.
(b) Where our fees are calculated on an hourly basis, the hourly rates are set out in our engagement letter. The differences in those rates reflect the experience and specialisation of our professional staff. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.
2.2 Disbursements and Expenses: In providing services we may incur disbursements or have to make payments to third parties on your behalf. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the disbursements or expenses which we will be incurring on your behalf.
(a) We charge an office service fee of between $25.00 and $100.00 on each matter and this fee is included as a disbursement.
(b) We are related to and operate Onehunga Legal Services Limited (“OLS”) which carries out services for us including Landonline, Auckland District Law Society, New Zealand Law Society, Personal Property and Securities Register and Companies Office searches, registration and filing along with AML and FATCA compliance. OLS charges an agency fee for its services and this fee is included as a disbursement in our invoices and statements.
2.3 GST (if any): Is payable by you on our fees and charges.
2.4 Invoices: We will send 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. Generally property and similar transactional matters will be invoiced at the time of settlement or on completion of the work.
2.5 Payment: We may require you to make a payment or payments to us for property and similar transactional matters prior to a final invoice being issued. All other invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us. We may require interest to be paid on any amount which is more than 7 days overdue. Interest will be calculated at the rate of 2% above our firm's main trading bank’s 90-day bank bill buy rate as at the close of business on the date payment became due.
2.6 Security: We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise us:
(a) to debit against amounts pre-paid by you; and
(b) to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.
2.7 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 directed to a third party, nevertheless you remain responsible for payment to us if the third party fails to pay us.
2.8 Trust Account: Our operating trust account is with ASB Bank Limited.
3.1 Subject to clause 4.3, 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:
(a) to the extent necessary or desirable to enable us to carry out your instructions; or
(b) to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.
3.2 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.
3.3 We will, of course, not disclose to you confidential information which we have in relation to any other client.
4.1 You may terminate our retainer at any time.
4.2 We may terminate the retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers. Examples include your failing to provide us with instructions in a sufficient timely manner or your unwillingness, inability or failure to pay our fee on an agreed basis or except in litigation matters you adopting against our advice a course of action which we believe is highly imprudent and may be inconsistent with our fundamental obligations as lawyers. If we terminate the retainer we will give you reasonable notice so you can arrange alternative representation and we shall give you reasonable assistance to find another lawyer.
4.3 Occasionally in the course of completing your instruction, the firm may be required to give undertakings to another solicitor by which the firm is bound. Once given, you will not be able to terminate our retainer until the required action is completed or a release from the undertaking is obtained.
4.4 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.
5. DOCUMENTS, RECORDS AND INFORMATION
5.1 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.
5.2 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.
5.3 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.
5.4 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 years (or earlier in the case of hard copy files and documents if we have converted those files and documents into an electronic format) 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.
5.5 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.
5.6 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.
6.1 Where work has been done by us but we have not been paid by you then as a general rule we have the right to retain original documents and correspondence on your file until such time as all outstanding fees, disbursements and other expenses have been paid. This is known as a lien. This will be particularly important in circumstances where you decide for whatever reason to instruct another Firm. That other Firm may be obliged to give an undertaking to us to pay all outstanding fees and disbursements before your file is released.
7. CONFLICTS OF INTEREST
7.1 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.
8. DUTY OF CARE
8.1 Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
8.2 We will carry out all work to our usual high professional standards but will not be liable for, and you will not claim against us for, any direct or indirect financial loss or damage arising from any delays in title issuing, delays in funds being placed on interest bearing deposit, or delays in settlements or transactions or otherwise in the absence or our recklessness or unprofessional conduct.
9. TRUST ACCOUNT
9.1 We maintain a trust account for all funds which we receive from clients (except monies received for payment of our invoices). If we are holding significant funds on your behalf we may lodge these funds on interest bearing deposit with a bank but will be unable to do so if you have not confirmed your FATCA status (see 9.2). In that case we will charge an administration fee of 5% of the interest derived. In the absence of written authority we will either leave funds on call or on non-interest bearing deposit.
9.2 We are a Non-Financial Foreign Entity for the purposes of the United States Foreign Tax Compliance Act (FATCA). This means that where we hold funds for you on interest bearing deposit, we are required to advise our bankers whether you are a US person or where you are a client entity if you have any controlling person who is a US citizen or US tax resident. You agree to provide us with information on your FATCA status required by our bankers and confirm that information is correct and irrevocably consent to our providing that information to the Inland Revenue Department and/or our bankers.
9.3 We are able to place funds on term deposit with ASB Bank Limited. Please be aware that if you want funds placed on term deposit we will need specific written instructions from you. It is important to note that ASB requires at least 31 days notice of an intention to break a term deposit. If a term deposit is broken ASB reserves the right to charge a fee and/or reduce the interest rate applicable at their discretion. We therefore strongly recommend that you consider whether any funds held may be required at short notice and if so plan for that eventuality.
10. FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND THE OECD COMMON REPORTING STANDARD (CRS)
10.1 Our bank (ASB) is required by law to obtain certain information about funds held in our trust account and advise the IRD, who may in turn forward the information to foreign tax authorities. The IRD has the power to compel any person, including our firm to supply such information to the IRD. The FATCA/CRS information required relates to funds held in our trust account on Interest Bearing Deposit (IBD) for an entity or individual that is a foreign tax resident. Entities are also required to disclose whether they conduct active or passive business, and whether they are financial institutions.
10.2 You agree and consent to us providing any information held by us in relation to your FATCA/CRS status or FATCA/CRS matters to the IRD and the ASB.
10.3 You acknowledge and agree that we are unable to place funds in our trust account on IBD unless we have received your signed FATCA/CRS self-certification form. This means that interest will not be earned on your funds until we receive the signed form.
11.1 We accept no responsibility or liability for diarisation and follow up of future dates and time frames of client affairs and transactions including but not limited to gifting, lease renewals and rent reviews, renewals of financing statements on the PPSR. We urge clients to diarise such matters.
12. ELECTRONIC PAYMENTS
12.1 You are responsible to ensure that any account details which you provide to us or which are provided by a third party on your behalf are correct. While every effort is made to ensure funds are paid to the correct account, we are not responsible should funds be paid by us to a third party’s account where that payment arises as a result of incorrect details provided by you or on your behalf.
12.2 Our trust account is with the ASB Bank. Details are as follows:
Daniel Overton & Goulding
It is your responsibility to verify these details against any payment instructions sent by us or purportedly sent by us.
12.3 While we make every effort to maintain a high standard of internet security, for the avoidance of doubt, we shall not be responsible for any loss arising from internet fraud.
12.4 We bank with ASB Bank Limited. If we are sending funds overseas for you, unless instructed otherwise we will do so at the exchange rate applicable at that time. Where we transfer funds to a foreign country we will convert those funds into the relevant foreign currency at the prevailing exchange rate offered by our bank. We are not responsible for seeking or obtaining a better exchange rate. Where you instruct us to transfer funds to a foreign country we will charge you any costs incurred by us in complying with your instructions.
13.1 These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
13.2 We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
13.3 Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
14.1 You consent to us verifying any information that you give to us (or information that we may collect from other sources) with third parties and third party databases for the purposes of fraud prevention or the Anti-Money Laundering and Countering Financing Terrorism Act 2009.