These Standard Terms of Engagement (Terms) apply in respect of all work carried out by us for you, except to the extent that we agree to change these Terms in writing. Please discuss these Terms with the partner responsible for your work should you have any questions.
General
These 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; in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have non- exclusive jurisdiction.
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 written consent.
A failure, delay or indulgence by us in exercising any power or right will not operate as a waiver of that power or right.
Services
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).
We will advise you on matters of New Zealand law. If we assist you with any matters governed by foreign law, we do so on the basis we do not accept any responsibility in relation to your position under that law, whether or not we have obtained foreign law advice on your behalf.
We are not qualified to provide you, and will not provide investment advice, or advice on insurance products to you. We will, if you so request, assist you in obtaining such advice.
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 professionals in our firm.
Unless we agree to do so in writing, we will not:
remind you about dates (e.g. PPSR, lease or consent expiry dates or annual return, or tax return filing or any other filings); or
update advice after it is given.
You agree that when we act for you, we can accept instructions from any of the following unless you expressly advise us otherwise in writing:
if we act for a company, we can accept instructions from any director or officer of that company or any employee or other person whom you have authorised to work with us;
if we act for a trust, we can accept instructions from any trustee or officer (if applicable) of that trust or any officer or employee of any family office that administers that trust;
if we act for a partnership we can accept any instructions from any partner or officer (if applicable) of that partnership;
if we act for a couple in a transaction, we can accept instructions from either party;
if you are a body corporate or incorporated society, we can accept instructions from any person holding themselves out as being authorised by the body corporate or society to instruct us.
Communications
We will obtain from you contact details, including email address, postal address and telephone numbers. You will advise us if any of your contact details change.
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.
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 that this not be sent to you.
We may communicate (and provide documents) to you and others by electronic means and we do not accept responsibility for and will not be liable for any damages or loss caused in connection with, the unauthorised interception or corruption of electronic communications.
Financial
Fees: The basis upon which we will charge our fees is set out in our engagement letter.
If the engagement letter specifies 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. 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.
Where our fees are calculated on an hourly basis, the hourly rates are set out in our engagement letter.
We review our hourly charge-out rates on an annual basis, and we may amend the hourly rates that we included (if any) in our original engagement letter without further communication with you.
Some instructions may not be completed for reasons beyond our control. If that occurs, you will be liable to pay us for the work undertaken and costs incurred up to the time of termination.
Hourly fees may be adjusted (where appropriate) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value and importance of the Services as permitted under Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules), such as:
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 achieved;
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 or 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 our engagement by other clients;
whether the fee is fixed or conditional (whether in litigation or otherwise);
any quote or estimate of fees given by us;
any fee agreement (including a conditional fee agreement) entered into between you and us;
the reasonable costs of running our practice; and
the fee customarily charged in the market and locality for similar legal services.
Disbursements and Third-Party Expenses: In providing the Services we may incur disbursements and payments to third parties on your behalf. You authorise us to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel charges) which are reasonably necessary to provide the Services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services (which may include items such as experts’ 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).
Office Service Charge Fee (Administrative expenses): In addition to disbursements, we may charge a fee of 2.5 % of our legal fees (or a fixed fee) to cover office expenses which are not included in our fee, and which are not recorded as disbursements. These include items such as photocopying and printing, postage phone calls, digital and physical file storage, and the use of electronic forms and precedents. All international courier fees are charged at a set rate per courier and not as a disbursement charge. We keep the prices standard to provide certainty and to cover our incurred administration costs.
GST (if any): Our services will usually attract Goods and Services Tax (GST) at the rate prescribed by the Goods Services Tax Act 1985. If this is the case, GST is payable by you on our fees and charges. GST will not apply where you are zero rated or exempt. Unless we state otherwise, our fees, estimates and hourly rates do not include GST or office expenses and disbursements which are payable by you.
Invoices: We will send interim invoices to you, usually monthly, and on completion of the matter, or termination of our engagement. We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time.
Payment: Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us.
You authorise us to deduct our fees and other expenses from any accounts we manage as trustee and/or director.
If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
If your account is overdue we may:some text
charge you interest at the rate of 10% (calculated on a daily basis and charged monthly) on any amount remaining unpaid after the due date for payment. If an invoice remains unpaid, we reserve the right to start proceedings to recover the overdue amount and charge you the cost of that recovery plus interest at the rate noted above, cease to act for you and retain your files until the overdue amount is paid;
stop work on any matters in respect of which we are providing services to you;
Payment may be made by bank transfer to the bank account number in our invoices.
Estimates: You may request an estimate of our fee for undertaking the Services at any time. If possible, we will provide you with an estimate (which may be a range) An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate excludes GST, disbursements and expenses.
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.
If the third party has not paid us within the time frames set out in these Terms for payment, we reserve the right to issue you an invoice for the outstanding amount. You must then pay the invoice in accordance with these Terms and seek reimbursement from the third party.
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.
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. Please refer to our privacy statement on our website.
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.
If we provide compliance, trustee, director or any other fiduciary services to you then you agree that we may provide any information we hold relating to your United States Foreign Account Tax Compliance Act (FATCA) or Common Reporting Standard (CRS) status, or other FATCA or CRS or foreign trust rules or tax matters, to the New Zealand Inland Revenue Department (IRD) and to our banks if they request information to be able to meet their FATCA or CRS obligations or other reporting obligations. If you do not provide any such information we request, you agree we may report your non-response, identity, and reportable balance to our banks and the IRD (which will in turn pass this information to the relevant foreign tax authority). Please ask us if you would like more information about FATCA or CRS or foreign trust rules.
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, Claudia Shan.
In providing our services to you, we may rely on information provided to us by third parties, such as corporate service providers, suppliers, government agencies, public registries, witnesses or experts. It is possible that some information provided by such sources may be inaccurate or incomplete. We are not responsible for any such errors or omissions.
Compliance: Please refer to section 7 ‘Compliance’ of these Terms regarding information that may be required to be provided to third parties.
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 may keep a record electronically 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 or another lawyer 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 2020 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 Services 7 years after our engagement ends (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 depending on the services we have provided to you.
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.
Compliance
We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
Anti-money laundering (AML) and countering financing of terrorism (CFT) laws;
Financial Transactions Reporting Act 1996; and
Laws relating to tax, regulations and client reporting (such as economic substance and beneficial ownership regulations) and withholdings.
Verification of identity: You authorise us to collect about you and to retain information required to verify your identity (including client due diligence) and further authorise us to exchange, and use such information and to make any other enquiries to:
confirm information provided to us about you is true;
undertake initial and on-going customer due diligence and monitoring in accordance with the AML and CFT laws;
comply with other legal obligations we may have.
You authorise any person to disclose information to us in response to such enquiries.
You accept that we may use customer due diligence services (including electronic based services from a third party) to verify your identity and conduct other customer due diligence or monitoring required under the AML/CFT laws and that when we use such services:some text
the other third party (service provider) will exchange information about you for that purpose and the service provider may hold information on its system and use it to provide their customer due diligence service to us;
we may use the service provider's services in the future for any authorised purpose (including in relation to ongoing customer due diligence). This may include using the service provider's monitoring services to receive updates if information held about you changes.
We may therefore ask you for documents verifying your identity (such as a passport or driver’s licence) and source of funds and/or source of wealth. 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 and make as we consider to be required by law. This includes complying with going customer due diligence and monitoring.
We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. Please ensure that you and/or any of the persons described are aware of and consent to this. We may not be able to begin acting, or to continue acting, for you until that is completed.
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 considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
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 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. Before undertaking work, we will take steps to ascertain if there is a conflict 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. If you believe that a conflict of interest has arisen or may arise, you must inform us immediately.
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.
Limitations on our Obligations or Liability (Optional)
To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.
To the extent permitted by law, you may not make or pursue any claim against us unless you give us written notice containing reasonable details of any actual or probable claim, and such notice is received by us within 3 years from the date of work undertaken to which the claim relates.
We limit our liability to you. For any matter (or series of related matters) the maximum aggregate amount that we will have to pay you will not exceed (1) NZ $1.8 million if an amount is available to be paid out under our relevant insurance policies in respect of our liability to you.
We will not have to pay you more than the maximum aggregate amount described in 10.3 above for anything caused by or resulting from anything we do or do not do, or delay in doing, whether or not it is contemplated or authorised by any agreement with you.
The limit In clause 10.3 applies to the extent permitted by law, whatever you are claiming for, and however liability arises or might arise if not for this clause (whether in contract, tort (including negligence), equity, or otherwise).
If you are more than one person (such as a couple or partnership), this maximum is the maximum combined amount that we will have to pay you together.
If you engage us to do work for the purposes of a business, you agree the Consumer Guarantees Act does not apply. Otherwise, nothing in this clause 10 limits any rights you may have under the Consumer Guarantees Act.
We shall not be liable for any loss or liability caused or contributed to by inaccurate or incomplete information supplied by you, your agents or third parties (including public records and expert witnesses) or because you did not receive or read a communication we sent you.
Termination
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 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.
If you have any concerns or complaints about our services, please raise them as soon as possible with the partner who is responsible for your business. He/she will respond to your concerns as soon as possible. If you do not wish to refer your complaint to that partner, please refer your complaint to the other partner. This partner 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. Either partner may be contacted as follows:
by email at cshan@avancierlegal.com or zmatti@avancierlegal.com;
by telephone at Claudia Shan +64(0)223798086 or Ziyad Matti +64(0)21494631;
by letter at 7B Grand View Road, Remuera, 1050, Auckland, New Zealand.
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 261801 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to: Lawyers Complaints Service PO Box 5041 Wellington 6140 New Zealand
