Terms of Engagement
1 General
1.1 These 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.
1.2 We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
1.3 Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
1.4 If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the other provisions will remain in full force and effect.
2 Services
2.1 The services we are to provide for you (“Services”) are outlined in our engagement schedule along with any further instructions that you provide to us in writing (or that we record in writing).
2.2 In providing the Services to you, we will:
a. act competently, in a timely way, and in accordance with instructions received and arrangements made:
b. protect and promote your interests and act for you free from compromising influences or loyalties:
c. discuss with you your objectives and how they should best be achieved:
d. provide you with information about the work to be done, who will do it and the way the services will be provided:
e. charge you a fee that is fair and reasonable and let you know how and when you will be billed:
f. give you clear information and advice:
g. protect your privacy and ensure appropriate confidentiality:
h. treat you fairly, respectfully, and without discrimination:
i. keep you informed about the work being done and advise you when it is completed:
j. let you know how to make a complaint and deal with any complaint promptly and fairly.
2.3 We are not qualified to give:
a. investment advice – you should get that advice from a qualified financial advisor;
b. valuation advice – you should get that advice from a qualified valuer;
c. tax advice – you should get that advice from your accountant or tax advisor;
d. insurance advice – you should get that advice from your insurance broker; or
e. advice about foreign laws – we can help you to contact a lawyer in the other country.
f. advice surrounding the wisdom of a decision – our scope is limited to the provision of legal advice surrounding the Services only.
2.4 Unless we agree to do so in writing, we will not:
a. remind you about dates (for example, PPSR, lease, or consent expiry dates); or
b. update advice after it is given.
3 Communications
3.1 We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.
3.2 Unless you let us know otherwise:
a. if you are a couple, we can accept instructions from either of you;
b. if you are a trust, we can accept instructions from any of your trustees or officers;
c. if you are a partnership, we can accept instructions from any of your partners or officers;
d. if you are a company, we can accept instructions from any of your directors or employees or any other person you have authorised to instruct us; and
e. if you are a body corporate or incorporated society, we can accept instructions from any person holding themselves out as being authorised by the officers to instruct us.
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: In determining our fee, we take into account the reasonable fee factors which are set out in r 9 of the Lawyers: Conduct and Client Care Rules 2008 (“Rules”). These are as follows:
a. the time and labour expended:
b. the skill, specialised knowledge, and responsibility required to perform the services properly:
c. the importance of the matter to the client and the results achieved:
d. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:
e. the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:
f. the complexity of the matter and the difficulty or novelty of the questions involved:
g. the experience, reputation, and ability of the lawyer:
h. the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:
i. whether the fee is fixed or conditional (whether in litigation or otherwise):
j. any quote or estimate of fees given by the lawyer:
k. any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:
l. the reasonable costs of running a practice:
m. the fee customarily charged in the market and locality for similar legal services.
4.2 Our engagement schedule will specify the basis of our charges. Where it is not specifically particularised, then the fees will be a fair and reasonable rate taking into account those factors set out in clause 4.1 above. In this respect:
a. If the engagement schedule specifies a fixed fee, we will charge this amount for the agreed scope of the Services. Work which falls outside that scope will be charged on an hourly rate basis set out in paragraph (b) below. 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 the work are as follows:
i. Director: $400 per hour
ii. Senior solicitor: $350 per hour
iii. Solicitor: $300 per hour
iv. Law clerk: $150 per hour
v. Legal assistant: $100 per hour
c. 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. Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account those factors set out in clause 4.1 above.
4.3 Additional expenses:
a. We may have to cover some expenses or make other payments on your behalf (such as search fees, registration fees, travel costs, court fees, counsel fees, and agents’ fees). You authorise us to incur these expenses, which will be shown on our account to you as a disbursement.
b. We may charge you an administration fee to cover office expenses (such as photocopying, printing, phone calls, faxing and file storage). Generally, this administration fee will be $60 and will be included in our first account to you. We reserve the right to charge additional administration fees in subsequent accounts. Any administration fees will be included separately in our accounts to you.
c. If we are required to travel on your behalf and use our vehicle in doing so, then we may charge you at a rate of $1.00/km in addition to any parking charges which may be incurred.
d. To enable us to comply with our legal obligations in respect of compliance under the AML/CFT Act the administration fee for this compliance will be $25 for each person for whom customer due diligence is required.
e. If we receive a request for information from your auditor or accountant, you authorise us to supply the requested information and you agree to pay us our usual fee for doing so.
4.4 GST: Our services usually incur Goods and Services Tax (“GST”). If this is the case, then GST will be payable by you on our fees and charges.
4.5 Invoices: Unless stated otherwise, we will periodically send invoices to you during the course of the engagement. 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.
4.6 Payment: Invoices are payable in full (without deduction or set off) within 7 days of the date of the invoice. In this respect:
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. cancel any discount on fees that we have granted, provided the discount relates to an outstanding amount owed to us, or any discount that we have agreed to grant in the future. After cancelling a granted discount, we may then issue a new invoice for the discounted fee amount plus GST;
ii. require interest to be paid on unpaid amounts, calculated at the rate of 1.5% per month calculated on a daily basis, and charged monthly for the period that the invoice is outstanding;
iii. stop work on any matters in respect of which we are providing services to you;
iv. require an additional payment of fees in advance or other security before recommencing work; and/or
v. 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. If we act for ourselves, we will be entitled to costs in an amount equal to the time incurred by us in the matter multiplied by the relevant hourly rate set out above, plus the expenses and disbursements set out in these terms. Our time will be calculated as if we were acting for a client of the firm in the proceeding and otherwise in accordance with these terms.
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: We may, from time to time, provide you with an estimate of our fee for undertaking the Services (or any portion of the Services) at any time. An estimate is not a quote. Unless specified, an estimate excludes GST, disbursements and expenses.
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 are primarily responsible for payment to us in accordance with these Terms. If, for example, the third party does not pay our fees, then you are responsible to pay our fees and expenses.
4.10 Legal aid: In some cases, you may be eligible for legal aid. If you want to apply for legal aid, we may refer you to another firm as we do not carry out legal aid work.
5 Trust accounting
5.1 We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.
a. Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.
b. We require cleared funds before those funds can be disbursed. If funds are not yet cleared, we may wait until such funds are cleared before we disburse those funds in accordance to your instructions. We will not be liable for losses which you may suffer as a result of any delay resulting from our waiting for receipted funds to clear.
c. A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.
d. Monies held in our trust account do not accrue interest. We will, where reasonable and practicable, transfer monies held in our trust account in an on-call interest bearing deposit if we consider that the monies will expect to earn over $500 for the intended duration of the deposit. We will not be responsible for the following:
i. For not placing monies in an interest-bearing deposit if the expected interest earning is $500 or less.
ii. For not placing the monies in an interest-bearing deposit if you have not provided us with a completed self-certification information as required under the Automatic Exchange of Information.
iii. For not taking steps to obtain the best interest rate for the funds.
iv. For any delays in placing your funds in interest-bearing deposit.
5.2 If we hold a small amount value of funds (less than $100), and we are unable to contact you, you authorise us to deduct those funds from our trust account and pay the funds to a charity of our choice.
6 Confidentiality and Personal Information
6.1 Confidence: We will hold confidential 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 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 6.1, 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.
6.6 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere.
6.7 Verification of identity: The Financial Transactions Reporting Act 1996 requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). 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 Documents, Records and Information
7.1 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).
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.
7.2 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.
7.3 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.
7.4 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 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.
7.5 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.
7.6 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.
8 Compliance
8.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
a. Anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
b. Laws relating to tax and client reporting and withholdings.
8.2 We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin acting, or to continue acting, for you until that is completed.
8.3 To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties (such as government agencies). There may be circumstances where we are not able to tell you or such persons if we do provide information.
8.4 It is important to ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
9 Indemnity Insurance and Fidelity Fund
9.1 We hold professional indemnity insurance that exceeds the New Zealand Law Society’s minimum standards.
9.2 The New Zealand Law Society operates a Lawyers’ Fidelity Fund to compensate clients who suffer theft of money or property entrusted to lawyers. The Fund covers losses of up to NZ $100,000 per individual claimant. It does not cover loss where you have instructed us to invest money on your behalf (subject to limited exceptions set out in the Lawyers and Conveyancers Act).
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 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 We limit our liability to you. The maximum aggregate amount that we will have to pay you is the amount set by the New Zealand Law Society as the minimum standard for the indemnity limit on our professional indemnity insurance. We will not have to pay you more than the maximum aggregate amount for anything caused by or resulting from anything we do or do not do, or delay in doing, whether or not it is contemplated or authorised by any agreement with you.
11.2 The limit in clause 11.1 applies to the extent permitted by law, whatever you are claiming for, and however liability arises or might arise if not for this clause (whether in contract, tort (including negligence), equity, or otherwise).
11.3 If you are more than one person (such as a couple or partnership, or a group), this maximum is the maximum combined amount that we will have to pay you together.
11.4 If you engage us to do work for the purposes of a business, you agree the Consumer Guarantees Act 1993 does not apply. Otherwise, nothing in this clause 11 limits any rights you may have under the Consumer Guarantees Act.
11.5 We shall not be liable for any loss or liability caused or contributed to by:
a. inaccurate or incomplete information supplied by you or third parties (including public records and expert witnesses); or
b. because you did not receive or read a communication which we sent you; or
c. a lack of instructions or lack of clear or timely instructions; or
d. our ability or entitlement to refuse to act or to continue acting for you including as a result of you owing us money.
11.6 Where we recommend or suggest you engage a third party to provide you with goods or services (“third-party provider”), our recommendation or suggestion will be made in good faith. Despite this, you agree that we will have no liability to you (whether in contract, tort (including negligence), or otherwise) for any act or omission of such third-party provider.
12 Guarantee
12.1 If you are engaging us on behalf of a director or trustee of a company or a trust (“client”), respectively, then by signing these terms, you are personally guaranteeing performance by the client of these terms, including but not limited to the client’s obligation to pay our account. You also personally indemnify us against any losses which we may suffer as a result of any breach of these terms by the client. In this respect:
a. if more than one person signs these terms, then the guarantee and indemnity shall apply between them jointly and severally.
b. the guarantee and indemnity shall, upon execution, be enforceable against all guarantors who have signed these terms, notwithstanding that any intending guarantors have not signed these terms.
c. The guarantee shall be a continuing guarantee and shall not be discharged by settlement of the account.
12.2 If more than one person client is a trustee(s) on behalf of a family trust, then each of the trustees (jointly and severally) are personally liable to pay our fees and charges. This guarantee will be a continuing guarantee and shall not be discharged by the settlement of account.
13 Termination
13.1 You may terminate our retainer at any time.
13.2 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.
13.3 If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
14 Professional indemnity insurance and Lawyers’ Fidelity Fund
14.1 We hold professional indemnity insurance that exceeds the New Zealand Law Society’s minimum standards.
14.2 The New Zealand Law Society operates a Lawyers’ Fidelity Fund to compensate clients who suffer theft of money or property entrusted to lawyers. The Fund covers losses of up to NZ $100,000 per individual claimant. It does not cover loss where you have instructed us to invest money on your behalf (subject to limited exceptions set out in the Lawyers and Conveyancers Act).
15 Complaints
15.1 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 director Max Gunawan, max@platinumlegal.co.nz. 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.
15.2 The New Zealand Law Society also has a complaints service. Please call 0800 261 801 for information and advice.