TERMS & CONDITIONS OF ENGAGEMENT

1 October 2016

These Terms and Conditions apply in respect of all work undertaken by Heimsath Alexander (“HA” and “we”) for you, except to the extent that HA agrees otherwise with you in writing.

 
1. SERVICES

1.1. The services which we are to provide for you are outlined in our letter of engagement along with any further instructions that you provide to us (or that we record in writing).

1.2. 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.

1.3. Telephone or email requests or receipt of documents from you or from another party on your behalf are sufficient authority to instruct HA to act on your behalf unless we specify otherwise.

1.4. Once we have received and accepted your instructions to act either directly or indirectly HA is entitled to charge you for our services.

 
2. FEES

2.1. 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.

2.2. The basis on which our fees will be charged is set out in our letter of engagement. The factors we will take into account in determining the fees which we will charge are:

  • the time and labour expended;
  • the skill, specialised knowledge, and responsibility required to perform the services properly;
  • the importance of the matter to you and the results achieved;
  • the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
  • the degree of risk assumed by us 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 our engagement by other clients;
  • whether the fee is fixed or conditional (whether in litigation or otherwise);
  • any quote or estimate of fees given by us;
  • any fee agreement (including a conditional fee agreement) entered into between you and us;
  • the reasonable costs of running our practice; and
  • the fee customarily charged in the market and locality for similar legal services.

2.3. Where our fees are calculated on an hourly basis, the hourly rates are set out in our letter of engagement. The differences in those rates reflect the experience and specialisation of our professional staff. We adjust these rates from time to time to reflect levels of legal experience and changes in overheads. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.

2.4. We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise HA to deduct from funds held in the trust account for you or any of your associated or related entities, any fees, expenses or disbursements owing to HA or any consultants, barristers or other agencies contracted by HA on your behalf, or any associated or related company, entity, partnership, trust or person. HA does not require a signed copy of these terms and conditions to do so.

Disbursements and Third Party Expenses

2.5. 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.

2.6. 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). Any estimate is based upon the information supplied at the time, and is subject to GST and disbursements.

2.7. HA may require payment in advance for disbursements or expenses that we incur on your behalf.

Estimates

2.8. 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. 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 GST, disbursements and expenses.

GST

2.9. Goods and services tax (GST) is payable by you on our fees and charges at the rate prescribed by the Goods and Services Tax Act 1985, except where you are zero rated or exempt.

Invoices

2.10. We will send interim 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. Invoices are payable by the 20th of the month following date of invoice. Payment is upon completion of a file for conveyancing matters or as otherwise agreed.

2.11. Fees and disbursements are usually required to be paid before litigation work is undertaken.

2.12. 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.

2.13. If the third party has not paid us within the timeframes set out in these terms for payment, we reserve the right to issue you an invoice for the outstanding amount. You must then pay the invoice in accordance with these terms and you may seek reimbursement from the third party.

2.14. If you direct us to invoice a particular entity and the entity is unable to pay our invoices or any part of them, you agree you are personally responsible for all outstanding invoices.

2.15. If you are unable to pay our invoices or any part of them, you agree that we may issue an invoice to any company under your control or under common control which is able to pay our invoice.

Overdue payments

2.16. HA may charge interest at 2% per month on overdue accounts. We also reserve the right to stop work on any files where you (or any of your associated entities) has overdue accounts. If we have to take steps to recover any unpaid account, the costs of recovery (including debt collectors’ charges) are all payable by you. We also retain a lien over your files if any accounts are unpaid.

 
3. TRUST ACCOUNTING

3.1. We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.

3.2. 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.

3.3. 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.

3.4. Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989. Interest earned from call deposits, less withholding tax and an administration fee payable to us of 5% of the interest.

 
4. CONFIDENTIALITY AND PERSONAL INFORMATION

4.1. 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:

4.1.1. to the extent necessary or desirable to enable us to carry out your instructions; or

4.1.2. as expressly or impliedly agreed by you; or

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

4.1.4. to the extent required or permitted by law.

4.2. 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.

4.3. 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.

4.4. Subject to clause 4.1, 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.

4.5. 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.

 
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:

5.1.1. 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).

5.1.2. 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.

5.1.3. 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 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. 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. TERMINATION

7.1. We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers, including conflicts of interest.

7.2. You may terminate our retainer at any time.

7.3. 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.

 
8. DUTY OF CARE

8.1. 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.

8.2. Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

8.3. 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.

8.4. 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.

8.5. 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.

 
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. GENERAL

10.1. These terms and conditions apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.

10.2. HA is entitled to alter its terms & conditions from time to time, and will send you any changes to these terms.

10.3. Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.

 

11. LIMITATIONS ON OUR OBLIGATIONS OR 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 payable under the Professional Indemnity Insurance held by the firm.

 

12. FEEDBACK AND COMPLAINTS

12.1. 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 Partner responsible for your business.

12.2. 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 Partner responsible for your business. 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.

12.3. 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

IMPORTANT NOTE: By instructing HA you agree to these terms and conditions and HA is not required to hold a signed copy.