Bay Law Office Terms

TERMS OF ENGAGEMENT

These Terms apply in respect of all work carried out by Bay Law Office for you, except to the extent that we otherwise agree with you in writing. We are entitled to change these Terms of Engagement from time to time.

1. Introduction - Our Relationship

1.1  These terms apply to all legal services provided by us to you unless we have an alternative arrangement with you in writing.

1.2  Your continued instructions will constitute acceptance of these terms - there is no need for you to sign them. If you have any questions about these terms, please contact the solicitor responsible for your file.

2. Services

2.1  The Services which we are to provide for you are outlined in our Letter of Engagement.

2.2  We reserve the right to cease to act where you cannot or will not provide instructions required in addition to those specified in our letter of engagement.

2.3  Where appropriate, we may delegate your instructions to a solicitor or professional other than the solicitor originally instructed.

3. Communications

3.1  We will report to you periodically on the progress of any matter and will always try to keep you informed of any unexpected delays or changes in the character of the work being undertaken. You are welcome to request a progress report at any time.

3.2  If you provide us with an email address then we may email our communications to you without first letting you know, unless you tell us otherwise.

4. Fees

4.1  By instructing us, you accept liability to pay our account together with all disbursements incurred in respect of your instructions.

4.2  Our fees are calculated in accordance with the guidelines set by the New Zealand Law Society and take into account factors including:

  • 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 obtained.
  • 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 and 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 employment of the lawyer by other clients.
  • Whether the fee is fixed or conditional (whether in litigation or otherwise).
  • Any quote or estimate of fees that we have given you.
  • Any fee agreement (including a conditional fee agreement) entered into between us and you.
  • The reasonable costs of running a practice.
  • The fee customarily charged in the market and locality for similar legal services.

4.3  Where we have been instructed jointly by two or more people, each person shall be jointly and severally liable for the payment of our fees.

4.4  Our fees are payable by you regardless of whether the matter is resolved by settlement or by hearing, and regardless of whether you achieve the result that you want.

4.5  You are our client, and we have a duty to act in your best interests. However, in matters that are before the Court, we also have overriding duties as officers of the Court. This means that we have a duty to be completely honest with the Court, and to put all relevant law before the Court so that it can make its decision, whether the information supports your case or not. We also cannot put information before the Court if we believe that information to be untrue or misleading.

5. Estimates

5.1  Where possible, we will provide a fee estimate if you request one.

5.2  We will endeavour to ensure that any estimate of our fee is realistic, and where appropriate, we will state any significant assumptions in making the estimate. However, any estimate is only a guide, and the amount of the final fee may be more or less depending on all the circumstances. Our fee estimate may be stated as a range.

5.3  Unless otherwise stated, any fee estimate will not include office charges, disbursements or GST.

5.4  We emphasise that any fee estimate is not a quote, nor a cap on what may be charged.

6. Bureau Expenses and Disbursements

6.1  In addition to fees for our professional services, our bills may include bureau expenses and disbursements:

  • Bureau expenses cover office expenses that are not billed individually, such as postage, toll/mobile calls, photocopying, handling and long-term storage of your file. We charge $46.00 for bureau expenses.
  • Disbursements are specific identifiable costs that are payable to third parties such as LINZ search and registration fees and courier charges.

6.2  We reserve the right to increase our bureau expenses if additional work is required.

6.3  If we need to incur an expense or disbursement on your behalf which amounts to more than a nominal sum, we may request payment in advance.

7. Billing

7.1  We will normally bill conveyancing matters at settlement or on completion of the work. For all other matters we will normally send you a monthly account on an interim basis for ongoing matters involving work spread over more than one month.

7.2  Final accounts will be rendered on completion of each matter.

7.3  We may ask you for funds in advance to be held in trust and applied by us with your approval in payment of our fees and expenses.

8. Payment

8.1  Our accounts are payable within seven (7) days of the date of the invoice, unless alternative arrangements have been agreed with you in writing.

8.2  We accept payment by EFTPOS or direct credit.

8.3  For conveyancing matters, payment of our legal fees and expenses is required on settlement of the transaction.

8.4  We may deduct our fees and expenses from funds held in our trust account on your behalf. By instructing us, you authorise us to make such deductions.

8.5  Part payment of an account will not be accepted as partial settlement of the full amount of the account unless we agree in writing to accept the reduced amount as full settlement.

9. Unpaid Accounts

9.1  Should you have difficulty in meeting any of our accounts, please contact us without delay so that we may discuss whether a payment arrangement is appropriate.

9.2  If our account to you or any part of it remains unpaid beyond seven (7) days following the date payment was due, we may stop work on your matter, or terminate our representation in a manner which is consistent with our obligations.

9.3  You will be liable for all costs associated with the collection and recovery of your overdue and unpaid account (including costs on a solicitor/client basis and any credit agency fees) and we reserve the right to charge you interest on overdue accounts at the rate of 2% above the Bank of New Zealand’s 90-day bank bill buy rate as at the close of business on the date payment became due per month on the outstanding amount.

9.4  We reserve the right to retain original documents and correspondence on your file until such time our account to you or any part of it has been paid. This is known as a lien. This will be particularly important in circumstances where you decide for whatever reason to instruct another firm. We may request that other firm to give an undertaking to pay our outstanding account before your file is released.

9.5  Information you have provided may be used to assist in the collection of your overdue account and we may obtain from and give to any third party (including credit agencies) information which will assist us to obtain payment of the outstanding debt.

10. Funds - Trust Account

10.1  We operate a trust account. Money received by you or on your behalf may be held to your credit in the trust account. Payments out of the trust account will be made to you or to others with your authority. Written authorisation from you may be required where payment is to be made to a third party.

10.2  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 at any time upon your request.

10.3  Where appropriate, funds will be placed on call deposit with a trading bank registered under section 69 of the Reserve Bank Act 1989. Funds may also be placed on term deposit. Your written authority will be required for a term investment.

10. Funds - Trust Account (continued)

10.4  Interest earned from call deposits or term deposits, less withholding tax and an interest collection commission payable to us will be credited to your account.

10.5  In accordance with the Lawyers and Conveyancers Act 2006, monies held in our trust account but which are not placed on call or term deposit will not earn you interest.

10.6  If you request a payment from our trust account to be made by direct credit to your account, we will require evidence of the account number in one of the following forms:

  • Original bank deposit slip.
  • Signed handwritten bank deposit slip.
  • Signed letter from you.
  • Copy of cheque or bank statement.
  • Letter from your bank.

10.7  Because of audit requirements, text messages and emails are insufficient as evidence of your account number.

11. Confidentiality

11.1  Information disclosed to us by you will be afforded confidentiality to the fullest extent allowed by law, and by the New Zealand Law Society’s rules. All of our staff sign a confidentiality agreement which means that information will not be disclosed to anyone outside the firm except, so far as necessary, to further your interests.

12. Privacy

12.1  In order to provide services to you, and as part of our continuing effort to improve the services we offer, we maintain a database of basic client information (such as names, contact details and IRD number where appropriate). From time to time we may request that you confirm the accuracy of the information we hold about you. Such information will be used by us, our staff and agents for the purposes of acting on your behalf.

12.2  It may be necessary to obtain information on your behalf from other people, companies or institutions. One common instance is the confirmation of local council rate details on the sale of your property.

12.3  If you are an individual, you have a right to access information which we hold about you and may request correction of such information.

13. Verifying your Identity

13.1  The Financial Transactions Reporting Act 1996 and Anti-Money Laundering and Countering Finance of Terrorism Act 2009 (AML Act) require us to collect from you and to retain information required to verify your identity. We are therefore required to sight original documents verifying your identity (such as passport and proof of address), which we may choose to complete electronically via a third party partner. We will also need to obtain additional information about any business or trust that we are acting for. This will include the requirement to provide evidence of the source of wealth for that entity (which may extend to requiring independent verification of that information). We may retain copies of these documents.

13.2  We reserve the right to refuse to act for you, and the right to terminate an existing retainer, if you do not provide the requested information, or if you appear to be engaged in suspicious or illegal activities.

14. Foreign Account Tax Compliance Act (FATCA)

13.1  FATCA is US legislation directed at reducing tax evasion by US taxpayers, which is in force in New Zealand. As a result, we are required to make enquiry as to whether any controlling person of a company (director and shareholder) is a US citizen or US tax resident every time a new file is opened. If nothing has changed since your last declaration, then you do not need to do anything. If your situation has changed, then please contact us. If we do not hear from you then you are confirming that there have been no changes since your last declaration.

15. Conflicts of Interest

15.1  We take steps to ensure that no conflict of interest arises between clients from whom we have taken instructions. On the rare occasions that a conflict or potential conflict does arise, we will follow the New Zealand Law Society’s rules. In particular, we will:

  • Advise the clients involved of the conflict or potential conflict.
  • Advise the clients involved that they should take independent advice and arrange that advice if required.
  • Decline to act further for any client in the matter where to continue to act would, or would be likely to, disadvantage any of the clients involved.

15.2  If our services include the sale or purchase of a property involving a loan or mortgage, we will also be acting for the relevant bank. By instructing us to act for you, you consent to us acting for the lender or mortgagee bank and authorise us to give such undertakings as are necessary to complete settlement.

16. Files and Documents

16.1  Subject to any legal requirement, we retain the files we establish on a matter for a period 10 years after a matter is completed. We may hold that file electronically rather than physically. After that time we may destroy the file without contacting you.

16.2  We may agree to hold important legal documents or deeds relating to your legal affairs for safe keeping (e.g. signed wills, trust deeds, leases and commercial contracts). We will hold these documents at your risk, and we may also send them to a reputable secure document storage company in which case the documents will be held subject to our agent’s terms and conditions of service. While all reasonable care will be taken, neither we nor our agent will have any liability (direct or indirect) in relation to the provision of this service. These documents will not be destroyed unless requested by you or unless rendered obsolete by the passage of time or for other valid reasons, and you may request the return of these documents at any time. We reserve the right to cease providing this service and to return these documents to you at any time.

16.3  If you uplift your files or other documents at any time, we may make copies of them before they are uplifted.

17. Limitation of Liability

17.1  To the extent allowed by law, our aggregate liability to you (whether in contract, tort (including negligence), equity or otherwise) in connection with any matter (or series of related matters) will not exceed the amount available to be payable under the professional indemnity insurance held by us or the amount equal to five (5) times our paid fees relating to the matter or series of related matters to which the claim relates (excluding our bureau expenses, service fees,

17.2  If we are required to bring or defend proceedings with you then you agree that our internal legal costs and disbursements will be payable by you.

18. Overseas Investment Act 2005 (OIA) and Purchase of Residential Land

18.1  You can purchase “Residential Land” (as that term is defined in the OIA) without Overseas Investment Office (OIO) consent if you are:

  • A New Zealand citizen;
  • An Australian or Singaporean citizen buying residential land only; or
  • A holder of a New Zealand residence class visa or Australian or Singaporean Permanent Residence visa and you meet the relevant residency requirements under the OIA.

If you do not meet the relevant requirements, you may need to obtain OIO consent before buying, or you may not be able to buy a residential property in New Zealand.

18.2  By instructing us to act for you on a purchase of residential property in New Zealand, you warrant that you are entitled under the OIA to purchase residential property in New Zealand without OIO consent. To that end, you agree indemnify us to the fullest extent permitted by law for all costs, expenses, fines, damage and actions suffered by us as a result of your breach of warranty.

19. Overseas Funds

19.1  We do not offer the service of transmitting funds offshore as part of our ordinary course of business. We will ask that you provide us with a New Zealand bank account for receipt of all payments.

19.2  Transferring funds offshore is subject to various laws, including the Anti-Money Laundering and Countering of Terrorism Act 2009, which increases complexity and cost. Requests to transmit funds offshore will be considered by us on a case-by-case basis and may incur additional fees and costs.

20. Copyright

20.1  We own copyright in all documents or work we create in the course of performing our services but grant you a non-exclusive licence to use and copy the documents as you see fit for your personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our prior written permission.

21. Governing Law

21.1  These terms of engagement will be governed by and construed in accordance with the laws of New Zealand.

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