Terms

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Introduction

These Terms of Engagement (“the Terms“), together with any engagement letter and any fee estimate, form the agreement (“Agreement“) between Malloy Goodwin Harford (“we/us“) and you, the client (“you“).

These 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”).

Client Care and Service Information which we are required to provide to you is set out at the end of the Terms.

All services performed by us on or after 1 August 2008 are provided on the basis of the Terms (as may be updated from time to time).

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)

  • We will normally set out our understanding of your instructions in an engagement or initial reporting letter. If you are expecting us, or would like us, to perform any services in addition to those we have recorded, 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.
  • 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 about foreign laws we can help you contact a lawyer in the relevant country.
  • Unless you instruct us to do so and we agree to do so in writing, we will not remind you about relevant dates (e.g. PPSR financing statement renewal dates, lease renewal dates or trade mark renewal dates) or update advice after it is given (including to reflect any changes in law).
  • When your instructions on a matter are completed, our representation will end.

Restrictions on Use of Advice

Our advice is given solely for your benefit and in your interests.

If any other parties wish to rely on the advice we give you, they can only do so if both you and we agree in writing. Similarly, our name and opinions may not be used in connection with any prospectus, financial statement or other public document without our written consent.  Unless required by law, you may not provide our advice to any third party or file our advice with any governmental agency without our agreement.

Our advice is strictly limited to the matters stated in it and does not apply by implication to any other matters.

Conflicts of Interest

We have policies in place to identify and respond to conflicts of interest. We will comply with the NZLS Rules in respect of any conflict of interest arising.  If you believe a conflict of interest or potential conflict of interest has arisen or may arise, please advise us immediately.

Files

We will open a file at the start of each engagement.  The information we retain in that file will be stored and kept for six years.  After that period the file may be destroyed and any other information we hold about the matter may be deleted.  If you send to us any papers which ultimately form part of that file which are to be returned to you, please be sure to advise us at the time these are supplied.

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.

Fees and Payment

  • Unless other arrangements are agreed in writing with you, our fees are calculated having regard to a number of factors. These include the time we spend on a matter, charged at our hourly rates, and other pricing and value considerations permitted by the NZLS Rules.  Those factors may include the specialised knowledge, skills or responsibility required, the amount of money or asset value involved, the importance of the matter, urgency given and the results achieved.
  • 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. 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.
  • 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 we 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.

Trust Account

We maintain separate trust accounts for all funds which we receive from clients (except for funds which are for payment of our invoices).

If it is necessary for us to hold significant amounts on your behalf, we may lodge those funds on interest earning deposit with a registered bank.  We may charge an administration fee of 5% of the gross interest earned.

If we deposit funds on your behalf, you must give us either your IRD number or a copy of your interest withholding tax exemption certificate.  We may also request certain information to confirm your identity and the source of funds as set out in the section below.

Before we disburse funds from our trust account to you or a third party at your direction, you must provide us with a copy of your pre-printed bank deposit slip or a copy of your recent bank issued account statement showing the name of the account and the account number.  This is to comply with NZLS recommendations and for your protection, to ensure the request for payment has come from you and to confirm the details of the account to which funds will be paid.

Our trust account details will not change during the course of a transaction or before you pay your invoice and we will not notify you of a change in our trust account details by email. If you receive a request via email to change the bank account into which you are to pay funds, you must not respond to the email and you must contact us immediately.

We may deduct from funds held on your behalf in our trust account any fees, costs or disbursements for which we have provided an invoice or where we have your written authority.

Anti-Money Laundering, FATCA, CRS and Other Laws

We must comply with our obligations under all laws binding on us, including:

  • anti-money laundering and countering financing of terrorism laws; and
  • laws relating to tax reporting and withholdings.

In order to do so, we may be required to conduct customer due diligence on you, persons acting on your behalf, and other relevant persons such as your beneficial owners or persons who have effective control.  In the case of a trust, this may include both trustees, appointors and the beneficiaries of the trust.  In the case of a company, this may include directors, direct and ultimate shareholders and key executives.  We may not be able to act or continue acting for you, or to complete trust account transactions for you, until this is completed.

We may also be required to verify the source of wealth and source of funds where enhanced due diligence is required.  You authorise us to collect this information from your accountants, investment advisers and banks.

We may be required to provide information about you, persons acting on your behalf, and other relevant persons as described above to government agencies.   We may not be permitted to tell you or such persons if we do provide such information.  We may also be required to provide such 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.

Please ensure that any of the persons described above in respect of whom we collect information are aware of and consent to this.  Please also ensure that all information provided to us is accurate.  We are not responsible to you or anyone else for anything done or not done by us (including any provision of information by us to any third party or any withholdings made) in order to comply with our legal obligations.

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.

Confidentiality

We will not disclose to third parties any confidential information relating to the Services unless either authorised by you or compelled by law or by the NZLS Rules, or as is necessary to provide the Services. We will not provide information or comment to the media in the absence of your express written instructions.

Privacy

Over the course of our engagement with you, we may collect and hold personal information concerning you. Under the Privacy Act 1993, you have the right of access to, and correction of, your personal information held by us.

Email and Facsimile

While we use standard 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 after it leaves our information systems, nor any liability for loss arising from non-receipt of any email, facsimile 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).

Changes to the Terms

The Terms will be deemed to be modified to the extent necessary to comply with the NZLS Rules in force from time to time.

Governing Law

The Terms and our relationship will be governed by the applicable laws of New Zealand and the exclusive jurisdiction of the New Zealand Courts.

Client Care and Service Information

Set out below is the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (“Law Society“).

Fees

The basis on which fees will be charged, and when payment of fees is to be made, is set out in our Terms of Engagement.

Professional Indemnity Insurance

We maintain professional indemnity insurance that meets or exceeds the Law Society’s requirements.

Lawyers Fidelity Fund

The Lawyers Fidelity Fund established by the 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 & 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.

Complaints

We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.

If you have a complaint about our services or charges, you may refer your complaint to the partner with overall responsibility for your work.

You may also contact the complaints service run by the Law Society.

Client Care and Service

Whatever legal services we provide you, we must:

  • Act competently, in a timely way, and in accordance with instructions received and arrangements made.
  • Protect and promote your interests and act for you free from compromising influences or loyalties.
  • Discuss with you your objectives and how they should best be achieved.
  • Provide you with information about the work to be done, who will do it and the way the services will be provided.
  • Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
  • Give you clear information and advice.
  • Protect your privacy and ensure appropriate confidentiality.
  • Treat you fairly, respectfully and without discrimination.
  • Keep you informed about the work being done and advise you when it is completed.
  • Let you know how to make a complaint and deal with any complaint promptly and fairly.

The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers.  Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.

If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.