Terms of Engagement
Terms of Engagement
These Terms of Engagement apply to and will govern our relationship, except where we otherwise agree with you in our Letter of Engagement.
Your Instructions and Our Role
1.1 We rely on you providing full instructions to us for each matter you instruct us to act for you and to ensure that all relevant facts are given to us during the transaction.
1.2 We will set out our understanding of our role in an engagement letter.
1.3 We provide legal advice on New Zealand law. We do not advise on foreign law or commercial, financial or other non-legal matters. We do not provide financial advice on real estate or conveyancing matters. We are not responsible for advising you as to taxation issues, unless you specifically instruct us to do so.
2.1 We are required to comply with all laws binding on us, including the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML/CFT”), the Foreign Account Tax Compliance Act (US) (“FATCA”) and the OECD’s common reporting standards (“CRS”).
2.2 We will perform client due diligence and account monitoring, keep records and report any unusual or suspicious transactions where required by AML/CFT, FACTA, CRS or any other law. We may also be required to assist any bank to comply with its legal obligations.
2.3 For the purposes of AML/CFT, we are required to obtain and verify certain information from you. This may include people associated with you (such as employees, directors and shareholders, trustees and beneficiaries). If we are unable to obtain the required information from you, it is likely we will not be able to act for you.
2.4 We also have ongoing client due diligence obligations. To meet these obligations, we may need to request further information from you in the future. If we are not able to obtain the required information, it is likely we will not be able to take further instructions from you.
Limitation of Liability
3.1 To the extent permitted by law, our total liability to you in connection with any matters (or series of related matters) on which you engage us will not exceed:
a) the amount paid out under any relevant insurance held by us, up to a maximum of NZ$10,000,000; or
b) NZ$2,000,000 or (if greater) the amount of 5 x our applicable fee (excluding our administration fee, disbursements and GST); and
c) you may not bring any action against us, regardless of form, more than one year after the cause of action has arisen.
3.2 This limitation applies to liability of all kinds, whether in contract, tort (including negligence), equity or otherwise. We may override this limitation where it is specifically agreed with you in a Letter of Engagement signed by us.
3.3 If we provide services to any persons or entities related to or associated with you or to anyone else at your request (whether or not we also advise you) on a matter (or series of related matters) on which you engage us, then our aggregate liability to you and all those persons and entities in respect of that matter (or series of related matters) will be subject to this limitation (and you will ensure those persons and entities agree to this).
4.1 Subject to any special arrangements contained in our Letter of Engagement, our fee is calculated in accordance with the New Zealand Law Society’s Rules (NZLS Rules) (Schedule A), which provide that fees must be fair and reasonable for the services provided having regard to the interests of both client and lawyer and the specified ‘reasonable fee factors’.
4.2 Disbursements, which include any costs we incur on your behalf, are charged and payable in addition to our fees. Without Limitation, disbursements may include; photocopying, toll & fax charges, postage, search fees, travel expenses, counsel fees, agency charges and court filing fees. Rather than recording office service charges like tolls, photocopying and faxes, we may instead charge for those services by reference to a scale of charges based on the value of our bill.
4.3 Our fees and charges are plus GST (if any) and such GST is payable by you.
4.4 We may ask you to pay a sum in advance as a contribution to our fees and disbursements, or to provide security for our fees and disbursements. You authorise us to debit against any amounts prepaid by you and, deduct from funds held on your behalf in our trust account, any fees, expenses or disbursements for which we have rendered an invoice.
5.1 We do not generally give quotes about the cost of any work undertaken. We will not be bound by any ‘quote’ as to future fees unless it is, in writing, expressly described as ‘a quote’ and has been signed by a partner of the firm.
5.2 An ‘estimate’ is merely an opinion as to possible future costs. We will give estimates in good faith and using all reasonable care, but in no circumstances will an estimate be binding on us or limit our right to recover our remuneration charged in accordance with clause 5.
6.1 Unless our Letter of Engagement provides otherwise, we will generally bill you every month while the work is in progress. We will also bill you at the conclusion of any matter. All our accounts are due to be paid within 14 days of their date.
6.2 If we agree to address an invoice to a third party, you remain liable for the amount invoiced if the third party does not make payment.
If payment of any of our fees or any disbursements is overdue, then:
a) we will be entitled to charge interest at the rate of 20% per month on the balance overdue;
b) we may refuse to perform any further work for you until all unpaid invoices are paid in full; and
c) we may retain custody of any of your property (including documents and files) until all unpaid invoices are paid in full.
Costs to Recover Unpaid Fees:
If we incur costs (including the use of firm time to recover any outstanding account), you are liable to pay the full costs of that recovery on a solicitor/client basis. This is in addition to the outstanding account balance plus interest in accordance with clause 8.
We do not undertake work on legal aid. You acknowledge that you have decided to instruct us on the basis that the work will not be carried out on legal aid.
Retention of Files and Documents
10.1 We will retain files for a period of six years from the date of the final bill but in the absence of written directions from you, after that time the file may be destroyed.
10.2 Documents held in our deeds system will be held at your direction.
Engagement of Third Parties
11.1 From time to time it may be necessary for us to engage, on your behalf, the services of another party to provide specialist advice or advocacy services. We will consult with you about that need and advise you about the terms of that party’s engagement.
11.2 You may be asked to enter into a fee arrangement directly with the other person or to pay funds on account of that person’s anticipated costs to us.
11.3 We will strive to find the most suitable person, taking into account any directions you give on cost questions or otherwise.
12.1 The Court has the power to award costs between parties. If an order is made that requires the other party to pay court costs to you, that order does not affect your liability to pay our remuneration under this agreement.
12.2 If the Court orders that you pay another party’s legal costs (for example, should you lose the case), those costs are separate to and in addition to, those payable to us under this agreement. Payment of those costs is your responsibility.
Termination of Instructions
13.1 Where you give us instructions and we rely on them (eg. by giving an undertaking to a third party) you may not revoke those instructions. Otherwise, you may terminate your instructions to us at any time. You are obliged to pay our remuneration until the date of termination and the terms of this agreement remain in force until our remuneration is paid in full.
13.2 We may terminate this agreement if:
a) we perceive we have lost your confidence;
b) a conflict of interest arises;
c) termination is otherwise required for lawful reason;
or, if you:
a) fail to pay our remuneration;
b) fail to provide adequate instructions;
c) withhold material or information relevant to our instructions;
d) decline to accept our advice;
e) otherwise breach this agreement;
We will give you reasonable notice of termination of the agreement and the reasons why.
We shall not be liable to you for any delay or non-performance of our obligations arising from any cause beyond our reasonable control. In the event of our being so delayed or prevented from performing our obligations, we shall give you notice, in writing, as soon as reasonably possible. Further, we shall resume performance of our obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
You may use and copy all documentation created by us for you in connection with the work we undertake for you. However, all ownership rights and intellectual property created by us remain our property. We will be free to use the intellectual property and original ideas to give advice to other clients, provided that we do not breach our duty of confidentiality to you.
By providing your email address and/or mobile phone number, you consent to us communicating with you and others associated with you by electronic means, such as email or text message. These communications can be subject to interference or interception or contain viruses or other defects (“Corruption”). We do not accept responsibility for and will not be liable for any damage or loss caused in connection with, or as a consequence of, the corruption of an electronic communication.
17.1 This clause applies to all agreements in which the client is a company or a partnership. The person who has signed this agreement on behalf of the client:
a) warrants they have authority to bind the client; and
b) in the case of default by the client, is liable as guarantor for payment of all fees and disbursements (including GST) incurred pursuant to this agreement.
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.
Duty of Care
Our duty of care is to you and not to any other person. Any advice given by us is solely for your benefit and may not be used or relied on by any other person without our express written agreement.
20.1 We maintain a trust account for all funds which we receive from clients (except monies received for payment of our invoices).
20.2 If we are holding significant funds on your behalf we may lodge those funds on interest bearing deposit with a bank, but before doing so, we may require you to sign individual or entity self-certification forms required by our bank pursuant to its legal obligations. We will forward these to you and as soon as you have signed them and returned them to us, we will place the funds on deposit. We will charge an administration fee of 5% of the interest received for any deposit.
20.3 We may deduct any fee, expense or disbursement, for which we have provided you with an invoice, from any funds held in our trust account on your behalf, except where we receive the funds from you for a special purpose (other than as security for our fees) and they remain in our trust account for that special purpose.
Information to Clients
We attach some useful material for your information in Schedule B.
22.1 We will hold in strict confidence all information we acquire through our work for you and which concerns your business or your instructions to us. The only exceptions are where you authorise us to disclose such information or where we, or our service providers, must do so by law.
22.2 We are not able to disclose to you information which we obtain through acting for other clients.
22.3 Where we obtain confidential information from you, we will, as far as practicable, distribute that information only to those within the Firm who actually need that information to carry out your instructions.
23.1 You agree that we may obtain information about you and you consent to any person providing us with such information.
23.2 You agree that we may use any information we have about you relating to your credit worthiness and may give that information to any other person, including any Credit or Debt Collection Agency for credit assessment and debt collection purposes.
23.3 You must notify us of any change in circumstances that may affect the accuracy of information provided by you to us.
24.1 These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
24.2 We are entitled to change these Terms from time to time, in which case we will either send you amended Terms or publish the changed terms on our website, www.gcalawyers.com.
24.3 Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
The reasonable fee factors referred to in clause 5.1 are:
the 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 any property involved;
the complexity of the matter and the difficulty or novelty of the questions involved;
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 of fees 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.
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").
The basis on which fees will be charged is set out in clause 4 of these Terms of Engagement.
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 upon request.
Lawyers' Fidelity Fund:
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. 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.
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.
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 any partner of the firm.
Partners may be contacted as follows:
by email at: email@example.com; or
by telephoning (03) 365 1347.
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.
Persons Responsible for the Work:
The names and status of the person or persons who will have overall responsibility for the services we provide for you are set out in our Letter of Engagement.
Client Care and Service:
The Law Society client care and service information is set out below.
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.lawsociety.org.nz or call 0800 261 801.
Client Care and Service:
7. Limitations on Extent of our Obligations or Liability
Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out at clause 3 of these Terms of Engagement.