TERMS OF ENGAGEMENT

1    General

1.1          These Standard Terms of Engagement (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, in which case we will send you amended Terms.  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 (“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).

2.2          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.

3.   Communications

3.1          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 straight away if any of your contact details change.

3.2          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.

3.3          You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins.  At any time you may request that this not be sent to you.

4.   Financial

4.1          Fees: The basis upon which we will charge our fees is set out in our engagement letter.

a        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.

b        Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake or who may 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.

c        Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value, circumstances and importance of the Services.  Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).

4.2          Disbursements and Third Party Expenses:  In providing the Services 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 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 (or in advance when we know we will be incurring them on your behalf). 

4.3          Office Service Charge Fee (Administrative expenses):  In addition to disbursements, we may charge a fee to cover out of pocket 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, and may vary for different matters that we work on for you.

4.4          GST:  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.

4.5          Invoices:  You will be billed as follows:

a        If the work we undertake for you is going to extend over a medium or long period of time we will bill you on a regular basis and this may include on a weekly, fortnightly and/or monthly basis.  This will help you by spreading the payments over time.  It will also enable you to keep track of how much the work is costing you.  Where files are billed monthly your account will usually be calculated purely on the basis of time spent.

b        In some circumstances we will bill you when certain milestones are met.  These milestones may include completing particular key matters on a file; or upon reaching a certain level of unbilled time.  We may discuss this with you on a case by case basis and we retain the right to:

i          Establish and amend milestones for the payment of our fees throughout the course of acting on a matter for you.

ii         Dictate how regularly we provide you with invoices.

c        When a final bill is rendered an adjustment may be made to allow for those factors mentioned above.

4.6          Payment:  Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us. 

a        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.

b        If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.

c        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 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.

d        Payment may be made by credit card or electronic funds transfer (direct credit) to our bank account:

Clendons North Shore Limited
General Account with ANZ Bank
06-0294-0980736-00

4.7          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.

4.8          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 and we will review the estimate if we consider that is necessary.  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 office charges, disbursements and expenses and GST.

4.9          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 in accordance with these Terms if the third party fails to pay us.

4.10        Trust:  Where we hold funds on your behalf in our trust account other than for a specific purpose, we may deduct our fees and other charges from those funds.  By instructing us, you authorise us to do this.  If we do this we will inform you in writing. 

4.11        Interest Bearing Deposit in Trust:  Where your funds are, in agreement, placed by us on interest bearing deposit with our bank, the interest received belongs to you.  It is calculated at our bank’s floating interest deposit rates applying from time to time.  From the interest received we deduct our commission (5% of the interest received) and interest withholding tax.  For New Zealand residents, where an IRD number has been supplied you may elect your withholding tax rate.  If you have not supplied your IRD number, the non-declaration rate will be applied.

5.   Conveyancing Protocol

5.1          If the Services involve a conveyance of land, then you authorise us to make such amendments to the agreement for sale and purchase as we consider necessary to agree and implement a protocol for settlement of the transaction with the solicitor for the other party to the agreement..

6.   Confidentiality and Personal Information

6.1          Confidence: 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        as expressly or impliedly agreed by you; or

c        as necessary to protect our interests in respect of any complaint or dispute; or

d        to the extent required or permitted by law.

6.2          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.

6.3          Personal information and Privacy: In our dealings with you, and in the course of providing the Services, 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.

6.4          Subject to clause 5.1, 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.

6.5          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 and by instructing us you authorise us to do all or any of these things.

6.6          The information we collect and hold about you, and the documents we hold on your behalf, will be kept on our computer systems comprising Actionstep which provides us with secure cloud storage with Amazon Web Services New Zealand, Microsoft Sydney/Melbourne, Australia and Xero Limited New Zealand cloud based accounting services, 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 Krystle Gardner, Director, or Jenny Harris, Associate Legal Executive.

6.7          Verification of identity:  The Financial Transactions Reporting Act 1996, the Tax Administration Act 1995, the Income Tax Act 2007 and other legislation requires us to collect from you and to retain and disclose information required to verify your identity and otherwise as necessary to ensure compliance with the FATCA (United States Foreign Account Tax Compliance Act) and CRS (Common Reporting Standard) regimes which relate to the exchange of information between participating countries.  We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence) and other documents as may be required to meet our obligations referred to above.  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.

7.   Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML/CFT Act”)

7.1          We must comply with the requirements of the AML/CFT Act and must do a number of things to help combat money laundering and terrorist financing, and to help Police bring the criminals who do it to justice.  The AML/CFT law does this because the services law firms and other professionals offer may be attractive to those involved in criminal activity.  

7.2          The law says that law firms and other professionals must assess the risk they may face from the actions of money launderers and people who finance terrorism and must identify potentially suspicious activity.  To make that assessment, we must obtain and verify information from prospective and existing clients about a range of things as part of our “customer due diligence”. 

7.3          Identify Information:  We will need to obtain from you to meet our legal requirements your full name and date of birth (in the case of an individual), confirmation of the relationship the person has to the customer, the address or registered office of the person, and the person’s company identifier or registration number.

7.4          Obtain and verify identity:  We will need to obtain and verify from you to meet our legal requirements documents such as your driver’s licence or your birth certificate, and documents that show your address – such as a current bank statement – will be required.  If you are seeing us about company or trust business, we will need information about the company or trust including the people associated with it (such as directors and shareholders, trustees and beneficiaries).  We will retain copies of these documents.

7.5          Further Information: 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.  We will also ask you about the nature and purpose of the proposed work you are asking us to do for you.

8.   Documents, Records and Information

8.1          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.

8.2          We do not offer and will not store your original deeds, powers of attorney, enduring powers of attorney, wills or other private deeds.

8.3          We may store general legal agreements and documents for you.  Some of these documents may be stored electronically on our computer system at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere.

8.4          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 2020 or any other law. We may charge you our reasonable costs for doing this.

8.5          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.

8.6          Unless you instruct us in writing otherwise, you authorise us and consent to us (without further reference to you) destroying (or delete in the case of electronic records) all files and documents in respect of the Services 7 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), or in the case of conveyancing files 10 years after our engagement ends. We may retain documents for longer at our option.

8.7          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.

8.8          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.

9.   Conflicts of Interest

9.1          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.

9.2          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.

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 you or 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.

10.5        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.

11.   Limitations on our Obligations or Liability

11.1        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 available to be payable under the Professional Indemnity Insurance held by the firm.

12.   Termination

12.1        You may terminate our retainer at any time.

12.2        We may terminate our retainer in any of the circumstances set out in the Rules including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.

12.3        If our retainer is terminated for any reason you must pay us all fees, disbursements and expenses incurred up to the date of termination.

13.   Feedback and Complaints

13.1        Client satisfaction is one of our primary objectives and feedback from clients is helpful to us.  If you would like to comment on any aspect of the service provided by us, including how we can improve our service, please contact the person responsible for your business or Krystle Gardner, Director.

13.2        If you have any concerns or complaints about our services, please raise them as soon as possible with the person to whom they relate.  They will respond to your concerns as soon as possible.  If you are not satisfied with the way that that person has dealt with your complaint, please raise the matter with the person responsible for your business or with Krystle Gardner, Director.  We will inquire into your complaint and endeavour in good faith to resolve the matter with you in a way that is fair to all concerned.

13.3        If you are not satisfied with the way we have dealt with your complaint the New Zealand Law Society has a complaints service to which you may refer the issue. You can call the 0800 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to:

Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Phone: 0800 261 801

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

Email: complaints@lawsociety.org.nz

 

INFORMATION FOR CLIENTS

 

Set out below is the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (“Law Society”).

1.   Fees

1.1          The basis on which fees will be charged is set out in our engagement letter.  The way in which fees are to be paid is set out in our Terms of Engagement.

2.   Professional Indemnity Insurance

2.1          We hold professional indemnity insurance cover that meets the minimum standard set by the New Zealand Law Society.

3.   Lawyers’ Fidelity Fund

3.1          The Law Society maintains the Lawyers’ Fidelity Funds 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.

4.   Complaints

4.1          We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.

4.2          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.

4.3          If you do not wish to refer you complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint direct to Krystle Gardner, Director.  Krystle Gardner may be contacted by letter, by email (krystle.gardner@clendons-ns.co.nz) or by telephone (022 395 9973).

4.4          The Law Society operates the Lawyers Complaints Service and you are able to make a complaint to that service.  To do so, phone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.

5.    Persons Responsible for the Work

5.1          The names and status of the person or persons who will have the general carriage of or overall responsibility for the services we provide for you are set out in the letter of engagement.

6.   Clients Care and Service

6.1          The Law Society client care and service information is set out below.

6.2          Whatever legal services a lawyer is providing, he or she must:

a.              Protect and promote your interests and act for you free from compromising influences or loyalties.

b.              Discuss with you your objectives and how they should best be achieved.

c.              Act competently, in a timely way, and in accordance with instructions received and arrangements made.

d.              Promptly communicate project events to you throughout the project, through emails and regular Project Reports.

e.              Provide you with information about the work to be done, who will do it and the way the services will be provided.

f.               Protect your privacy and ensure appropriate confidentiality.

g.              Treat you fairly, respectfully and without discrimination.

h.              Give you clear information and advice.

i.               Charge you a fee that is fair and reasonable and let you know how and when you will be billed.

j.               Let you know how to make a complaint and deal with any complaint promptly and fairly.

k.              Work as a team to ensure that you have more than one point of contact and to remove bottlenecks.

l.               If we handle trust monies on your behalf, provide you with a statement of account at the end of the project and not less than annually.

6.3          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.

6.4          If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.

7.   Limitations on extent of our Obligations or Liability

7.1          Any limitations on the extent of our obligations to you or any limitation or exclusion of liability set out in the letter of engagement.