Terms of Engagement

Unless We agree otherwise in writing, these terms apply whenever We provide services to You.

1.  Your Instructions
1.1  The services which We are to provide to You are as instructed by You from time to time.
1.2  By instructing Us to provide You with legal services You are deemed to have accepted these terms of engagement.
1.3  Unless You instruct us otherwise in writing, You agree that We can accept instructions from any of the following:

  • Where We provide services to a company, from any officer or employee of that company or any other person You have authorised to work with us;
  • Where We provide services to a trust, from any trustee or officer of that trust;
  • Where We provide services to a partnership, from any partner or officer of that partnership;
  • Where We provide services to a couple, from either person.

2.  Our obligations to You
2.1  In carrying out the services provided to You We will:

  1. discuss Your objectives and how they are best achieved;
  2. provide You with information about the work to be done, who will do it and keep you informed about progress with the job;
  3. act competently, promptly, and in accordance with Your instructions;
  4. protect Your privacy, ensure appropriate confidentiality and avoid conflicts of interest;
  5. charge fair and reasonable fees;
2.2  The obligations We owe to You are set out in full in the Rules of Conduct and Client Care for Lawyers (“the Rules”) at www.lawsociety.org.nz/for-lawyers/regulatory-requirements/rules-and-regulations. Those obligations are subject to other overriding duties, including duties to the Courts and to the Justice System.

3.  Our Charges

3.1  Our fees are charged in accordance with guidelines laid down by the Rules. We take into account a combination of factors as set in the Rules including time spent, urgency and complexity of the work.
3.2  Sometimes We may provide an estimate of likely fees for a job. This will be based on information provided and available at the time. Please note that this is neither a quote nor a cap on Our fees but is Our best range estimate of Our likely costs in the matter. If the work does not proceed as We had envisaged due to unexpected matters, or if the work proves more involved than originally anticipated, We will charge for that additional work. If it appears that the estimate will be exceeded, We will advise You of this as soon as reasonably practicable.
3.3  Where our fees are calculated on an hourly basis, the hourly rates are those that are advised to You from time to time. The differences (if any) in those rates reflect the experience and specialisation of our professional staff.
3.4  If a fixed fee is agreed by us in writing then We will charge this for the agreed scope of our services. Work which falls outside that scope will be charged in accordance with clause 3.1. We will advise You as soon as reasonably practicable if it becomes necessary for Us to provide services outside the agreed scope and if requested, give You an estimate of the likely amount of the further costs.

  1. In addition to Our fees we will charge You disbursements incurred on Your behalf. Disbursements are expenses such as travel and accommodation costs, registration and filing fees, court charges, photocopying, telecommunication charges, courier fees, search fees, on-line enquiries and matters of a similar nature. Disbursements also include payments made on Your behalf to third parties such as fees of outside counsel, agents, experts and other professionals and are charged at the amount charged to Us.
  2. Our invoices may include an office service charge to cover the cost of routine copying, printing, binding, telephone, fax and courier expenses. The amount of that charge is currently $50 but is subject to change from time to time due to increases in costs. We will advise you of any change. If the actual costs of these services are higher than that charge then We will charge You the higher cost.
  3. We may charge You an estimate of some disbursements, such as photocopying, and telecommunication charges.
  4. Some disbursements also incur additional administration charges to cover the costs We incur in the process of providing those third party services.
3.6  We are not required to pay the amounts referred to in clause 3.5 for You unless We receive payment from You first. We have the right to ask for these specific amounts or for an approximate amount to cover these expenses to be paid in advance into our trust account. We may require You to enter a payment arrangement directly with the third party at our discretion.
3.7  Unless We state otherwise, all fees are plus GST.
3.8  Although You may expect to be reimbursed by a third party for our fees and expenses, You will normally be expected to pay our fees and expenses and obtain repayment from the relevant third party.
3.9  If We agree Our invoice may, at Your request, be directed to a third party, however You remain responsible for payment to Us, if the third party fails to pay Us.
3.10  In some cases You may be eligible to apply for legal aid. If You want to apply for legal aid, We may refer You to another lawyer as We do not usually carry out legal aid work.

4.  Invoices and Payment
4.1  We will send invoices to You on completion of Your job, or termination of Our engagement. We may also send interim invoices to You usually on a monthly basis or when We incur a significant expense.
4.2  Invoices are payable within 14 days from the date of the invoice, unless alternative arrangements have been made with Us. We may require interest to be paid on any amount which is more than 14 days overdue. Interest will be calculated at the rate of 10% above our main trading bank’s 90-day bank bill buy rate as at the close of business on the date payment became due.
4.3  We may stop doing work (and instruct others to stop doing work) for You if Your credit limit is exceeded or if payment is not received by Us when due. We will have no liability for any loss suffered by You when work is stopped for this reason.
4.4  If there is more than one person instructing Us, each person is jointly and severally liable for payment in due time of all Our accounts and other charges.
4.5  If We have to take steps to recover any unpaid account, the costs of recovery (including debt collection charges) are all payable by You.
4.6  You authorise us to debit against any funds held on Your behalf in our trust account in respect to any matter; any expenses or disbursements. We may also deduct from any such funds any fees for which We have provided an invoice.
4.7  Sometimes We may also ask You to pay a deposit based on Our estimate of the fees and disbursements. We may choose not to begin work until We receive Your deposit, even if deadlines are due.

5.  Trust Account
We maintain a trust account for all funds which We receive from clients (except monies received for payment of Our invoices). If We are holding significant funds on Your behalf We will where appropriate normally lodge those funds into an on call interest bearing deposit account with Our bank. In that case, We may charge an administration fee, currently the greater of $30.00 or 7.5% of the interest earned. These fees may change from time to time. You will be notified of any change.

6.  Professional Indemnity Insurance
We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide You with particulars of the minimum standards upon request.

7.  Lawyers Fidelity Fund
The Law Society maintains the Lawyers Fidelity Fund for the purposes of providing clients of lawyers with protection against loss arising from theft by lawyers. The maximum amount payable as compensation by the Fidelity Fund to an individual is limited to $100,000. 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.

8.  Duty of Care
Our duty of care is to You and not to any other person or entity. Before any other person or entity may rely on Our advice or services, We must expressly agree to this in writing.

9.  Retention of Files
9.1  Our policy is to retain documents in electronic form unless instructed otherwise. If you give us a paper document, or we receive one on your behalf, you authorise us to destroy it after making an electronic copy of that document. This does not apply to documents that we have agreed in writing to hold in safe custody for you.
9.2  Where we have agreed in writing to hold any documents in safe custody for you (which may be stored offsite), you agree to collect such documents from us at our request. Failing collection, we may destroy any deeds or other documents held for you. Our policy is to retain files for a period of 10 years from the date the file is closed, although we may choose to destroy minor files after seven years and hold other files for a period longer than 10 years. However, you agree that we may destroy any file at any time unless, before a file is destroyed, you notify us in writing that you do not wish it to be destroyed.

10.  Complaints Procedure
We have procedures for handling any complaints, 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 person who has overall responsibility for Your work. If You do not wish to refer Your complaint to that person, or You are not satisfied with that person’s response You may refer Your complaint to the Managing Partner. If You are not satisfied with the result of Our complaint procedures, then You have the right to lodge a written complaint with the New Zealand Law Society’s complaints service – details of which are available on www.lawsociety.org.nz/for-the-community/lawyers-complaints-service. Queries can be referred to complaints@lawsociety.org.nz or telephone 0800 261 801.

11.  Our Monitoring Obligations
11.1  We are obliged to comply with all laws binding on us in all applicable jurisdictions, including:

  • the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act); and
  • the United States Foreign Account Tax Compliance Act, the intergovernmental agreement between the United States and New Zealand relating to it, and relevant provisions of the Tax Administration Act 1994 (together, FATCA).
11.2  We will perform customer due diligence and account monitoring, keep records, and report any unusual or suspicious transactions where required by the AML/CFT Act, FATCA, or any other law.
11.3  We may also be required to assist any bank or other entity with whom we transact as your agent, or with whom we deposit money on trust for you, to comply with that entity's legal obligations in any jurisdiction.
11.4  We will periodically advise you what information and documents are required for these purposes. These may relate to you, any other relevant person (eg any beneficial owner), the source of funds, the transaction, the ownership structure, tax identification details, and any other relevant matter. Please provide the information and documents promptly. We may retain the information and documents, provide them to a bank or other entity (where applicable) to deal with in accordance with their terms, and disclose them to any law enforcement or regulatory agency or court as required by law.
11.5  If the required information or documents are not provided or it is suspected that the business relationship or transaction is unusual, may breach any applicable law, or may otherwise relate to conduct that is illegal or unlawful in any country, We or the bank or other entity (as the case may be) may without notice:
  • suspend, terminate, or refuse to enter into a business relationship;
  • delay, block, or refuse to process a transaction (including by refusing to handle and deposit money on trust for you); and
  • report a transaction.

12.  Conflicts of interest
Before we begin work on any matter, we first assess whether we are acting for another party or are likely to be instructed by another existing client, on the same matter. If a conflict of interest exists or seems likely to arise, we will inform you and discuss the best way of resolving the issue. It may only be possible to act for one party or for neither.

13.  Communication
13.1  Your instructions are very important to Us. If You want to contact us and we are not available, please email Us or leave Us a voice message and We will contact you as soon as We can.
13.2  For your privacy, would You please confirm Your preferred way of receiving communication from Us. Unless advised otherwise, We will send communications to You using the email address that You have provided to Us.
13.3  For Your protection and Ours, we have current antivirus software installed on our computers, which is updated regularly.
13.4  Would You please ensure that You do not send us any email unless you have current, updated antivirus software installed on your computer. If you cannot do this, please do not email us. Post a letter or send a fax to Us instead.
13.5  If We do receive any infected email from You, We have the right to recover from You the cost of removing the computer virus, malware and suchlike from our computers and for any consequential loss.

14.  Electronic Communications
We may communicate with you and others by electronic means, unless you instruct us not to. Electronic communications may be intercepted or corrupted. We do not accept responsibility for the corruption of an electronic communication and will not be liable for any connected damage or loss.

15.  Confidentiality and Privacy
15.1  We will treat all information We hold about You as private and confidential. We will not share any information We hold about You, unless:

  • The law requires Us to
  • We need to so that We can carry out Our work for You
  • You agree, or ask Us to.
  • The information is already known to the public or those We disclose it to.
15.2  We may also use contact details and other information (e.g. subjects You are interested in) to keep You informed about developments in relevant areas of law and other services or products We offer. If You do not want to be provided with this information please let Us know at any time.

16.  Termination
16.1  You may end Our engagement by giving Us reasonable written notice. You must pay Our fees for work done and for other charges incurred up to the time of termination.
16.2  We may end Our engagement, at any time upon reasonable notice to You.
16.3  Upon termination of the engagement, all outstanding fees and other charges (up to the time of termination) will be billed to You. When You pay the account You may uplift Your file. You acknowledge that We are entitled to retain a full copy of the file and are entitled to charge the costs of duplication of same. Until Your account is paid We have a right to keep any of Your property including all files and documents in Our possession (this is called a solicitor’s lien).
16.4  Where We have provided an undertaking to any person or entity that has not been completed You may not terminate Our engagement or revoke Your instructions without Our consent until the undertaking is completed or We are released from it.
16.5  We may suspend your work if you have not:

  • paid Our accounts on time;
  • given Us information that We have asked for or it is not accurate;
  • done something that You are required to do.

17.  Limitation of Liability
17.1  Where the Consumer Guarantees Act 1993 or other legislation implies conditions or warranties or gives other rights to You and it is not lawful or possible to exclude those rights, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to Our arrangements with You. Except as stated above, all implied conditions, warranties and rights are expressly excluded.
17.2  Subject to clause 14.1 Our liability in respect to the provision of services to You whether in negligence or otherwise shall be limited to the maximum amount payable under Our Professional Indemnity Insurance from time to time.
17.3  Except as specified in clauses 14.1 and 14.2 We shall not be liable to You or any person claiming under or through You in contract or in tort for any indirect or consequential loss, suffered by You or any other person, arising out of or relating to Our performance or non-performance (including, by way of example and not in limitation, liability due to negligence or default by Us) or any error (whether negligent or not) in information supplied to You.
17.4  We often have to obtain and rely on external information or public records (e.g. government agencies or registers) to carry out Your instructions. This information may not always be accurate or complete. We do not accept responsibility and will not be liable for any direct or indirect damage or loss caused by errors or omissions in external information.
17.5  In providing conveyancing (property) services to Our clients We do not carry out valuations of property or businesses, nor determine whether the property or business meets Your investment profile. We recommend You should consult a suitably qualified professional such as a Registered Valuer, Financial Adviser and/or Accountant in relation to these issues.
17.6  We do not provide investment advice in respect to financial products. Again, We recommend You always obtain appropriate advice from a suitably qualified Financial Adviser or Accountant in relation to specific financial products.

18.  Personal Guarantee
If You are instructing Us in the capacity of director or shareholder of a company, or as settlor or trustee of a trust or executor or administrator of an estate then You will be personally and primarily liable to Us for Our fees and other costs. While the company, trust or estate will also be liable for Our fees and other costs We may require you personally to pay if payment has not been made when due by the company, trust or estate.

19.  Security for Payment
In consideration of the professional services provided by Us these terms You hereby irrevocably grant to Us a power of attorney to execute on your behalf a registrable all obligations mortgage (Memorandum number 2007/4238) over any and all of Your estate and interest in any or all property registered under the Client’s name (whether beneficially held or not) to secure Our unpaid fees and disbursements. The principal sum under the mortgage will be the amount of fees due by reference to the relevant tax invoice(s) and all disbursements, agency charges and other incidental fees together with interest at the rate set out in clause 4.2. All costs of and incidental to the preparation of the mortgage, preparation of the caveat and all registration and other fees incurred by Us (including incidental recovery costs) will be deemed to be included in the principal sum secured by the mortgage. The date of advance will be the date the costs were due for payment or any subsequent date nominated by Us. Interest will be compounded at monthly intervals.

20.  General
20.1  These terms and any other agreement We have with You are:

  1. governed by New Zealand law and subject to the exclusive jurisdiction of the New Zealand courts;
  2. binding on You and
  3. Your executors, administrators and successors; and
  4. personal to You. You may not assign or transfer any rights or obligations under these terms or any other agreement that We have with You.
20.2  These terms apply to any current engagement and also to any future engagement, whether or not We send You another copy of them.
20.3  We are entitled to change these terms from time to time. We will advise You of any changes.
20.4  In these terms of engagement, “We”, “Us”, “Our” and “the Firm” means Heritage Law Limited, including Our employees, consultants and contractors engaged by Us, and “You” and “Your” means the client.