Standard terms of engagement
These are our standard terms and information on fees, expenses, and disbursements. Please read them. If you have any questions, please ask us.
Who will work with you?
A partner will be responsible for the delivery of our services to you. In order to ensure that we provide our advice in the most efficient and timely manner, other personnel may also be involved.
Instructions
We rely on you providing full instructions and advising all relevant facts all times during the matter.
Our role
We will set out our understanding of our role in an engagement letter or, if there is no formal engagement letter for the matter, in correspondence between us (the “engagement letter”).
We provide legal advice on New Zealand law. We do not advise on foreign law, or commercial, financial or other non-legal matters. We are not responsible for advising you as to taxation issues.
Reliance
Our duty of care is to our client named in the engagement letter. We do not owe any duty of care to any other person. You must not disclose or distribute our advice to any person (other than your other advisers or as may be required by law), and no such person may rely on our advice, without our prior written consent.
Where you are a company or other corporate or unincorporated entity, we act only for you. We do not act for your shareholders, directors, or members unless we otherwise agree.
Conflicts of Interest
We have procedures to deal with issues that arise if the interests of two or more clients conflict. We will let you know if a legal conflict arises and we will follow the requirements and procedures set out in the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (“NZLS Rules”). Where there is no legal conflict, we may accept instructions from other clients or potential clients working in the same or competing markets and whose commercial interests conflict with yours.
Client Checks
We are required to comply with all laws binding on us including the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT), the Foreign Account Tax Compliance Act (US) (FATCA) and the OECD’s Common Reporting Standards (CRS).
We will perform client due diligence and account monitoring, keep records, and report any unusual or suspicious transactions where required by AML/CFT, FATCA, CRS or any other law. We may also be required to assist any bank to comply with its legal obligations.
For the purposes of AML/CFT, we are required to obtain and verify certain information from you. This may include people associated with you (such as employees, directors and shareholders, trustees and beneficiaries). If we are not able to obtain the required information from you, it is likely we will not be able to act for you (or, if relevant, will cease acting for you).
We also have ongoing client due diligence obligations. To meet these obligations we may need to request further information from you in the future. If we are not able to obtain the required information, it is likely we will not be able to take further instructions from you (or, if relevant, will cease acting for you).
Fees, office expenses and disbursements
Professional fees
We use hourly rates only as a general basis for deciding the appropriate fees for our work. We may also take into account other factors such as the value we bring, complexity, novelty, difficulty and urgency of the work and the benefit to you of previous work or precedents. Hourly rates vary according to the type of work and experience of the personnel involved. If we provide an estimate of fees, actual fees may differ from the estimate.
If we agree a fixed fee and the scope of work increases beyond the basis on which you originally instructed us, it will be carried out at the normal hourly rates of the personnel involved unless another arrangement is agreed.
Administration fee and office expenses
On each invoice we will charge you an administration fee to cover cost associated with services supplied by us, including printing, photocopying, calls and file storage.
Disbursements
Disbursements arise due to services supplied by others.
We will charge you the amount charged to us by others for services, such as couriers, counsel’s fees, travel expenses, witness and expert’s fees, search, filing and registration fees, and telephone conferencing services.
Rate changes
Hourly rates and fees are reviewed and may change from time to time. Any revised rates and fees will generally apply from the start of the next calendar year following the review. We will give you prior notice if we intend to apply any increased rates or fees at any other time. Upon request we will also provide confirmation of our current applicable rates and fees. If you are unhappy with any revised rates or fees, you have the option of terminating our engagement (see Termination section below), however we would appreciate the opportunity to discuss the matter with you first.
GST
GST (where applicable) will be charged on our hourly rates and fees at the applicable rate.
Litigation
If the matter is, or becomes, litigious you should be aware:
- if you succeed in obtaining an order for costs payable by other parties in the litigation, it is likely to be for an amount substantially less than the amounts payable to us under these standard terms or any separate agreement with a barrister;
- the Court may make an order that you pay another party’s legal fees and costs (for instance, if you lose the case). These fees and costs would be in addition to the amounts payable to us; and
- the Court may make a costs order in favour of, or against, any party to the action without stating the amount payable. If this happens, that person is entitled to apply to a Court for assessment of the whole or part of the those costs.
Invoicing arrangements
Frequency of invoices
We generally issue monthly invoices. Accounts are payable upon receipt.
Funds in advance
We may ask you for funds in advance to be held in trust. You authorise us to deduct from these funds any amounts for which we have provided an invoice.
Invoicing to third parties
If we agree to address an invoice to a third party, you remain liable for the amount invoiced if the third party does not make payment.
Recovery of unpaid accounts
We may charge you interest on any unpaid account at the rate of 15% p.a. from 14 days after invoice date until payment. Interest will be payable on demand.
You will be responsible, on an indemnity basis, for all costs incurred by us in recovering any unpaid accounts.
Trust account
Where monies are held in our trust account and invested on deposit for you, we may charge an administration fee of 5% of the gross interest earned.
Any amounts for which we have provided an invoice may be deducted from any funds held in our trust account on your behalf (unless, when you paid the funds into our trust account, you told us they were for a specific purpose).
Credit Cards
We offer the option for invoices to be paid by credit card. When you choose to pay by credit card, a transaction fee of 2.25% of the total amount is added at the time of processing the payment to cover our direct and indirect costs in providing a credit card facility.
Personal information
You authorise us to collect, store, use and disclose any information (including your personal information) for the purposes of carrying out your instructions and any reasonable related purpose.
We will sometimes need to collect, store, use and disclose personal information about other identifiable individuals, such as your employees, directors or other people associated with you or with your transactions (including any principals or beneficiaries for whom or whose benefit you are acting). Please make sure that these other people are aware that our acting for you may involve collecting, storing, using and disclosing personal information about them.
We may need to disclose personal information to our contractors or agents, and other organisations (including other parties in the matter, a court, and law enforcement and government agencies who process transactions or perform regulator functions) but only to carry out your instructions, to fulfil our professional duties, to exercise our rights, or to comply with a legal requirement.
We may also use or disclose your personal information for the purposes associated with our business, including providing legal services, to obtain credit or other references, for the purposes of credit management and the collection of unpaid accounts, and to provide you with information we believe may be of interest to you.
Under the Privacy Act 2020 you have the right to request access to, and correction of, your personal information held by us. Any such requests may be directed to our Privacy Officer by e-mail (privacy@ah.co.nz) or by phone (+64 9 920 6400).
Confidential Information
We will not disclose to any other person any confidential information which we obtain as your lawyers except to the extent allowed or required by law or the NZLS Rules.
Intellectual Property
You may use and copy all documentation created by us for you in connection with the work we undertake for you. However, all ownership rights in intellectual property created by us remain our property. We will be free to use the intellectual property and original ideas to give advice to other clients, provided that we do not breach our duty of confidentiality to you.
Electronic communications
By providing your email address and/or mobile phone number, you consent to us communicating with you and others by electronic means such as email or text message. These communications can be subject to interference or interception or contain viruses or other defects (“corruption”). We do not accept responsibility for, and will not be liable for any damage or loss caused in connection with, or as consequence of, the corruption of an electronic communication.
We may also send you newsletters or other information we think you may be interested in and which may market and promote our products and services, or the products and services of others. These electronic communications from us will have instructions for how you can remove yourself from our mailing list.
Files
We are generally entitled to keep your file and documents while money is owing to us.
You may leave documents in our possession after conclusion of your matter. We will keep your file and documents for seven years after the matter is completed. We may hold the file and documents electronically rather than physically. If you do not retrieve your documents within that period, we have your authority to destroy them.
We may charge you for retrieving stored papers or deeds in response to any request from you to uplift your file or documents.
External information and public records
We often obtain and rely on external information (e.g. from your accountant) or public records (e.g.from a government agency or registry) to carry out your instructions. This information may not always be accurate or complete. We do not accept responsibility to investigate or verify external information or public records and will not be liable for any damage or loss caused by errors or omissions in them.
Limitation of liability
To the extent permitted by law our aggregate liability to you (or any other persons) whether in contract, equity, tort (including negligence), statute or otherwise arising out of your engagement of us on a matter (or any series or related matters) is limited to the greater of:
- the amount paid out under any relevant insurance held by us, up to a maximum of NZ$ 20 million; or
- NZ$ 2 million or (if greater) the amount of five times our applicable fee (excluding our administration fee, disbursements, and GST).
We may engage a third party to assist in relation your work. Where this occurs, to the extent permitted by law, we will not be liable to you (or any other persons) for any loss, damage, cost or expense suffered or incurred if and to the extent that it is caused by any act or omission of the third party which we cannot claim for under our agreement with them.
You may not bring any action against us, regardless of form, more than three years after the cause of action has arisen.
Termination
Where you give us any instruction and we rely on that instruction (e.g. by giving an undertaking to a third party), you may not revoke that instruction. Otherwise, you may terminate our engagement at any time by giving notice to us in writing.
We may terminate our engagement in the circumstances permitted by the NZLS Rules.
Despite any termination, you must pay us for what we provide, and all expenses we have incurred, up to the date of termination. Further, the provisions of these terms relating to reliance, confidential information, intellectual property, files, limitations of liability and governing law will continue to apply.
Force majeure
We shall not be liable to you for any delay or non-performance of our obligations arising from any cause beyond our reasonable control. In the event of our being so delayed or prevented from performing our obligations, we shall give you notice in writing as soon as reasonably possible. Further, we shall resume performance of our obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
General
These standard terms apply to any current instruction, and to any future instruction, whether or not we send you another copy. We can change these standard terms by publishing the changes, or a new version of these standard terms incorporating the changes, on our website: www.anthonyharper.co.nz. The changes will take effect from the effective date (which will be after the date of publication) stated in the standard terms.
Our current standard terms and client care and service information are available on our website www.anthonyharper.co.nz.
If you are unhappy with any changes to these standard terms, you have the option of terminating our engagement (see Termination section above), however we would appreciate the opportunity to discuss the matter with you first. Otherwise, your continued instructions will confirm your acceptance of our terms as set out in our engagement letter and in our standard terms (as changed from time to time).
Our engagement shall be governed by the laws of New Zealand, and both of us agree to submit to the exclusive jurisdiction of the New Zealand courts.
The effective date for these standard terms is 15 August 2022.