TERMS OF ENGAGEMENT

Thank you for approaching us in this matter.  We will be pleased to act for you.  We set out below the information which lawyers are required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society to provide to clients, and our standard Terms of Engagement.

These standard Terms of Engagement apply in respect of all work carried out by us for you, except to the extent otherwise agreed in writing.

Duty of Care:

Out duty of care is to our client named in our confirmation of instruction.  We do not owe any duty of care or liability to any other person.  If any person wishes to rely on our advice, they can do so only if we expressly agree. If, during the course of our engagement, we provide legal services to entities related to you or associated with you, then these services will be provided on the same terms as these standards terms.

The Law Society client care and service information is set out below. Whatever legal services your lawyer is providing, he or she must:

• Act competently, in a timely way, and in accordance with instructions.

• Protect and promote your interests and act for you free from compromising influences or loyalties.

• Discuss with you your objectives and how they should best be achieved.

• Provide you with information about the work to be done, who will do it and the way the services will be provided.

• Charge you a fee that is fair and reasonable and let you know how and when you will be billed.

• Give you clear information and advice.

• Protect your privacy and ensure appropriate confidentiality.

• Treat you fairly, respectfully and without discrimination.

• Keep you informed about the work being done and advise you when it is completed.

• Let you know how to make a complaint and deal with any complaint promptly and fairly.

The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers.  Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.  If you have any queries, please visit www.lawyers.org.nz.

Responsibility for Services:

Your work will be handled mainly by John Cox/Ian Gibson, has overall responsibility for the services we will provide to you.  However other legal and support staff may also be involved as required.

Limitations on our Obligations or Liability:

Any limitations on the extent of our obligations to you or any limitation of exclusion of liability are set out in our letter of engagement.

Confidentiality:

We will hold in strict 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;

•  Where you authorise us to do so; or

• 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 actually need that information to carry out your instructions.  We will not disclose to you confidential information which we have in relation to any other client.

Electronic Communications

Where we communicate with you by electronic means we will take every reasonable precaution to ensure that those communications are accurate, reliable, adequate complete confidential and secure.

However, we cannot always be certain that those communications are error free. Also, because they will in most cases be internet based, certain risks exist that are outside our control.  Consequently we cannot and do not represent or warrant that those communications will always be accurate, reliable, adequate complete confidential and secure.  We also exclude all warranties to the extent permitted by law.

Conflicts of Interest:

We have policies in place to identify and respond to conflicts of interest. If a conflict of interest or potential conflict of interest arises we will follow the requirements and procedures set out in the Law Society’s Rules of Conduct and Client Care for Lawyers, advise you of the conflict or potential conflict, and consult with you about the best way to resolve the matter.

We will not act without your consent for any other client where that client’s instructions:

• Are substantially relayed to any active matter on which we are working for you; or

• Involve confidential information which we hold on your behalf that would disadvantage you if disclosed to the other client.

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.  Unlike most lawyers we will not charge an administration fee for doing so.

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.

Lawyers Fidelity Fund:

The Law Society maintains the Lawyers Fidelity Fund for the purposes of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers.  The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000.  Except in certain circumstances specified in the Lawyers and 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.

Complaints:

We maintain a procedure for handling any complaints by clients, 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 in our firm 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 to your complaint, you may refer your complaint to the principal, John Cox.  He may be contacted by letter, by email at [email protected], or by telephone.

The Law Society also maintains a complaints service and you are able to make a complaint to that service. To do so you should contact the Law Society.  Set out Set out below is the information required by the Rules of Conduct and Client Care for the Law Society’s address and appropriate phone number.

Termination:

Where you give us any instruction and we rely on that instruction (for example, by giving an undertaking to a third party), you may not revoke that instruction.  Otherwise you may terminate our retainer at any time, on any matter or matters.  You do not need to give notice.

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.  We will give you reasonable notice.

Provided that you have paid all of our invoices on all matters, we will (on request) provide to you all the documents that we have obtained or created through working on the matter or matters in question.  Before we provide those documents to you, we may take a complete copy of them.

If our retainer is terminated you must pay us all fees due up to the date of termination, and all expenses incurred up to that date, including the costs of copying files.

If our engagement is terminated, these terms continue to apply in respect of you instructions.

Retention of files and documents:

Subject to any legal requirement, we will retain the files that we create for your work on any matter for a minimum of seven (7) years after we finish working for you on that matter. We may hold that file electronically rather than physically.

You authorise us (without further reference to you) to destroy all files and documents for this matter or any other matter (other than any documents that we hold in safe custody for you) seven (7) years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.

If you wish us to retain all or part of the paper files (where we have one) please advise us in writing before the matter is completed.

Joint Action:

If we are acting for you and for other clients in what is in effect a joint action or defence in which it is understood that you will share the costs and disbursements with our other clients, then our agreement to act for you in this manner is subject to your agreement to share costs on a proportionate basis; your meeting your financial obligations to us; your agreeing that in the event of any difference between you and any of those other clients in that grouping, that you will accept decisions made by the majority of that group in terms of instructions to us in respect of any and all matters; you will provide us with all of the documentation in your power or possession and will co-operate fully with us as we may require to assist your position or that of others within the group; either we or you (at any time and with no less than seven (7) days written notice) may terminate participation within that group arrangement and thereafter you will be solely responsible for your own costs and disbursements payable to us.  Where you are asking us to act on behalf of a company or an entity (including a trust) other than a private individual, then in consideration of our accepting these instructions, you personally guarantee the payment to us of all amounts that may be due to us by that company or entity.  You accept that you are jointly and severally liable for any amount outstanding.

Fees:

Our fees will be charged on the basis that they will be fair and reasonable having regard to the circumstances of the matter and the nature of our work for you.  While the time and resources involved will be important factors, we will also consider the results achieved and the urgency, level of skill, complexity, responsibility and specialist knowledge involved.

Our fees will be calculated taking into account Law Society approved criteria, including, but not limited to:

• Our time and attendance at our normal hourly rates charged for solicitors and support staff;

• The skill and knowledge and responsibility required;

• The value or amount of any property or money involved;

• The complexity, novelty, importance, and urgency of the matter;

• The important of the matter to you, and the results achieved.

If our 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.  You will be advised if it appears that the estimate is going to be exceeded.

Where our fees are calculated on an hourly basis, the hourly rates are $360 for the principal, $300 for a staff solicitor, $180 for a legal executive, and $135 for a legal secretary.  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.

Disbursements and Expenses:

In providing services we may incur disbursements or have to make payments to third parties on your behalf.  Disbursements are payable by you in addition to our fee for professional legal services.  If we are required to incur substantial disbursements on your behalf, for example court filing fees, title search fees, registration fees, document service fees, and similar payments, we are not required to pay these amounts unless we receive payment for them from you first.  We reserve the right to ask you either for specific amounts in advance to cover such disbursements, or for an approximate amount to cover these expenses, to ensure that we are not required to meet these disbursements ourselves.

Our invoices include an office service charge to cover the cost of routine copying, printing binding, telephone, fax and courier expenses. The office service charge is usually $45.00 for fees up to $1,000.00, and $60.00 for all other invoices.

Invoices:

Our usual practice is to issue interim invoices on approximately a monthly basis, and on completion of the matter, or termination of our engagement.  For continuing and ongoing matters we will bill you at appropriate intervals.  We may also send you an invoice when we incur a significant expense.  We may require you from time to time to pay in advance an estimated amount on account of our future fees and disbursements.

Payment:

Our invoices, with the exception of those pertaining to conveyancing, are payable within seven (7) days of the date of the invoice, unless alternative arrangements have been made with us.  If you do not pay us by the due date, or make payments when requested by us, then we may charge interest on any amount which is more than seven (7) days overdue.  Interest will be calculated at the rate of 15.0% per annum, calculated and compounding monthly.  We reserve the right to suspend our services to you until the invoices are paid, or security for payment provided to our satisfaction, or payment is received from you for future fees and disbursements in advance (if required).    Invoices rendered for the sale or purchase of real estate or businesses are payable on the date of settlement of the transaction, or by the 20th of the month following the date of the invoice, whichever is the earlier.  Invoices on civil matters will generally be rendered monthly.

You specifically authorise us to debit against amounts pre-paid by you; and 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.

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.

All invoiced amounts are payable in New   Zealand dollars, unless we agree otherwise.

Security:

We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses.  You hereby irrevocably agree to grant us security by way of a mortgage over any real properties owned by you (in any capacity, whether beneficially or as trustee, personal, as director or as nominee or agent).  The mortgage granted by you secures the payment of our fees, disbursements, interest and other charges.  You acknowledge that we may lodge a caveat in the name of our principal John Cox as an acknowledgement and security for this agreement to mortgage.  If we need to take recovery action against you, you will be liable to reimburse us for our actual costs of taking that action, i.e. solicitors or debt collectors fees, and court costs.

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 from time to time, in which case we will send you amended terms.  Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.

We look forward to working with you on this matter.

Acknowledgement of Terms of Engagement:

If the information in this letter and the accompanying material is acceptable, please sign the attached copy of this letter where indicated and return it to us.

You will be bound by these terms if after receipt of this letter, you orally advise us of your acceptance or if you instruct us to proceed to act for you.


Services to be provided and Instructions to Act:

TO: BLOMKAMP COX SOLICITORS:

The above terms are accepted and you are requested to act in this matter.  I/We acknowledge and agree that these terms of engagement will apply, now and in the future, to all legal services provided by Blomkamp Cox Solicitors to us.