Terms

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Introduction

These Terms of Engagement (“the Terms“), together with any engagement letter (“Engagement Letter”) and any fee estimate, form the agreement (“Agreement“) between Malloy Goodwin Harford (“we/us“) and you, the client (“you“). The Terms include both these Terms of Engagement and the separate terms of engagement where a trustee company of Malloy Goodwin Harford or a partner of Malloy Goodwin Harford acts as a trustee of a trust (see https://mghlaw.co.nz/trustee-terms/).

The Terms include information which we are required to provide under the Rules of Conduct and Client Care for Lawyers issued by the New Zealand Law Society in 2008 (“NZLS Rules“) and Anti-money Laundering (AML) and Countering Financing of Terrorism (CFT) laws and laws relating to tax and client reporting and withholdings.

The following summarises important information relating to the scope of our role for the legal services we provide and the basis upon which fees are calculated.

Scope of our Role

  • We will represent and advise you on all legal matters that properly fall within the scope of your instructions (“Services“). The Services may from time to time include our acting as an independent trustee incidental to the provision of legal advice. Our acting in this role is subject to the Terms.
  • Our representation and advice does not (nor shall it be deemed to) extend to:
    • Accounting, taxation or financial advice.  You should seek this advice from an accountant or tax advisor.
    • Valuation advice, including as to the current market value of any property, the current rental for any property and the value of any shares.  You should seek this advice from a valuation expert.
    • Investment advice.  You should seek this advice from a qualified financial advisor.
    • Advice in relation to the creditworthiness or suitability of any party to any transaction.
    • Advice in relation to the commercial wisdom in proceeding with any transaction.
    • Advice in relation to the interpretation of any report prepared by any third party engaged by or on behalf of you or any other party to a transaction including, for example, any report prepared by a building inspection firm, valuation firm or investment advisory firm
    • Advice in relation to any report prepared by Council or any third party and included in the LIM report, for example, geotechnical reports, seismic risk reports or flood reports.

(together, Excluded Services)

  • Our understanding of your instructions on engagement will be set out in an Engagement Letter. If you are expecting us to perform any additional services to those we have recorded in any Engagement Letter then please let us know as soon as you can.
  • We will act in accordance with your instructions and any applicable professional or legal obligations. We will use all due care and skill in doing so.
  • Unless you instruct us to do so and we agree to do so in writing, we will not remind you about relevant dates (eg: PPSR financing statement renewal dates, lease renewal or rent review dates or trademark renewal dates) or update advice after it is given.
  • Our duties are owed to you. Unless otherwise agreed in writing or required by law, those duties will not extend to others, including, for example, associated parties such as shareholders or related companies, directors or employees, or parents or other family members. If any other parties wish to retain us, they should do so by separate agreement.
  • We only provide advice on matters under New Zealand law. If you need advice on matters in other jurisdictions we can assist you to contact a lawyer in the relevant country.
  • When your instructions on a matter are completed, our representation will end.

Fees

  • Further to the hourly rates set out in any Engagement Letter and any advice on the structure of fees to be charged, we can when requested give estimates of the likely fees based on our experience with similar matters. Estimates are given as a guide only and not as a fixed quotation. We will endeavour to inform you if we are likely to exceed the estimate by any substantial amount. Upon request, we will also inform you periodically of the level of fees incurred or inform you when fees reach a specified level.
  • We also charge for disbursements incurred on your behalf in performing the Services. You authorise us to incur these disbursements, which may include such items as search fees, Court filing fees, registration fees and travel and courier charges which are reasonably necessary to provide these services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake these services (which may include items such as expert’s 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).
  • Unless otherwise stated, our stated rates and any estimates of cost do not include goods and services tax (GST) and disbursements. GST is charged as and when required by law.
  • In the case of most property, loan, commercial or other transactions where there is a specific settlement date, all fees and expenses must be paid not later than the settlement date. Interim invoices may also be issued monthly, during the course of the engagement.
  • In all other cases, fees and expenses will be invoiced monthly unless otherwise agreed.
  • All fees and expenses will be payable by the 14th day following the date our invoice is rendered.
  • In default of payment when required, we may charge interest at 2% above the current ASB Bank Lending Rate for unsecured personal loans on any amount outstanding and reserve the right, if necessary, to recover all costs and expenses if legal action is necessary to recover from you an overdue amount.
  • Failure to pay fees and expenses on time may, at our discretion, lead to suspension of the Services, or termination of the engagement. All reasonable fees and expenses up to suspension or termination shall be and remain payable, notwithstanding the suspension or termination.
  • We may also at our discretion require payment of money on account in advance, or during the course of, an instruction or retainer before commencing or continuing any work.
  • We reserve the right to retain Deeds and documents until all monies due for fees and expenses are paid, even if the monies are due for Services unrelated to those documents.

Payments

  • 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.
  • If you have a difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
  • Payment should be made by direct credit to our firm trust account, details of which are included in any Engagement Letter and will be included on our invoice.

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 then 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 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.
  • 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.
  • Unless it is not reasonable or practical 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 subject to you having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank. Interest earning from on call deposits less withholding tax and commission at a rate of 5% will be credited to you.

Conflicts of Interest

  • We are obliged to protect and promote your interest 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 comply with 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 need to terminate our engagement. If you believe a conflict of interest or potential conflict of interest has arisen or may arise, please advise us immediately.

Files and Information Provided

  • We will open a file at the start of each matter. The information that we retain in that file will be stored in and kept for at least six years after the matter is completed. After that period the file may be destroyed and any other information that we hold about the matter may be deleted. If you provide us with any papers which form part of the file in which you will want returned to you, please be sure to advise us at the time that these are supplied.
  • At the conclusion of our matter where you are provided with an invoice and statement that is required to be provided at a later date to your accountant or other entity, then please retain that statement and/or invoice for that purpose. If we are required to provide a replacement on your behalf then there may be a cost for doing so.
  • While we use virus checking software, we accept no responsibility for viruses or any similar corrupting device in any emails or any attachments which come from us. We also do not accept any responsibility for any changes to, or interception of, any email or any attachment before it arrives or after it leaves our information systems, nor any liability for loss arising from non-receipt of any email or other communications.  Further, we do not accept any liability when acting in reliance upon any information we reasonably believe has been provided by you (in particular in any electronic communications).

Confidentiality and Personal Information

  • We will hold in confidence all information concerning you or your affairs that we acquire during the provision of Services to 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.
  • We will collect and hold personal information about you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We will use that information to carry out the Services and to make contact with you when necessary. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the Services.
  • You, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons 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:
    • names and addresses 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;
    • names and dates of birth to agencies which undertake Politically Exposed Persons checks for the purposes of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“AML Act”); and
    • names, IRD numbers and tax information to banks with which we place your funds through our trust account. Information provided to banks may in turn be passed on by banks to tax and other regulatory authorities in New Zealand and offshore.
  • The information we collect and hold 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 us.
  • The Financial Transactions Reporting Act 1996 and the AML Act requires us to collect from you and to retain information required to verify your identity. 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 and you authorise us to collect such information from your accountants, investment advisors and banks.
  • We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to) the AML Act and laws relating to tax and client reporting and withholdings. 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.
  • If the information required is not provided, or is considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may be unable to commence the provision of Services or may terminate the provision of Services to you.

Intellectual Property

  • We retain all ownership rights in all intellectual property of any kind created by us for you. You may not reproduce our intellectual property or provide it to a third party without our consent.

Termination

  • You may terminate this Agreement at any time. We may terminate this Agreement in the
    circumstances permitted by the NZLS Rules.
  • Termination will not affect your obligation to pay our fees for all Services performed up to
    termination and for all expenses we have incurred on your behalf. Any of the terms and conditions
    of the Engagement Letter or the Terms that are intended to apply after completion of the Services
    will continue to apply following termination.

Professional Indemnity Insurance and Lawyers’ Fidelity Fund

  • We maintain professional indemnity insurance that meets or exceeds the Law Society’s requirements.
  • The Lawyers’ Fidelity Fund established by the New Zealand Law Society is available to reimburse people who suffer loss by reason of the theft by a lawyer of money or other valuable property entrusted to the lawyer. 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. The maximum amount payable by the Fidelity Fund by way of compensation to a claimant is limited to $100,000.

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 services, please contact the writer or the partner responsible for your business or affairs.
  • 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 the person has dealt with your complaint, then please raise the matter with the partner responsible for your business or affairs. 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

Wellington 6140

Phone: 0800 261801

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