Wilson Harle Standard Terms of Engagement
These terms apply generally to our relationship with our clients. They govern any current and future engagements, whether or not we provide another copy of them. If these terms are inconsistent with any other agreement which we have made with you (whether generally or in respect of a specific instruction), the other agreement prevails over these terms.
- Our client
Our client on any particular matter (referred to in these terms as “you”) will be the party identified as such in the Letter of Engagement unless specifically agreed otherwise.
We have the usual authority of a lawyer to act on your behalf in relation to each instruction which we accept, including, where reasonable, to incur expenses and to engage barristers, experts or law firms in other areas or jurisdictions to assist.
- Confidential information
We will hold in confidence and not disclose to any other person any confidential information which we obtain as your lawyers except to the extent allowed or required by law or the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Rules”) or to the extent necessary to enable us to carry out your instructions.
- You are not entitled to any confidential information which we have or obtain in relation to any other client or prospective client.
- Conflicts of interest
We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves and we will comply with the Rules in respect of conflicts of interest. This may mean that we cannot act for you further in a particular matter.
- If you believe that a conflict of interest has arisen or may arise, you must inform us immediately.
- Advice and services
The services that we are to provide to you are outlined in our letter of engagement along with any further instructions that you provide to us.
- Any advice given by us:
- is solely for your benefit and may not be relied on by any other person;
- must not be published or used for a purpose other than for which it was sought;
- is limited to the matters stated in it;
- is limited to and governed by New Zealand law; and
- is subject to changes in the law after the date on which it is given.
- We are not responsible for advising you about taxation issues.
- When our instructions on a matter are completed, our representation of you will come to an end and we will not be obliged to notify you of any subsequent change in law, nor to provide any further services in relation to the matter.
- Professional fees
Our fees are charged on the basis of the Rules which require that fees be fair and reasonable for the services provided.
- The following factors are taken into account in determining a fair and reasonable fee:
- 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 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 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.
- Many of the foregoing factors are taken into account in the standard hourly rates of our individual lawyers which we will apply in calculating our fees, subject to other factors relating to the specific instruction and to the overall requirement to be fair and reasonable. We may change the rates for fees and services from time to time. We review them regularly and usually adjust them on 1 April each year. Time spent is recorded in six-minute units. Unless otherwise agreed with you at the start of our engagement, we do not provide itemised breakdowns of our attendances on matters.
- Office services and disbursements
Our fees for professional services incorporate the overhead cost of normal secretarial, word processing and other assistance provided to our lawyers.
- Our fees for professional services also incorporate the overhead cost of office services (which cover internal photocopying, library subscriptions, photocopying and printing, certifying documents, IT equipment, telecommunication services, postage, document storage costs and the like).
- In providing the services, we may incur disbursements and payments to third parties on your behalf (including courier costs, external printing and photocopying costs, Ministry of Justice, Ministry of Economic Development and Land Information NZ fees, fees of experts, barristers and overseas lawyers and travel and accommodation costs). You authorise us to incur those disbursements that are reasonably required to undertake the services. These will be charged separately from our fees and will be separately itemised on our invoices or separately invoiced. We will discuss with you any major or unusual disbursement before we incur it and where a material disbursement is likely to be incurred, we may ask that this be paid to us before that cost is incurred.
- The firm utilises specially-designed document management software for documentary discovery and management of litigation documents and exhibits. Use of the software incurs an external periodic fee by the software provider which is charged as a disbursement.
When we provide an estimate, it is a guide only and not a fixed quote unless otherwise agreed in writing. Any material 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 otherwise stated, any fee estimate or fixed fee arrangement will be exclusive of GST, disbursements and service charges. Any work that you ask us to do outside the scope of our estimate or fixed fee arrangement will be charged for separately. This includes supplementary reporting or explanations, and any additional work we do because any of our assumptions are not correct.
- 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.
- GST Additional
Our services will usually attract GST. If this is the case, GST is payable by you on top of our fees and charges. If at any time the New Zealand Inland Revenue Department notifies us that we are required to pay an amount of GST in respect of services provided to you that is more than the amount of GST invoiced to you, you must pay the amount of the difference on demand to us.
We normally issue invoices monthly. We also issue an invoice on completion of matters. We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time.
- Our invoices must be paid within 14 days of issue unless otherwise arranged with us.
We may ask you to pre-pay amounts to us, or to provide security for expenses and our fees. We may cease or delay performance of our services until the requested pre-payment or security has been received. We will have your authority to draw on the amounts paid towards our fees and expenses as they become due.
- Trust Account
Our firm maintains separate trust accounts for all funds which it receives from clients (except for funds which are for payment of our invoices after those invoices have been rendered).
- If it is necessary for us to hold significant amounts on your behalf, we may lodge those funds on interest earning deposit with a registered bank. Any interest earned, less withholding tax, will be credited to you.
- We may charge an administration fee of 5% of the net interest earned. If we deposit funds on your behalf, we will need either your IRD number or a copy of your interest withholding tax exemption certificate.
- We may deduct from funds held on your behalf in our trust account any fees, costs or disbursements for which we have provided an invoice.
- Unpaid invoices
If payment to us of any invoice by you is overdue, we may:
- cease performing any further work for you until all unpaid invoices are paid in full;
- retain custody of any of your property (including documents or files) until all unpaid invoices are paid in full;
- require an additional payment of fees in advance or other security before recommencing work; and
- 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.
- Unless we have a separate arrangement with you, if an amount is overdue beyond 60 days, we will charge interest on that amount at the rate of 1.5% per month.
You may terminate this agreement at any time. We may terminate this agreement in the circumstances permitted by the Rules.
- You must pay us for the services which we provide, and for all expenses which we have incurred, up to the date of termination.
- Documents, Records and Information
We will keep a record of all important documents which we receive or create on your behalf on the following basis:
- 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).
- 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.
- 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, at our own cost.
- 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.
- 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.
- 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 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.
- 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.
- Intellectual property
We retain all ownership rights in all intellectual property of any kind created by us for you. You may not reproduce our intellectual property or provide it to a third party without our express consent.
- Anti-Money Laundering Compliance
We do not generally provide services falling withing the Captured Activities of the Anit-Money Laundering and Countering Financing of Terrorism Act 2009. Where we are required to receive payments from you or on your behalf, other than for our fees, we will need to perform identity checks on you, anyone providing instructions on your behalf and any beneficial owners or controlling persons. We will not be able to begin or continue acting for you until we have completed customer due diligence. You agree to provide us with the identity information requested and consent to us passing that information to the relevant document issuer, record holder, credit bureau and authorised, third parties for the purpose of verifying your identity and address. Where we perform identity verification, we will on-charge to you the costs of doing so. We may be required to report certain information or transactions and are unable to tell you when we have done so.
- Electronic communications
We may communicate with you and others at times by electronic means and we do not accept responsibility for, and will not be liable for any damage or loss caused in connection with, the interception or corruption of an electronic communication.
- Governing law
New Zealand law governs our relationship and New Zealand courts have non-exclusive jurisdiction.
We may change these terms at any time. We will publish the changed terms on our website. The change will bind you in respect of any matters on which we accept instructions after publication of the change.
- Duty of Care
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.
- Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
- 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.
- 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.
- Limitations on our Liability
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 paid under the Professional Indemnity Insurance held by the firm, up to a maximum of $5 million;
- Where no amount is available to be paid out under our relevant insurance policies, the lesser of $500,000 and 5 times our fees applicable to the matter (or series of matters) (excluding disbursements and GST).