Terms of Engagement

1. Application of these Terms

1.1. These Terms of Engagement (Terms) apply to all legal and other services and advice provided by Finance Law Limited to you (together Services), except to the extent we expressly otherwise agree in writing. These Terms will apply on that basis to all future engagements with us whether or not we send a further copy of them to you. You do not need to sign any documentation to indicate your acceptance. Your acceptance and agreement to these Terms will be implied by your continuing to engage with us.

1.2. We may amend or replace these Terms from time to time, by displaying the amended Terms on our website, www.finance-law.co.nz. The amended or replaced Terms will apply from the time you commence a new engagement or instruction with us after the time the amended or replaced Terms are displayed.

2. Scope of our Instructions

2.1. The scope of the Services we are to provide to you are outlined in our Engagement Letter and will be provided in accordance with applicable laws and the Rules of Conduct and Client Care issued by the New Zealand Law Society (Client Care Rules). Our Client Care and Service Information required to be provided under those rules are set out below.

2.2. Our advice and services are limited to New Zealand law. If we are requested to comment or assist on matters to which foreign law applies, if we do so it is on the basis that you accept we will have no liability to you in relation to that, and we recommend that you obtain advice from a lawyer in the relevant jurisdiction on those matters.

2.3. We do not provide any advice on investments, taxation or GST and by engaging us you agree that we shall have no liability to you (whether in contract, tort (including negligence) equity or otherwise) in relation to those matters. We recommend that you obtain prior advice from your financial advisers on those matters.

2.4. Our client will be the party identified as such in the Letter of Engagement. No other person or entity can rely on our advice, unless otherwise specifically agreed in writing by us. Our duties are to our client alone.

2.5. We do not purport to be experts in all fields of law. Where we consider it desirable to do so, we may engage other lawyers to advise on areas of their specialist expertise and by engaging us, you agree to us doing so. You will not be liable for their fees unless you agree to be.

2.6. Our Services do not extend to the quality or nature of any real or personal property. For example, unless otherwise agreed in writing by us in relation to a specific instruction, our Services do not extend to advice on matters relating to buildings subject to watertightness issues, property contaminated by toxic drugs or chemicals, earthquake prone buildings or the seismic strength of buildings or other structures or relationship property advice.

3. Duty of Care

3.1. 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.

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

3.3. 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 or you.

3.4. 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.

3.5. 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.

4. Confidentiality

4.1. We will comply with our obligations to hold in confidence all information concerning your legal affairs that you disclose to us, except to the extent required:

4.1.1. to comply with your instructions;

4.1.2. by law or the Client Care Rules;

4.1.3. by the Inland Revenue Department;

4.1.4. to facilitate placing funds held in trust on deposit with a bank as required by the Client Care Rules;

4.1.5. to comply with any inter-governmental agreement to which the New Zealand government has entered relating to the exchange of information, such as FATCA;

4.1.6. to comply with anti-money laundering and countering financing of terrorism legislation, and you agree to us providing information in accordance with these requirements. There may be circumstances where we are not able to tell you if we do provide such information. We may also disclose information we have acquired in the course of acting for you if that information is a matter of public record or publicly known.

4.2. We are not permitted to disclose to you information held in confidence by us received from any other client.

4.3. We will provide to you on request copies or originals (at our option) of all documents which you are entitled to under the Privacy Act 1993. We may charge reasonable costs for doing this. If you are an individual, you are entitled to require us to correct any personal information we hold which relates to you. Please contact any Partner at our firm to do so.

4.4. You authorise us to disclose your name and address to third parties such as credit reference agencies to perform a credit reference or to undertake credit collection processes if it is reasonable to do so.

4.5. 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. You agree to us obtaining and retaining that information. We may also be required by law to obtain from you checks as to the source of funds associated with any transaction to which our Services relate if we consider we are required to by law.

5. Conflicts of Interest

5.1. We will comply with our ethical requirements and procedures relating to conflicts of interest contained in the Client Care Rules.

5.2. Where we receive instructions that give rise to a conflict of interest, we may need to refer you, the other client, or both parties to another lawyer for independent advice.

5.3. Where appropriate, after discussing the conflict with you and the other party, it may be possible for us to act for both clients with their informed consent (for example, in relation to non-contentious or largely routine matters). However, if commercial or legal negotiations arise during the course of that matter, or a dispute arises between the parties subsequently, it is likely we would be required by our professional obligations to refer one or both clients away for independent legal advice, or we may be unable to act for either party.

5.4. We will not knowingly accept instructions from a client to commence legal proceedings against another client of ours while we continue to act for them, or if we have any information or knowledge from a prior client that may materially affect the proceedings, dispute or transaction.

6. Our Fees

6.1. Our fees will generally be rendered either monthly or on completion of an instruction or engagement or a significant part of an instruction, or when we incur a significant expense.

6.2. Fees will be charged in the manner communicated to you in our engagement letter or other  communication, or in the absence of a specific agreement, at our usual hourly rates. The different hourly rates reflect the differing levels of experience and specialisation of our personnel.

6.3. Our fees will reflect the factors to be taken into account as set out in rule 9.1 of the Client Care Rules, being:

6.3.1. the time and labour expended;

6.3.2. the skill, specialised knowledge, and responsibility required to perform the services properly;

6.3.3. the importance of the matter to the client and the results achieved;

6.3.4. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client;

6.3.5. the degree of risk assumed by the lawyer in undertaking the services, including the amount and value of any property involved;

6.3.6. the complexity of the matter and the difficulty or novelty of the questions involved;

6.3.7. the experience, reputation, and ability of the lawyer;

6.3.8. the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients;

6.3.9. whether the fee is fixed or conditional (whether in litigation or otherwise);

6.3.10. any quote or estimate of fees given by us;

6.3.11. any fee agreement (including a conditional fee agreement) entered into between us and you;

6.3.12. the reasonable costs of running a practice;

6.3.13. the fee customarily charged in the market and locality for similar legal services.

6.4. Invoices are due to be paid by the 20th of the calendar month following the date of the invoice, or 30 days after the invoice is rendered, whichever is earlier. Invoices are to be paid by direct credit to our bank account, being account number 12-3252-0006146-02, without deduction or set-off.

6.5. Time spent on a matter is recorded in 6 minute units, with time rounded up to the next 6 minute unit.

6.6. We will provide an estimate of our fees if requested. Any estimate given is based on the circumstances known by us at the time it is given and the assumptions set out in the estimate itself. The estimate will be an estimate only, and the ultimate fee may vary from the estimate, due to factors outside our control, the actions of third parties or otherwise, the circumstances changing or the assumptions not applying.

6.7. If we provide you with an estimate or fixed fee quote, attendances for matters outside the scope of the quote will be charged at our usual hourly rates.

6.8. Even if you ask us to render our invoice or part of our invoice on a matter of yours to a third party, you will remain liable to pay that account if the third party does not pay when due.

6.9. If our invoice is not paid when due, interest at the rate of 1.5% per month will accrue from the due date until payment in clear funds is made to us. If our fees are paid by cheque, they shall be treated as unpaid until the cheque clears.

6.10. If we take action in order to recover our fees, you agree to pay to us on demand the amount of all legal costs and disbursements (on a solicitor and own client basis) incurred by us in relation to the recovery . You also agree that we may charge for our own time in relation to recovery action at our then current usual hourly rates.

6.11. You agree to us obtaining credit checks from credit reference organisations relating to you, at our own cost, and to provide credit reference information to those organisations relating to you if you are in excess of 60 days in arrears in payment of an invoice to us.

6.12. You authorise us to deduct from any funds held on trust by us for you (including an Interest Bearing Deposit) the amount of any invoice (including in relation to disbursements) we have rendered to you. We will not deduct fees from sums held on trust unless our invoice has been rendered to you.

6.13. We do not charge separately for items such as photocopying, postage, toll calls, mobile telephone calls, or stationery. However, we will charge an Office Services Fee of 2.5% of our gross GST exclusive fees rendered to cover items of that kind.

6.14. Disbursements or costs paid to third parties by us relating to your matters including but not limited to LINZ search and registration fees, Client ID Verification with 2shakes Limited, Companies Office and PPSR search and registration fees, service agent fees, Court filing fees, couriers and our travel, will be charged to you at the same cost as we incur, or a reasonable estimate of that if not billed separately to us, without further margin by us. We may require you to pay anticipated invoices that exceed $250 in aggregate in advance. You authorise us to incur disbursements and make payments to relevant parties on your behalf which are reasonably necessary to provide our Services to you.

6.15. If our invoices are in arrears, we may stop work on any matters that we continue to act on until the arrears are paid in clear funds.

6.16. We may require payment of estimated fees and disbursements in advance if we have acted for you for less than 12 months, or if you have been late paying any invoice to us previously.

6.17. GST (if any) is payable by you on our fees and charges at the same time as payment of the relevant fee is due.

7. Limitations of Our Liability

7.1. Unless we otherwise agree in writing with you with express reference to this clause 7 of these Terms, to the extent permitted by law our aggregate liability to you (whether in contract, equity, tort (including negligence) or otherwise howsoever) relating to your instructions to or engagement with us, our advice to you or our Services in relation to a matter (including any closely related matters) is limited to the amount available to be paid out to you under any relevant insurance policy we maintain which meets or exceeds the minimum standards specified by the Law Society.

7.2. You agree that any claim by you against us must be made in writing within 2 years of the date the relevant advice or other Services were provided by us to you.

7.3. The limitations set out above exclude GST on the sum claimed, but includes all claims for legal costs and disbursements, other professional fees and disbursements including accountants, valuers, engineering or tax advisers, and also includes all out of pocket disbursements including travel and accommodation costs.

7.4. We shall have no liability to you in relation to consequential losses, loss of profits, indirect or special losses. You waive all your claims in relation to those items in consideration of us accepting our engagement.

7.5. If we provide our Services to you for the purposes of a business, you agree that the Consumer Guarantees Act 1993 will not apply.

7.6. You also waive any claim you may have against our staff or employees personally so that your claim will be against our firm only, and you agree those claims will be limited as set out in these Terms to the extent permitted by law.

7.7. If we provide Services to any person or entity associated with you or related to you, then paragraph 2 of these Terms will apply. Our aggregate liability to them (if any) will be subject to the limitations in these Terms, and you agree to ensure that they agree to this.

8. Communications

8.1. We will obtain from you your contact details, including your email address, postal address and telephone numbers. You agree that we may provide documents, communications, our invoices, and our statements to you by email. You will advise us by email or by letter if any of your contact details change.

8.2. You agree that we may from time to time provide newsletters and information bulletins to you by email or by post. You can request us to stop sending these to you at any time.

9. Termination

9.1. You may terminate our retainer at any time by email or by other written instruction.

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

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

10. Feedback and Complaints

10.1. 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 Services provided by us, including how we can improve our Services, please contact the Partner responsible for your business.

10.2. 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 or another Partner at our firm. We will inquire into your complaint and endeavor in good faith to resolve the matter with you in a way that is fair to all concerned.

10.3. 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
P O Box 5041
Wellington 6140
New Zealand
Phone: 0800 261 801

To lodge a concern:
https://www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form

To make a formal complaint:
https://www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint

Email: complaints@lawsociety.org.nz

11. General

11.1. These Terms and our relationship with you are governed by New Zealand law and the New Zealand courts will have non-exclusive jurisdiction.

11.2. Our name and advice may not be copied or quoted in any public document or statement, financial statements or offering document without our prior written consent. Unless required by law, you may not provide our advice to any other person or authority without our prior written agreement.

11.3. The consents and authorisations given by you to us in these Terms are irrevocable unless otherwise agreed in writing by us.

11.4. Unless you instruct us in writing otherwise, you authorise and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents we hold for you 7 years after our engagement relating to those documents ends (other than any original documents 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.

11.5. We may at our option return documents (either in hard or electronic form) to you rather than retain them. If we elect to do this, we will do so at our expense.

11.6. We own all copyright in all documents or work we create in the course of performing the Services but grant to you a non-exclusive licence to use and copy the documents for your own personal or commercial use. However you may not permit a third party to copy, adopt or use the documents
without our written permission.

12. Definitions

12.1. In these Terms:

Client Care Rules means the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

Including means including but not limited to.

Terms means these standard Terms of Engagement issued as at 1 August 2020.

Services means all advice, opinions, legal services, professional services or other related services provided by or agreed to be provided by us to you