 terms & conditions of engagement and investment disclosure
As at April 2010.
TERMS & CONDITIONS OF ENGAGEMENT
These Terms and Conditions apply in respect of all work undertaken by Knight Coldicutt (“KC” and “we”) for you, except to the extent that KC agrees otherwise with you in writing.
1.0
SERVICES
1.1
The services which we are to provide for you are outlined in our letter of engagement.
1.2
Telephone or email requests or receipt of documents from you or from another party on your behalf are sufficient authority to instruct KC to act on your behalf unless we specify otherwise.
1.3
Once we have received and accepted your instructions to act either directly or indirectly KC is entitled to charge you for our services.
2.0
FEES
2.1
The basis on which our fees will be charged is set out in our letter of engagement. Our fees are based upon a combination of time, urgency of the work, complexity of the work, importance of the result and other factors. Our fees include incoming and outgoing email attendances. We also charge expenses including telephone, facsimile, photocopying, internet, couriers, file storage, etc. Any estimate is based upon the information supplied at the time, and is subject to GST and disbursements.
2.2
If a fixed fee is specified, KC will charge this for the agreed scope of our services. Fixed fee quotes exclude GST, expenses and disbursements. Work which falls outside the fixed fee scope will be charged on an hourly rate basis. KC will advise you as soon as reasonably practicable if and when it becomes necessary to provide services outside the agreed scope and, if requested, provide an estimate of the likely amount of additional costs.
2.3
Where our fees are calculated on an hourly basis, the hourly rates are set out in our letter of engagement. The differences in those rates reflect the experience and specialisation of our professional staff.
2.4
We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorise KC to deduct from funds held in the trust account for you or any of your associated or related entities, any fees, expenses or disbursements owing to KC or any consultants, barristers or other agencies contracted by KC on your behalf, or any associated or related company, entity, partnership, trust or person. KC does not require a signed copy of these terms and conditions to do so.
2.5
We will send interim invoices to you, usually at monthly intervals, and on completion of a matter or termination of our engagement. We may also send you an invoice when we incur a significant expense.
2.6
Invoices are payable within seven (7) days of receipt thereof, upon completion of a file for conveyancing matters, or as otherwise agreed.
2.7
Fees may be required to be paid before litigation work is undertaken.
2.8
If you request our invoices to be directed to a third party, you remain responsible for payment to KC if the third party fails to pay.
2.9
KC reserves the right to charge interest at 2% per month on overdue accounts. We also reserve the right to stop work on any files where you (or any of your associated entities) has overdue accounts. We also retain a lien over your files if any accounts are unpaid.
3.0
DISBURSEMENTS AND EXPENSES
3.1
Sometimes we will need to brief consultants (for example barristers) on your behalf. Third party charges will either be incorporated into KC’s fee or invoiced separately. Payment may be required in advance at times.
3.2
KC may require payment in advance for disbursements or expenses that we incur on your behalf.
4.0
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 our bankers. An administration fee may be charged from the interest derived. Fees for the provision of legal services by KC may be deducted from the balance.
5.0
CONFIDENTIALITY
5.1
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:
5.1.1
To the extent necessary or desirable to enable us to carry out your instructions; or
5.1.2
To the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers.
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
We will of course, not disclose to you confidential information which we have in relation to any other client.
6.0
FILE RETENTION
6.1
You authorise KC (without further reference to you) to destroy all files and documents for this matter (other than any documents that we hold in safe custody for you) 7 years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.
6.2
We cannot guarantee the security of any electronic communication, and therefore take no responsibility for any loss that may arise.
7.0
TERMINATION
7.1
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, including conflicts of interest.
7.2
You may terminate our retainer at any time.
7.3
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.
8.0
DUTY OF CARE
8.1
We will undertake our services with reasonable care and skill, but if you fail to disclose relevant or important information we cannot be responsible for the consequences.
8.2
Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
9.0
CONFLICTS OF INTEREST
We have procedures in place to identify and respond to 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 Law Society’s Rules of Conduct and Client Care for Lawyers.
10.0
GENERAL
10.1
If you have a complaint about our services or charges we strongly recommend that you contact a partner of the firm, our general manager or financial controller. Should a satisfactory resolution not be achieved you have the right to refer the matter to the Auckland District Law Society.
10.2
These terms and conditions apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
10.3
KC is entitled to alter its terms and conditions from time to time.
10.4
Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
INVESTMENT DISCLOSURE
The Securities Markets Act 1988 requires all persons who receive Investment Money or Investment Property to make disclosure to the investor before receiving the Money or Property. We have accordingly decided to make disclosure to all clients.
1.0
GENERAL DISCLOSURE
KC is a partnership between Kerry Knight, Brett Cran, Anthony Gore and Paul Michalik. KC and each of its partners confirm that during the five years before the date of this disclosure no partner has been:
1.1
convicted of an offence under the Securities Markets Act 1988 the Securities Act 1978, or of a crime involving dishonesty (as defined in section s2(1) of the Crimes Act 1961).
1.2
a principal officer of a body corporate at the time when that body corporate committed any one of the offences mentioned in paragraph (a) above.
1.3
adjudicated bankrupt.
1.4
prohibited by law or by a court from taking part in the management of a company or a business.
1.5
the subject of an adverse finding by a court in any proceeding taken against KC or the partner in its/his professional capacity.
1.6
expelled from, or has been prohibited from being a member of, a professional body.
2.0
INVESTMENT MONEY HANDLING PROCEDURES
2.1
Money may be paid by cheque, cash, telegraphic transfer and electronically (direct debit). If payment is not received as clear funds we may wait until the funds have cleared before disbursing them.
2.2
All Moneys received will be held on trust and will be so held until disbursed or distributed in accordance with instructions, the Lawyers and Conveyancers Act 2006, the Solicitors Audit Regulations 1987, the Solicitors Trust Account Rules 1996, and the Solicitors Trust Account Regulations 1998.
2.3
Records of Moneys received and paid out are kept on computer and printed copies of the records are available on request during normal business hours.
2.4
The receipt, holding and distribution of Investment Money is audited annually by the firm’s accountants Slight Lala.
2.5
Money received cannot be used for the benefit of any other person without your prior approval, except we may charge a commission of 5% of the interest paid on Bank Investment Money, and have the right of lien against such Moneys, for unpaid accounts.
3.0
INVESTMENT PROPERTY HANDLING PROCEDURES
3.1
Investment Property (other than money) such as share certificates and valuable documents may be delivered to KC or may be uplifted or sent to KC by third parties.
3.2
Investment Property will not be held by KC on trust. It will be received and held by KC as agent either for you or for the owner where the identity of the owner is known to us, until it is distributed in accordance with such instructions as we are given.
3.3
A receipt for Investment Property received by KC will only be issued on request. Where the Property is received for distribution in the short term it will be held on your file. Where it is received for long term custody it will be held in our deeds facility. You will have access to the Property and our records relating to the Property upon request during normal business hours.
3.4
The receipt, holding and distribution of Investment Property received by KC is audited annually by the firm’s accountants Slight Lala.
3.5
We cannot use the Investment Property for our own benefit or for any other person unless authorised to do so.
IMPORTANT NOTE: By instructing KC you agree to these terms and conditions and KC is not required to hold a signed copy.
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