Terms of Engagement
- These Standard 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. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
- The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing) including emails.
- 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 trained staff in our firm.
- We will obtain from you contact details, including email address, postal address and telephone numbers. We will provide documents and other communications to you by email (or other electronic means) unless you advise us otherwise. You will advise us if any of your contact details change especially your email or cell phone details.
- We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time. Our usual form of communication will be by email
- 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 us to stop providing these.
Fees: The basis upon which we will charge our fees is set out in this letter.
- We will charge a fee which is fair and reasonable after looking at your interests and our interest. The New Zealand Law Society has laid down a number of guidelines and the following will apply where appropriate. Time spent on the job, the skill, specialised knowledge and responsibility required, the importance of the matter to you and the results achieved, any urgency or time limitations, risk assumed by us or value of assets involved, the complexity or novelty of the matter, and special skill or expertise brought by us to your task, any quote or estimate given by us and the fee customarily charged for similar work. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).This is available at www.lawsociety.org.nz
- If we specify 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 modified to reflect the guidelines to achieve a fair fee to you and us. 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.
- The fixed fees are set out in our conveyancing costs menu available on our website (www.hometransfer.nz). The base fee is for a freehold house owned by individuals. If it is a unit title, or owned, or to be owned by a company or a trust and if personal guarantees are needed the extra charges listed apply. Where the Lessor’s consent is required on leasehold land the Lessor’s lawyers fee will be charged in addition to our fees. Where your sale, purchase or refinance falls outside what is usual for reasons that cannot be foreseen, we reserve the right to charge for this additional work and we will advise you of this as soon as we are aware.
- Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work are set out in our engagement letter. Any differences in those rates reflect the different levels of experience and specialisation of our professional and trained staff.
- If we hold funds on your behalf you authorise us to deduct our fees from those funds (unless they have been provided for a particular purpose) and send you an invoice as required by the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.
- Fees: The basis upon which we will charge our fees is set out in this letter.
Payment: Conveyancing fees are to be paid on settlement and if selling we shall deduct these before paying any balance to you.
- Unless we advise otherwise fees for work other than conveyancing are to be paid within 14 days of our account being sent .
- Where a quote or estimate is provided for work other than conveyancing that we are to do for you, before we commence work we will require payment of that estimate or quote into our Trust Account.
- Our final account will be sent to you shortly after the matter is completed. Interim accounts will be issued where appropriate.
- Disbursements (charges that we have to pay to other organisations like the government, local council) must be paid by you immediately upon request. Substantial disbursements will be asked for in advance and we may require you to keep a deposit in our trust account to cover our fees.
- Interest will accrue on unpaid accounts at the rate of 15% per annum as from our invoice’s date. We will, if necessary, take debt collection action and if that happens all costs for that action are payable by you
- 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.
Trust Accounting: We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account.
- 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.
- 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 upon your request.
- 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 interest bearing deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989, subject to your having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank. Interest earned from call deposits, less withholding tax [and an interest administration fee payable to us of 5% of the interest], will be credited to you.
Confidentiality and Personal Information
Confidence: 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:
- to the extent necessary or desirable to enable us to carry out your instructions; or
- as expressly or impliedly agreed by you; or
- as necessary to protect our interests in respect of any complaint or dispute; or
- to the extent required or permitted by law.
- 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. All our staff are made aware of their requirement for strict confidentiality when they commence employment and that confidentiality remains after they leave our employ.
- 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.
- Subject to clause 5.1, 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.
- 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.
- 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. If you are an individual, you have the right to access and correct this information. If you require access, please contact our Privacy Officer Simon Carter – [email protected]
- Verification of identity: The Financial Transactions Reporting Act 1996, Land Transfer Act 1952, Anti-Money Laundering and Countering Financing of Terrorism Act 2009, Foreign Account Tax Compliance Act (FATCA) requires us to collect from you and to retain information required to verify your identity. We will ask you to show us documents verifying your identity (such as a passport or driver’s licence and collaborative evidence such as Credit card, bank or IRD statements). We will 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.
- Confidence: 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:
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 will keep an electronic record 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.
- 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 work 7 years after we have completed that work (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.
- 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.
- We will keep a record of all important documents which we receive or create on your behalf on the following basis:
Conflicts of Interest
- 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.
- 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. We will try and advise you of any potential conflicts of interest before a conflict arises
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.
- Unless otherwise agreed, we will primarily 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.
Limitations on our Obligations or Liability
- We do not accept liability for any loss arising from non receipt of any communication including email communications. We will use electronic means of communication unless you instruct us in writing not to do so.
- In all circumstances where you suffer loss directly or indirectly attributable to our performance you agree that your loss (including Special or Punitive Damages) is limited to the cover provided by our professional indemnity insurance even though you may achieve a judgement in aggregate for a greater amount.
- We hold professional indemnity insurance which exceeds the minimum standards set by the Law Society.
- The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers with protection against loss arising from theft by lawyers. The maximum amount to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers and Conveyancers Act 2006, the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.
- You may terminate our retainer at any time.
- 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.
- If our retainer is terminated, either by you or us, you must pay us all fees, disbursements and expenses incurred up to the date of termination.
Feedback and Complaints
- 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 in the first instance but if you are not satisfied with the response then to Simon Carter [email protected]
- 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 to Simon Carter [email protected] 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.
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
Phone: 0800 261 801
To lodge a concern:
To make a formal complaint:
Email: [email protected]