Terms of Engagement
Updated July 2018
1. The Letter of Engagement we have provided you, its Schedule and any Confirmation Sheet, are to be read together with, and form part of, these Terms of Engagement (together, the Agreement).
Scope of Services and Fee Estimate
2. The Scope of Services (Services) and Fee Estimate are defined and referred to in the Schedule to the Letter of Engagement.
3. We will provide the Services to you in consideration for you observing your obligations under this Agreement.
Negotiation of Terms and Independent Advice
4. You may obtain independent legal advice about the terms of this Agreement.
5. You may negotiate the terms of this Agreement. However, we are not obliged to accept any alternative or revised terms that you propose.
6. The name and status of the person or persons who will have the general carriage of, or overall responsibility for, the Services are set out in our Letter of Engagement or Confirmation Sheet.
Client Care and Service Information
7. We are qualified to advise on New Zealand and Australian law. If we assist you on matters governed by foreign law, we do so on the basis that we do not accept any responsibility in relation to your position under that foreign law, whether or not we have obtained foreign law advice on your behalf.
8. The obligations we owe to clients for New Zealand legal matters are described in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system. If you have any questions about this, please visit www.lawsociety.org.nz or call 0800 261 801 or +64 4 473 7909.
9. The obligations we owe to clients for Australian legal matters are described in the Legal Profession Act 2008 (WA). Those obligations are subject to other overriding duties, including duties to the courts and to the justice system. If you have any questions about this, please visit www.lpbwa.org.au or call +61 8 6211 3600.
10. Whatever legal services we are providing, we must:
(a) act competently, in a timely way, and in accordance with instructions received and arrangements made;
(b) protect and promote your interests and act for you free from compromising influences or loyalties;
(c) discuss with you your objectives and how they should best be achieved;
(d) provide you with information about the work to be done, who will do it and the way the services will be provided;
(e) charge you a fee that is fair and reasonable and let you know how and when you will be billed;
(f) give you clear information and advice;
(g) protect your privacy and ensure appropriate confidentiality;
(h) treat you fairly, respectfully, and without discrimination;
(i) keep you informed about the work being done and advise you when it is completed; and
(j) let you know how to make a complaint and deal with any complaint promptly and fairly.
Calculation of Fees
11. Where possible, we will provide you with a fixed Fee Estimate. If we have provided you with a fixed Fee Estimate, the fixed Fee Estimate relates only to the Services specified in the related Confirmation Sheet or as otherwise communicated to you.
12. Where the Fee Estimate is expressed as being variable, our fees are calculated on the time we estimate it will take us to provide the Services, as well as other factors outlined in the Schedule to the Letter of Engagement. We may charge a premium over and above our standard hourly rates where we consider the circumstances to justify that.
13. When recording our time we charge in 6 minute units. All work undertaken by us is charged in whole units. For example, if the time recorded is less than 6 minutes, we will charge for the full 6 minutes.
14. We charge for our time spent travelling, where that travel is reasonably required to provide services to you. For example, if we meet with you at your offices, we may charge you for travel time to and from your offices.
15. Should any variation to the Services be required:
(a) any additional work required outside the initial scope of services may be charged at our standard hourly rates; and
(b) if it becomes necessary to substantially vary the initial scope of services, we will provide you with a revised or further Fee Estimate before proceeding with the additional work.
16. Some instructions may not be completed, for reasons beyond our control. If this occurs, you will be liable to pay us for the work undertaken and costs incurred.
17. We must raise 15% for goods and services tax (GST) on taxable supplies made to you within New Zealand and 10% for GST on taxable supplies made to you within Australia. We will provide in our invoices sufficient details for you to comply with GST requirements.
18. Unless stated otherwise, any Fee Estimate will be exclusive of GST.
19. You must pay all disbursements associated with the Services. This includes (but is not limited to):
(a) filing fees;
(b) courier or postage fees;
(c) printing and photocopying, where substantial printing or photocopying is required;
(d) travel costs, including air-fares;
(e) accommodation costs; or
(f) engaging an expert witness, barrister, another law firm, or an overseas agent (in which case, we will inform you of the related fee estimate before proceeding).
20. You acknowledge and accept that overseas filing fees and overseas agents’ fees expressed to you, or incorporated in our Fee Estimate, in NZD or AUD (as the case may be), are subject to exchange rate fluctuations. Where the exchange rate has fluctuated between the time when we gave you the Fee Estimate or the relevant invoice and the time we are required to pay the relevant invoice or the time you have paid us (whichever comes later), we reserve the right to charge you for any additional fees that we may be required to pay as a result of this. You also acknowledge and accept that you will be charged a bank fee required to make payment of any overseas invoice issued in relation to your matter.
21. We will issue you with invoices upon completion of a particular stage of a matter or otherwise on a monthly basis, unless we agree otherwise.
22. Our invoices will itemise:
(a) details of the work performed; and
(b) if the invoice does not relate to a fixed Fee Estimate:
(i) the time taken to perform that work; and
(ii) the relevant hourly rate and cost for that work.
23. If the invoice relates to a fixed Fee Estimate and we charge a lump sum for the work performed, we will not routinely issue an invoice with the details referred to in clause 22(b). But we will provide an itemised invoice if requested by you.
24. You are liable to pay us all amounts invoiced by us and those amounts are due and payable within fourteen (14) days of the date of the invoice.
25. If you do not pay an invoice within fourteen (14) days of the date of the invoice, we may:
(a) charge interest (at a rate of 10%, calculated monthly from the overdue date) on the unpaid amount from the due date until the date of payment in full;
(b) until you have paid the invoice in full (including any interest we may charge), refuse to undertake any work for you, including the Services we had agreed to provide;
(c) until you have paid the invoice in full (including any interest we may charge), exercise a general lien over all documents, files and personal property held by us and any preserved rights or property rights recovered or obtained by any judgment awarded in your favour; and
(d) take steps to recover the money you owe to us, in which case we are entitled to do so on an indemnity basis.
Querying Our Invoices
26. Please contact the person responsible for your file if you have any queries about a particular invoice. Your invoice query will be addressed as a matter of priority.
27. If we are unable to resolve your query, you may make a complaint to:
(a) for New Zealand matters where we have provided you New Zealand legal services, the Lawyers Complaints Service (see clause 84); or
(b) for Australian matters where we have provided you Australian legal services, the Legal Profession Complaints Committee (see clause 85).
28. For Australian matters where we have provided you Australian legal services, you may also:
(a) apply to a taxing officer of the Supreme Court of Western Australia for an assessment of the whole or any part of the costs charged in that invoice; or
(b) apply to the Supreme Court of Western Australia to have the Agreement set aside.
Application for Assessment of Invoice – Australian Matters
29. If we have provided you Australian legal services, the following clauses 30 to 33 apply.
30. An application to a taxing officer of the Supreme Court of Western Australia must be made within twelve (12) months of receiving the invoice in issue.
31. If the application is made outside the twelve (12) month period, a Supreme Court judicial officer may determine, having regard to the delay and the reasons for delay, that it is just and fair for the application for assessment of the invoice to be dealt with after the twelve (12) month period.
32. In some circumstances, we may issue a revised invoice for review by the taxing officer and (where the original bill did not charge you for all the time we spent on the matter) the revised invoice may be greater than the original invoice.
33. For more information about your rights, please read the fact sheet titled "your right to challenge legal costs". You can ask us for a copy, or obtain it from the Legal Practice Board of Western Australia (or download it from the website of the Legal Practice Board or the Law Society of Western Australia).
Application to Have Agreement Set Aside – Australian Matters
34. If we have provided you Australian legal services, the following clauses 35 and 36 apply.
35. You have the right to apply to the Supreme Court of Western Australia to have the Agreement set aside if the Supreme Court is satisfied that the terms are not fair or reasonable.
36. In determining whether or not to set aside the Agreement, the Supreme Court will have regard to a number of issues that may include:
(a) whether you were induced to enter into the Agreement by fraud or misrepresentation;
(b) whether any practitioner acting for THELOFT.LEGAL has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the Services to which the Agreement relates;
(c) the circumstances and conduct of the parties before and after the Agreement was made; and
(d) the disclosures made by THELOFT.LEGAL, and how the Agreement and billing under the Agreement were dealt with.
37. You have a right, on reasonable request, to a written report on the progress of the matter to which the Services relate or on the legal fees incurred by you on a particular matter. We may charge you for a progress report but we will not charge you for a report regarding the legal fees incurred by you.
38. If we negotiate the settlement of your matter, before the settlement is executed, we will , upon request, disclose to you an estimate of:
(a) the fees payable by you if the matter is settled, including the legal fees of any other party; and
(b) any contribution towards those fees likely to be received from another party.
Recovery of Fees – Litigious Matters
39. Recovery of legal fees incurred in litigation is a complex matter and may be affected by many considerations, including the successful party’s conduct (for example, if that party refused to make certain admissions which caused the unsuccessful party to incur unnecessary costs).
40. The award of costs is at the discretion of the Court and you will only be entitled to an award of costs where a Court grants them to you. Generally, the Court will order the unsuccessful party to pay a portion of the successful party's costs. However, unless the successful party obtains an exceptional costs order from the Court, the relevant costs scale outlines the maximum amount that may be recovered from the unsuccessful party.
41. If you are the successful party and obtain an order requiring the unsuccessful party (or parties) to pay a portion of your legal fees, you may recover, on average, between 30% and 70% of your legal fees. This means that even if you are successful you will incur substantial costs in litigating your matter.
42. If you are the unsuccessful party, you may be required to pay a similar portion of the legal costs of the successful party. As a benchmark, it is reasonable to assume that the other party’s costs will be approximately the same as your own. You will have to pay this amount in addition to the amounts you pay under this Agreement.
43. The fees chargeable by a barrister, agent, expert, witness or other law practice you engage, or that we engage on your behalf, may not be recoverable from the other party to the proceedings, either partly or fully. You will be liable for the total amount incurred, irrespective of any amount recovered from the other party.
Variation of Agreement
44. We will notify you of any material alteration to this Agreement in writing.
45. We may vary our fees periodically, and we will notify you of this if it will directly affect you. If you do not agree to our fee variation you must notify the person responsible for your file as soon as possible.
46. We own all copyright in all material supplied by us under this Agreement.
47. We grant you an irrevocable, perpetual, non-exclusive licence to use any material supplied by us under this Agreement for the purpose contemplated by the Services. Any material supplied by us under this Agreement may not otherwise be reproduced, adapted, communicated or used, without our prior written consent.
48. Where you supply material to us under this Agreement, you grant us an irrevocable, perpetual, non-exclusive licence to use the material so that we can provide the Services.
Documents and Electronic Files
49. We will store in electronic format copies of the documents and electronic communications exchanged between us.
50. Where you provide us with original documents, we will store copies of these documents in electronic format. We will retain the originals if:
(a) you have requested us to do so; or
(b) we require the originals to fulfil the Services, and
we will otherwise return the originals to you once we have stored copies in electronic format or as may be agreed on a case by case basis.
51. We may delete our electronic files once seven (7) years has passed from the date of any of the following events:
(a) conclusion of your matter;
(b) termination of this Agreement; or
(c) where the Services relate to the filing, prosecution or renewal of a registration (including trade mark, domain, patent or design), the date of expiration of the registration.
52. We may however choose (at our sole discretion) not to delete our electronic files relating to your matter once the seven (7) year period has passed.
Personal and Confidential Information
53. We will collect and retain information about you as part of providing Services to you. We acknowledge the importance of maintaining the confidentiality of your personal information.
54. We will use the personal information we collect from you to provide Services to you, to inform you of changes in our business, to advise you of matters that we reasonably believe may be of interest to you and to advise you of matters that may impact on the way in which we may in the future provide services to you.
55. We will take all reasonable steps to ensure that your personal information is not disclosed to, or accessed by, third parties or unauthorised persons.
56. We will not disclose confidential information obtained as a result of acting for you unless permitted by this Agreement (which disclosure is taken to be authorised by you), required or authorised by you, or required or permitted by law or the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 or Legal Profession Act 2008 (WA).
57. Without limiting the above, you acknowledge that we may be required or permitted by law or the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 or Legal Profession Act 2008 (WA) to disclose information obtained as a result of acting for you (a permitted disclosure). For example, the Law Society Rules require us to disclose client information if we reasonably believe the disclosure is necessary to prevent a serious risk to the health or safety of any person. If we make a permitted disclosure, we will only do so to an appropriate person and only to the extent reasonably necessary for the required or permitted purpose. You consent to us making, and waive whatever right that you may have to be advised that we have made, a permitted disclosure.
58. Sometimes we are required to disclose your personal and confidential information to various people and organisations (including our agents, barristers and related companies) in order to provide you with the Services or to obtain or provide a fee estimate to provide you with the Services. You authorise us to disclose your personal and confidential information where we consider necessary to do so for this purpose.
59. We may be required to disclose your personal and confidential information as part of a public audit. You authorise us to disclose your personal and confidential information for this purpose.
60. Our name and opinions may not be used in connection with any offering document, financial statement or other public document or statement without our prior 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 prior written agreement.
61. We may mention your name or matter on our website or in our marketing and promotional material. We will seek your permission before doing so.
62. You have the right at any time to have access to any personal information we hold about you and to ask us to correct any incorrect personal information. Should you wish to review the personal information held by us about you, please contact the person who is responsible for your matter.
Audits and Government Enquiries
63. If we are required to:
(a) provide to an auditor information about you and the matters we are undertaking, or have undertaken for you; or
(b) attend or give any evidence in court, at a royal commission, or to a government agency, parliamentary or other inquiry in respect of matters handled on your behalf, then we may charge for our time and all disbursements reasonably incurred, in accordance with this Agreement.
64. The contents of our emails (and attachments) may contain copyright material. You should only reproduce or distribute our emails and attachments if you are expressly authorised to do so.
65. If material contained in emails and attachments is of a kind that might attract legal professional privilege, it is possible that privilege may be lost by disseminating the information. Accordingly, you should seek our advice before disseminating any sensitive information, especially letters of advice from us or a barrister or agent we have engaged.
66. Our emails are not encrypted and may be open to access by “hackers”. If this concerns you, please do not email particularly sensitive information to us and instruct us to avoid the use of emails with you.
67. We do not represent or warrant that the files attached to our emails are free from computer viruses or other defects. Any attached files are provided, and may only be used, on the basis that you assume all responsibility for any loss or damage resulting directly or indirectly from such use.
Conflicts of Interest
68. If a conflict of interest arises in relation to a matter on which we have been instructed, we will discuss that conflict with you and agree a possible solution.
69. Where we receive instructions that give rise to a conflict of interest, we may need to refer you and the other client to other lawyers for independent legal advice. Where we are already acting for you on a matter and a conflict arises, we may have to discontinue our involvement with you in that matter.
70. We may accept instructions to act for other clients or potential clients who operate in the same market as you or who may otherwise compete with you, but, without your consent, we will not act on a matter that:
(a) is the same matter on which we are currently acting for you; or
(b) would require us to disclose confidential information that we have obtained from you.
71. We will not disclose your confidential information to another client nor will we disclose another client’s confidential information to you. You waive whatever right you might have to receive the confidential information of another client.
72. We will not knowingly accept instructions from you to commence proceedings against another client of ours or from another client to commence proceedings against you during the term of our retainer with you.
73. If you provide us with instructions for and on behalf of a related entity, a third party or jointly with another party, or instructions are received by us directly from a related entity, both you or your company (as the case may be) and the related entity or other party (as the case may be) and any other person who signs this Agreement, will be jointly and severally liable to pay for our Services, including our disbursements, in accordance with this Agreement.
74. If you make a claim against us or any of our professional staff for breach of duty to exercise reasonable care and skill, liability for damages in contract and/or in tort shall be apportioned in accordance with our and your respective fault (contributory negligence) as well as that of any third parties.
75. Our aggregate liability to you in connection with any matter (or series of related matters) is limited to and will not exceed:
(a) the amount available to be paid out under our relevant insurance policies, up to a maximum of NZD$1,000,000; or
(b) where no amount is available to be paid out under our relevant insurance policies, an amount equal to our fees we charged you for the matter and which have been paid by you.
76. If in connection with providing services to you we permit reliance on our advice (including a legal opinion or due diligence report) by any person other than you (a Third Party Beneficiary), the Third Party Beneficiary will be taken as being your associate. Without limitation, this means that our liability to any Third Party Beneficiary will be taken into account when assessing our aggregate liability to you (including where we agree a limitation of liability with the Third Party Beneficiary that exceeds our aggregate liability to you).
Insurance and Fidelity Fund
77. THELOFT.LEGAL LTD and its director have professional indemnity insurance. The maximum amount of cover for any one claim under this policy is NZD$1,000,000.
78. The Law Society of New Zealand administers a Lawyers Fidelity Fund which provides clients receiving New Zealand legal services with some protection against loss caused by theft by a lawyer of money or other assets entrusted to the lawyer.
Termination or Suspension of Agreement by Us
79. We may terminate or suspend (at our election) this Agreement and cease providing our Services to you if:
(a) you have not performed any one of the obligations required of you under the Agreement, including paying our invoices as they are due;
(b) you do not agree to our fee variation or any additional or revised Scope of Services or Fee Estimate;
(c) continuing to act for you would, in our opinion, be in breach of our legal, professional or ethical obligations; or
(d) in our opinion, mutual confidence and trust no longer exists between you and us.
80. In the event that we terminate or suspend this Agreement, we may issue an invoice for work that we have conducted for you up until the date of termination or suspension, and any such invoice will be payable in accordance with clauses 24 and 25 of this Agreement.
Termination of Agreement by You
81. You may terminate this Agreement at any time, by providing us with written notice.
82. In the event that you terminate this Agreement:
(a) where the Services require you to be represented by a legal practitioner:
(i) you must appoint alternative legal representation; and
(ii) due to our legal professional obligations, including those to the
court, we may not cease to act for you until such time that you have appointed alternative legal representation; and
(b) we may issue an invoice for work that we have conducted for you up until the date of termination (being the date you notified us in writing of the termination or, if necessary, until the date you inform us that you have appointed alternative legal representation), and any such invoice will be payable in accordance with clauses 24 and 25 of this Agreement.
Making a Complaint
83. If you have a complaint about our Services or charges, you may refer your complaint to the director of THELOFT.LEGAL who has overall responsibility for your work.
84. For New Zealand legal matters, the Law Society maintains a Lawyers Complaints Service and you are able to make a complaint by contacting the Law Society. The contact details are:
Postal Address: PO Box 5041, Lambton Quay, Wellington 6145 (DX SP20202)
Telephone: 0800 264 801
Fax: +64 4 473 7909 Website: www.lawsociety.org.nz
85. For Australian legal matters, the Legal Practice Board of Western Australia maintains a Legal Profession Complaints Committee and you are able to make a complaint by contacting that service. The contact details are:
Postal Address: 2nd Floor, Colonial Building, 55 St Georges Tce, Perth WA 6000
Telephone: +61 8 9461 2299
Fax: +61 8 9461 2265 Website: www.lpbwa.org.au
86. Each provision of this Agreement is separate and severable from the other provisions in this Agreement. Where any provision of this Agreement is invalid or not enforceable in accordance with its terms, other provisions of the Agreement which are self-sustaining and capable of separate enforcement are, and continue to be, valid and enforceable.
87. The waiver by either party of a breach of any provision of this Agreement by the other must not operate or be construed as a waiver of any subsequent breach by the other.
88. Unless otherwise agreed between the parties:
(a) this Agreement is to be governed by and construed in accordance with the laws of New Zealand; and
(b) the parties submit to the exclusive jurisdiction and venue of the courts located within New Zealand with respect to any litigation arising out of the breach or enforcement of this Agreement.
89. This Agreement constitutes the entire agreement of the parties pertaining to the subject matter in this Agreement and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties.
90. By clicking the button below or by telling us to proceed and/or continuing to instruct us to act on your behalf, you acknowledge that you have read, understood and agree to be bound by this Agreement (including the Letter of Engagement and its Schedule and any Confirmation Sheet we provide).