Terms and Conditions of Engagement

Introduction

These terms of engagement govern the relationship between Macalister Mazengarb (“us”) and you when you instruct us to act for you.

Duty of Care

In acting for you, our duties are owed to you only. Unless we agree otherwise in writing, those duties will not extend to third parties. The advice that we give you is, therefore, for your benefit only.

Services

The services we are to provide for you are outlined in our engagement letter.

Confidentiality and Privacy

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:

(a)    to the extent necessary or desirable to enable us to carry out your instructions; or
(b)    to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.

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.

We will of course, not disclose to you confidential information which we have in relation to any other client.

Electronic Communication

We often communicate by electronic means, which is not always secure. We will not accept any responsibility and will not become liable for any damage or loss that may arise or be caused from an e-mail or any other form of electronic communication that is intercepted or if an error occurs that is beyond our control.

You cannot assume that any particular e-mail, and its attachment or attachments, have reached us. If you are relying on any particular e-mail having been received by us, then you must check that it has been received.

If you would prefer us to use other means of communication and correspondence, then please let us know and we will endeavour to do so.

Conflicts of Interest

We have procedures in place to identify and respond to conflicts of interest. We will let you know, as soon as possible, of any conflict of interest that may arise in the course of our relationship. If a conflict of interest arises we will advise you of this and follow the requirements and procedures set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.

Fees

The fees we will charge or the manner in which they will be arrived at, are set out in our engagement letter.

If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our 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 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. The differences in those rates reflect the experience and specialisation of our professional staff. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.

Factors for Assessing Fees

The factors which we will take into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include, in accordance with the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, the following:

(a)    the time and labour expended;
(b)    the skill, specialised knowledge, and responsibility required to perform the services properly;
(c)    the importance of the matter to you and the results achieved;
(d)    the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
(e)    the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved;
(f)     the complexity of the matter and the difficulty or novelty of the questions involved;
(g)    the experience, reputation, and ability of the lawyer;
(h)    the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients;
(i)     whether the fee is fixed or conditional (whether in litigation or otherwise);
(j)     any quote or estimate of fees given by the lawyer;
(k)    any fee agreement (including a conditional fee agreement) entered into between the lawyer and client;
(l)     the reasonable costs of running a practice; and
(m)   the fee customarily charged in the market and locality for similar legal services.

Disbursements

Any disbursements such as court fees, legal forms, Land Information New Zealand registration and search fees, Companies Office/PPSR search and registration fees, Council LIM report fee, and same day cleared payment bank fees will be charged in addition to our fee. We may require an advance payment for the disbursements which we will be incurring on your behalf. Should you require us to instruct a barrister or expert then you will also become liable to pay their fee upon demand (by either the barrister or us).

Additional Service Fee

This additional service fee may be charged to cover, where relevant, photocopying, toll/mobile calls, facsimile charges, consumables, stationery and postage. This fee varies depending on the nature and volume of work.

GST (if any)

Is payable by you on our fees and charges.

Invoices

We will send interim invoices to you, usually monthly and on completion of the matter, or on termination of our engagement. We may also send you an invoice when we incur a significant expense.

Payment

Our invoices are to be paid by you within 14 days of the date of the invoice. If you have any problems in paying your account with us, please let either our Practice Manager or the person acting for you on the matter know and we may be able to come to an alternative arrangement. Likewise, should you have any concerns with our invoice, then please let us know.

If we instruct a debt collection agency, or another lawyer, to recover any outstanding fees and/or disbursements you owe us, then you will also be liable for those fees and/or disbursements. In addition we reserve the right to charge you interest at the rate of two per cent (2%) per month if our fees and/or disbursements remain unpaid at the end of the month following the date of our invoice to you, calculated from that date down to the date of actual payment.

Security

We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise us:

(a)    to debit against amounts pre-paid by you; and
(b)    to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.

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, nevertheless you remain responsible for payment to us if the third party fails to pay us.

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 normally lodge those funds on interest bearing deposit with a bank. In that case we will charge an administration fee of 5% of the gross interest derived.

Files and Documents

We store all files and documents for a minimum period of seven years after completion of the matter. You authorise us (without further reference to you) to destroy all files and documents for this matter (other than any documents that we hold in safe custody for you) seven years after our engagement ends, or earlier if we have converted those files and documents to an electronic format. We may, however, agree to retain certain documents in secure storage for a longer period of time. As a result of the Land Information New Zealand Landonline audits, we will retain certain information for a period of 10 years.

Should you terminate your relationship with us, then provided that you have no outstanding moneys owed to us, you may uplift your file and all documents from us. We reserve the right to make a complete copy of these.

Terms and Termination

These terms of engagement form the basis upon which we will act for you.

At any time during the course of your relationship with us, either you or we may terminate the relationship. We may terminate our retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers. In the event of termination, you will continue to be liable for any fees outstanding and costs we incur prior and subsequent to the termination.

General

These terms of engagement 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 of engagement from time to time, in which case we will send you amended terms of engagement.

Our relationship with you is governed by New Zealand law and New Zealand courts have non­-exclusive jurisdiction.