Standard Terms of Engagement (Effective 3 October 2018)
The Standard Terms of Engagement (“the Terms”), sent to the client together with the Information for Clients and any engagement letter and any fee estimate, form the initial Contract between Kaimai Law Limited trading as Kaimai Law Bethlehem (“Kaimai Law Bethlehem”) and the client.
Unless otherwise agreed in writing, any subsequent services performed by Kaimai Law Bethlehem will be provided by Kaimai Law Bethlehem on the basis of the Terms. In such cases, references to the Contract and the Services below will be to the Terms and any orally specified services.
- Services. Kaimai Law Bethlehem will provide the services specified in any initial engagement letter or, as subsequently agreed and set out, in any replacement or supplementary engagement letter or other communication (“the Services”). The Services may include advice and recommendations, but it is understood and agreed that all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by the client. Unless implementation is specified in the engagement letter, Kaimai Law Bethlehem shall not be liable in any way in this regard. Either Kaimai Law Bethlehem or the client may request changes to the Services. Each agrees to work together to enable each party to assess the impact of any requested changes on the cost, timing or any other aspect of the Services.
- Information. The client will provide in a candid, full and timely fashion all information and documents reasonably required to enable Kaimai Law Bethlehem to provide the Services. Unless otherwise required pursuant to the engagement, Kaimai Law Bethlehem will have no responsibility to independently verify the accuracy of such information and documents. Kaimai Law Bethlehem will not be liable for any loss or damage arising from any inaccuracy, incompleteness or other defect in any information or documents supplied by the client.
- Work papers. The work papers produced by Kaimai Law Bethlehem in the course of its work in providing the Services are the property of Kaimai Law Bethlehem. Kaimai Law Bethlehem shall be entitled to retain its work papers and copies of any documents created by it or provided to it in the course of performing its Services. Work papers will also include documents or deeds relevant to your affairs although not necessarily relevant to the Services. On providing the Services Kaimai Law Bethlehem will open a file. The file retained by Kaimai Law Bethlehem will be stored and kept for at least 7 years. After that period of time the file may at Kaimai Law Bethlehem’s sole discretion be destroyed. If the client sends to Kaimai Law Bethlehem any papers which ultimately form part of that file which are to be returned to the client, please be sure to advise Kaimai Law Bethlehem accordingly at the time these are supplied. In respect of Deeds or documents Kaimai Law Bethlehem reserves the right to retain those Deeds and documents until all monies due from the client to Kaimai Law Bethlehem are paid. Kaimai Law Bethlehem requires this right to retain any such Deeds and documents even if the monies are due for services unrelated to those documents. Kaimai Law Bethlehem’s position in this regard is contrary to the usual common law position which would otherwise exist.
- Health and Safety. The Health and Safety in Employment Act 1992 obliges Kaimai Law Bethlehem to take all practical steps to ensure the health and safety of its staff engaged on any assignment. Kaimai Law Bethlehem and the client will be mutually responsible to ensure the safety of Kaimai Law Bethlehem staff and to see no harm is caused to them in the client workplace. The client shall ensure that the Act is fully complied with when Kaimai Law Bethlehem personnel visit client sites. Contact with the client’s health and safety representative could involve a safety briefing at the beginning of the assignment, regarding work hazards which Kaimai Law Bethlehem staff may be exposed to on the client site, management of the hazards, provision of any appropriate equipment, awareness of accident reporting procedures and emergency procedures.
- Reporting. Kaimai Law Bethlehem will report to the client in accordance with the terms set out in the engagement letter.
- Fees and Payment.
(a) The fees which we will charge or the manner in which they will be arrived at, are set out in our engagement letter.
(b) All fees charged will be based on the New Zealand Law Society requirement that all professional fees shall be fair and reasonable having regard to the interests of both the client and Kaimai Law Bethlehem.
(c) The client acknowledges that in determining what constitutes fair and reasonable fees having regard to the interests of both the client and Kaimai Law Bethlehem, a number of factors will be taken into account including not only the amount of time devoted by partners and staff to the Services, but any urgency involved, the amount or value of the money or property involved, the degree of complexity, the results achieved, the skill required, and any other criteria that are relevant. A full list of the New Zealand Law Society’s costing factors is available on request.
(d) The client will pay all out of pocket expenses reasonably incurred by Kaimai Law Bethlehem in performing the Services.
(e) 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. The client authorises the deduction of all fees and expenses from the proceeds of any loan advance or sale proceeds or other monies which may be received or held to the client’s credit within Kaimai Law Bethlehem’s Trust Account.
(f) Regardless of the nature or type of Services being provided to the client, Kaimai Law Bethlehem reserves the right to render interim accounts in respect of which, the provisions of paragraph 6(g) shall apply.
(g) In all other cases, fees and expenses will be billed monthly unless otherwise agreed, and will be payable within 14 days from the date of the invoice.
(h) In default of payment when required, the client undertakes to pay late payment fees of 2% per month on any amount outstanding and to indemnify Kaimai Law Bethlehem and pay all costs and expenses if legal action is necessary to recover from you any overdue amount. Kaimai Law Bethlehem may at its discretion require funds to be paid on account before it incurs out of pocket expenses.
(i) Failure to pay fees on time may, at Kaimai Law Bethlehem’s discretion, lead to suspension of the Services (including Kaimai Law Bethlehem’s right to refuse to settle a property, loan, commercial or other transaction), or termination of the engagement. All reasonable fees up to suspension or termination shall be and remain payable, notwithstanding the suspension or termination.
(j) If you qualify for Legal Aid, you will be informed in writing by the Legal Services Agency of the fee that has been approved for our services and any contribution or other obligations you may have.
- Disbursements & 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 as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the Services. You also authorise the Services (which may include items such as experts’ costs or counsel 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 file opening fee of $50 and an Office Service Charge Fee 8% of our invoice (to a maximum of $250) to cover out of pocket costs which are not included in our fee and which are not recorded as disbursements. These include items such as photocopying and printing, tolls, stationary, faxes, postage and phone calls.
- GST. Our services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our fees and charges.
- Terms and Termination. The Contract will continue until all the Services have been provided unless sooner terminated by agreement as set out below. Either party may terminate the Contract by written notice or if the other party fails to remedy a material breach of the Contract. Termination will not affect the client’s obligations to pay Kaimai Law Bethlehem’s fees for all Services performed up to termination. 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. Kaimai Law Bethlehem will not disclose to third parties any confidential information relating to the Services unless either authorised by the client or compelled by law, or as is necessary to provide the Services.
- Indemnity. In the event Kaimai Law Bethlehem becomes involved in any claim (including actual or threatened litigation of whatever form) in relation to the Services, Kaimai Law Bethlehem will immediately notify the client. The client agrees, to the extent permitted by law, to indemnify Kaimai Law Bethlehem, its Partners and employees in all respects including its reasonable costs and expenses involved in defending any such actual or threatened litigation. Where legal counsel is retained for these purposes, those costs, will be met by the client. Kaimai Law Bethlehem will use its best endeavours to agree the quantum of any such costs recognising the need to respond to such litigation on a prompt and reasonable basis. The client agrees to meet the costs of Kaimai Law Bethlehem for reasonable time incurred by its Partners and staff and any other reasonable costs and expenses in relation to any inquiry or proceeding initiated by any person.
- Restrictions. Unless Kaimai Law Bethlehem has agreed in writing, no advice or information provided to the client is to be made available, directly or indirectly to any third party, or shall be used or relied upon by any third party. Kaimai Law Bethlehem will have no liability to any such third party. The client indemnifies Kaimai Law Bethlehem against any third party claim arising from its release of any such Kaimai Law Bethlehem advice or information.
- E-mail. While we use standard virus checking software, we accept no responsibility for viruses or anything similar in any emails or any attachments which come from Kaimai Law Bethlehem. 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.
- No Assignment or Benefit. The client may not assign the benefit of the Services to any third party without the written consent of Kaimai Law Bethlehem. For the avoidance of doubt the sole beneficiary of the Services under this Contract is the client. No other party is intended to take a benefit under the Contracts (Privity) Act 1982.
- Guarantee. Instructions from time to time may be taken from companies or other corporate bodies and/or family trusts and/or third-party individuals at the client’s request. In such instances these Terms will apply to the receipt of such instructions and the person or persons from whom Kaimai Law Bethlehem receives instructions unconditionally guarantees to Kaimai Law Bethlehem the performance of all obligations expressed or implied in these terms.
- Interest Bearing Deposit (IBD). From time to time Kaimai Law Bethlehem may receive on behalf of the client various funds and unless otherwise instructed, or the quantum of the funds retained is so minimal as to not warrant investment, all funds will be deposited to the client’s credit in an interest-bearing deposit account within Kaimai Law Bethlehem’s Trust Account. All interest accrued less usual Resident Withholding Tax and Kaimai Law Bethlehem handling commission, at a rate of 5% of gross interest accrued, will be for the credit of the client. Kaimai Law Bethlehem will at such time as all funds are released to the client provide a statement identifying the sum of all interest received and any deductions made. Placing your funds on Interest Bearing Deposit (IBD) in our Trust Account requires us, by law, to obtain information from you. Kaimai Law Bethlehem is registered as an Active Non-Financial Foreign Entity (NFFE) in line with the US Foreign Account Tax Compliance Act (FATCA). Kaimai Law Bethlehem will have no obligation to invest funds should this information not be supplied.
- Entire Agreement. The Contract described in these Terms, subject to any qualification, conditions, assumptions and reservations set out in any report, forms the entire agreement between Kaimai Law Bethlehem and the client. No previous discussions, proposals, correspondence, understandings or other communications, whether written or oral, shall have contractual effect subsequent to the engagement letter. Only written variations signed on behalf of Kaimai Law Bethlehem shall have effect to vary the Contract.
- Governing Law. Kaimai Law Bethlehem and the client agree that the Contract and their relationship will be governed by the applicable laws of New Zealand and submit to the exclusive jurisdiction of the New Zealand Courts.
- Kaimai Consulting Limited is an associated entity to Kaimai Law Bethlehem. This entity is used for the purposes of searches and registrations of property titles with Land Information New Zealand. It is also used for searches done through the Personal Property Securities Register. This service is billed separately from Kaimai Law Bethlehem and is included as a disbursement in your invoice.
- Appointments/Timeframes. Please try to keep to appointments and our required timeframes etc. Failing to do so may result in your work becoming urgent and requiring additional time spent, possibly meaning higher fees to you. Unless we have specifically agreed, we do not undertake to do the work for you by a particular date or time, but we will do our best to meet your requirements for this. We will strive to action your work promptly, but there may be times where we are delayed by people or circumstances beyond our control, including the Courts, Government Departments or other professionals.
- 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 Lawyers and Conveyancers Act (Lawyers: Conduct and 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 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.