The purpose of this page is to provide you with as much information as possible with respect to our commitment to you.
For each new project we undertake we will send a “letter of engagement”. The letter will outline the level of fees which you can expect to pay, our client care commitments and standard terms of contact”. This information is also detailed below for your reference.
Client Care and Standard Terms of Engagement:
1. General
1.1 These Standard Terms of Engagement (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.
2. Services
2.1 The services we are to provide for you (the Services) are outlined in our letter
of engagement along with any further instructions that you provide to us in
writing (or that we record in writing).
2.2 In order to provide you with efficient advice and services and to provide the
most cost-effective service, it may be that part or all of your instructions will
be delegated to other professionals in our firm.
3. Communications
3.1 We will obtain from you contact details, including email address, postal address
and telephone numbers. We may provide documents and other communications
to you by email (or other electronic means). You will advise us if any of your
contact details change.
3.2 We will report to you periodically on the progress of any engagement and will
inform you of any material and unexpected delays, significant changes or
complications in the work being undertaken. You may request a progress report
at any time.
3.3 You agree that we may provide you from time to time with other information
that may be relevant to you, such as newsletters and information bulletins.
At any time you may request that this not be sent to you.
4. Financial
4.1 Fees: The basis upon which we will charge our fees is set out in our engagement
letter.
a. If the engagement letter specifies a fixed fee, we will charge this for the
agreed scope of the Services. Work which falls outside that scope will be
charged on an hourly rate basis. We will advise you as soo as resonably
practicable if it becomes necessary for us to provide services outside of
the agreed scope and, if requested, give you an estimate of the likely amount
of the further costs.
b. If the engagement letter provides a fee estimate, as long as your transaction
proceeds in the usual manner you can have a legitimate expectation that the
final invoice will be in the amount of the estimate, or at least close to it. If it
transpires that the work is beyond the scope of the estimate, we will advise
you as soon as reasonably practicable. Work which falls outside of the scope
for which the estimate was provided will be charged on an hourly basis.
c. Where our fees are calculated on an hourly basis, the hourly rates of the
people we expect to undertake the work are set out below. Any differences
in those rates reflect the different levels of experience and specialisation of
our professional staff. Time spent is recorded in six-minute units.
d. Where fees are charged on an hourly basis, the following rates per hour plus
GST will apply:
Michael Toner, Partner/Solicitor $400.00
Emily Toner, Partner/Solicitor $380.00
Deb Boyd-Collins, Reg. Legal Executive $320.00
Amanda Gould, Reg. Legal Executive $320.00
Abby Attwood, Legal Executive $320.00
Bernadette Breese, Legal Secretary $280.00
e. Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair
and reasonable to take into account matters such as the complexity, urgency,
value and importance of the Services. Full details of the relevant fee factors
are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct
and Client Care) Rules 2008 (Rules).
4.2 Disbursements and 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 such as search fees,
court filing fees, registration fees and travel and courier charges) which are
reasonably necessary to provide the Services. You also authorise us to make
payments to third parties on your behalf which are reasonably required to
undertake the Services (which may include items such as experts’ costs or
counsel’s 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).
4.3 Office Service Charge Fee (Administrative expenses): In addition to disbursements,
we may charge a fee of up to $80.50 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 form fees, photocopying and printing, postage and phone calls.
4.4 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.
4.5 Invoices: We will send an invoice to you on a 3-monthly basis, or otherwise on
completion of you matter, whichever is sooner. Depending on the nature of the work,
we may send you interim invoice(s). Interim invoices will usually be sent monthly or
upon the completion of a substantial portion of work. We may send you invoices
more frequently when we incur a significant expense or undertake a significant
amount of work over a shorter period of time.
4.6 Payment: Invoices are payable within 14 days of the date of the invoice, unless
alternative arrangements have been made with us.
a. You authorise us to deduct our fees and other expenses from funds held in
our trust account on your behalf on provision of an invoice to you, unless
those funds are held for a particular purpose.
b. If you have difficulty in paying any of our accounts, please contact us promptly
so that we may discuss payment arrangements.
c. If your account is overdue we may:
i. require interest to be paid on any amount which is more than 14 days
overdue, calculated at the rate of 5% above the overdraft rate that our
firm's main trading bank charges us for the period that the invoice is
outstanding;
ii. stop work on any matters in respect of which we are providing services to
you;
iii. require an additional payment of fees in advance or other security before
recommencing work;
iv. recover from you in full any costs we incur (including on a solicitor/client
basis) in seeking to recover the amounts from you, including our own fees
and the fees of any collection agency.
d. Payment may be made by direct credit to the trust account of
Michael J Toner Solicitor, 06-0433-0243251-00.
4.7 Fees and disbursements in advance: We may ask you to pre-pay amounts to us, or
to provide security for our fees and expenses. We may do this, on reasonable
notice, at any time.
4.8 Estimates: You may request an estimate of our fee for undertaking the Services
at any time. If possible we will provide you with an estimate (which may be a
range between a minimum and a maximum amount or for a particular task or
step). An estimate is not a quote. Any significant assumptions included in the
estimate will be stated and you must tell us if those assumptions are wrong or
change. We will inform you if we are likely to exceed the estimate by any
substantial amount. Unless specified, an estimate excludes GST,
disbursements and expenses.
4.9 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, you remain responsible for payment to us
in accordance with these Terms if the third party fails to pay us.
4.10 Trust Accounting: We operate a trust account. All money received from you or
on your behalf will be held to your credit in our trust account.
a. Payments out of the trust account will be made either to you or to others
with your authority. Written authorisation from you (and if we are acting for
more than one of you, from all of you) will be required when payment is
to be made to a third party. Before making a payment to another account
we may require verification of the account details by provision of
(for example) a copy of a deposit slip, cheque or bank statement
showing the account number, a signed authority from you including the
bank account details, or a signed letter from the relevant financial
institution providing bank account details.
b. A full record of our trust account is kept at all times. A statement of trust
account transactions detailing funds received and payments made on
your behalf will be provided to you periodically and at any time upon your
request.
c. Unless it is not reasonable or practicable to do so, when we hold significant
funds for you for more than a short period of time we will place them on call
deposit with a bank registered under section 69 of the Reserve Bank of
New Zealand Act 1989, subject to your having completed to the bank’s
satisfaction any request for information relating to the deposit or
certification required by the bank. Interest earned from call deposits,
less a 5% commission fee and withholding tax will be credited to you.
5. Confidentiality and Personal Information
5.1 Confidence: 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. as expressly or impliedly agreed by you; or
c. as necessary to protect our interests in respect of any complaint or dispute;
or
d. to the extent required or permitted by law.
5.2 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.
5.3 Personal information and Privacy: In our dealings with you we will collect and hold
personal information about you. We will use that information to carry out the
Services and to make contact with you about issues we believe may be of
interest to you. Provision of personal information is voluntary but if you do
not provide full information this may impact on our ability to provide the
Services.
5.4 Subject to clause 5.1, you authorise us to disclose, in the normal course of
performing the Services, such personal information to third parties for the
purpose of providing the Services and any other purposes set out in these
Terms.
5.5 We may disclose your name and address to third parties such as credit agencies
to perform a credit reference or to undertake credit management or collection
processes if it is reasonable to do so.
5.6 The information we collect and hold about you will be kept at our offices
and/or at secure file storage sites (including electronic file storage sites)
elsewhere. If you are an individual, you have the right to access and correct
this information. If you require access, please contact Michael Toner.
5.7 Verification of identity: The Financial Transactions Reporting Act 1996 requires us
to collect from you and to retain information required to verify your identity.
We may therefore ask you to show us documents verifying your identity
(such as a passport or driver’s licence). We may retain copies of these
documents.
We may perform such other customer verification checks as to your identity
and checks as to the source of any funds associated with any transaction
to which the Services relate as we consider to be required by law.
5.8 Compliance: Please refer to section 7 ‘Compliance’ regarding information that
may be required to be provided to third parties.
6. Documents, Records and Information
6.1 We will keep a record of all important documents which we receive or create
on your behalf on the following basis:
a. We may keep a record electronically and destroy originals (except where the
existence of an original is legally important such as in the case of wills and
deeds).
b. At any time, we may dispose of documents which are duplicates, or which are
trivial (such as emails which do not contain substantive information), or
documents which belong to us.
c. We are not obliged to retain documents or copies where you have requested
that we provide them to you or to another person and we have done so,
although we are entitled to retain copies for our own records if we wish
to do so.
6.2 We will provide to you on request copies or originals (at our option) of all
documents to which you are entitled under the Privacy Act 1993 or any other
law. We may charge you our reasonable costs for doing this.
6.3 Where we hold documents that belong to a third party you will need to
provide us with that party’s written authority to uplift or obtain a copy
of that document.
6.4 Unless you instruct us in writing otherwise, you authorise us and consent to us
(without further reference to you) to destroy (or delete in the case of
electronic records) all files and documents in respect of the Services
7 years after our engagement ends (other than any documents that
we hold in safe custody for you or are otherwise obliged by law to retain
for longer). We may retain documents for longer at our option.
6.5 We may, at our option, return documents (either in hard or electronic form) to
you rather than retain them. If we choose to do this, we will do so at our
expense.
6.6 We own copyright in all documents or work we create in the course of
performing the Services but grant you a non-exclusive licence to use and
copy the documents as you see fit for your own personal or commercial use.
However, you may not permit any third party to copy, adapt or use the
documents without our written permission.
7. Compliance
7.1 We are obliged to comply with all laws applicable to us in all jurisdictions,
including (but not limited to):
a. Anti-money laundering (AML) and countering financing of terrorism (CFT)
laws; and
b. Laws relating to tax and client reporting and withholdings.
7.2 We may be required to undertake customer due diligence on you, persons
acting on your behalf and other relevant persons such as beneficial owners
and controlling persons. We may not be able to begin acting, or to continue
acting, for you until that is completed.
7.3 To ensure our compliance and yours, we may be required to provide
information about you, persons acting on your behalf or other relevant
persons to third parties (such as government agencies). There may be
circumstances where we are not able to tel you or such persons if we do
provide information.
7.4 Please ensure that you and/or any of the persons described previously are
aware of and consent to this. It is important to ensure that all information
provided to us is accurate. If the information required is not provided, or
considered by us to be potentially inaccurate, misleading, or in contravention
of any law, we may terminate or refuse to enter into an engagement.
8 Conflicts of Interest
8.1 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 Client Care) Rules 2008 (Rules).
This may result in a situation arising where we have a conflict of interest.
8.2 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.
9 Duty of Care
9.1 Our duty of care is to you and not to any other person. We owe no liability to
any other person, including for example any directors, shareholders,
associated companies, employees or family members unless we expressly
agree in writing. We do not accept any responsibility or liability whatsoever
to any third parties who may be affected by our performance of the Services
or who may rely on any advice we give, except as expressly agreed by us
in writing.
9.2 Our advice is not to be referred to in connection with any prospectus, financial
statement, or public document without our written consent.
9.3 Our advice is opinion only, based on the facts known to us and on our
professional judgement, and is subject to any changes in the law after the
date on which the advice is given. We are not liable for errors in, or omissions
from, any information provided by third parties.
9.4 Our advice relates only to each particular matter in respect of which you
engage us. Once that matter is at an end, we will not owe you any duty or
liability in respect of any related or other matters unless you specifically
engage us in respect of those related or other matters.
9.5 Unless otherwise agreed, we may communicate with you and with others by
electronic means. We cannot guarantee that these communications will not be
lost or affected for some reason beyond our reasonable control, and we will
not be liable for any damage or loss caused thereby.
10 Limitations on our Obligations or Liability
10.1 To the extent allowed by law, our aggregate liability to you (whether in
contract, tort, equity or otherwise) in connection with our Services is
limited to the amount available to be payable under the Professional
Indemnity Insurance held by the firm.
11 Termination
11.1 You may terminate our retainer at any time.
11.2 We may terminate our retainer in any of the circumstances set out in the
Rules including the existence of a conflict of interest, non-payment of fees,
and failure to provide instructions.
11.3 If our retainer is terminated you must pay us all fees, disbursements and
expenses incurred up to the date of termination.
12 Feedback and Complaints
12.1 Client satisfaction is one of our primary objectives and feedback from clients
is helpful to us. If you would like to comment on any aspect of the service
provided by us, including how we can improve our service, please contact
the person responsible for your business or Michael Toner.
12.2 If you have any concerns or complaints about our services, please raise them
as soon as possible with the person to whom they relate. They will respond
to your concerns as soon as possible. If you are not satisfied with the way
that that person has dealt with your complaint, please raise the matter with
the person responsible for your business or with Michael Toner. We will
inquire into your complaint and endeavour in good faith to resolve the
matter with you in a way that is fair to all concerned.
12.3 If you are not satisfied with the way we have dealt with your complaint the
New Zealand Law Society has a complaints service to which you may refer
the issue. You can call the 0800 number for guidance, lodge a concern or make
a formal complaint.
Matters may be directed to:
Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Phone: 0800 261 801
To lodge a concern:
www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form
To make a formal complaint:
www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint
Email: complaints@lawsociety.org.nz