TERMS AND CONDITIONS OF ENGAGEMENT
AS AT 31 MARCH 2018
These Terms and Conditions apply in respect of all work undertaken by Knight Coldicutt Limited (“KC”, “us” and “we”) for you, except to the extent we agree otherwise with you in writing.
1.1. The services we are to provide for you may be outlined in our letter of engagement or other correspondence with you (but can be varied by correspondence between us).
1.2. Telephone or email requests or receipt of documents from you or from another party on your behalf are sufficient authority to engage KC to act on your behalf.
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.
1.4. Unless otherwise agreed in writing, we take no responsibility for the review of third party reports (such as, a LIM, building report or valuation) that may be obtained during the conduct of the matter. While we may comment on such reports or draw matters to your attention, this is simply to assist you and is not an assumption of any responsibility in this regard. You acknowledge that we will not possess the necessary expertise to fully evaluate such reports and you remain responsible for satisfying yourself as to their contents – where applicable by obtaining specialist advice. This is particularly important in relation to conveyances involving “leaky” building issues and we will not advise you in relation to the merits of such transactions.
1.5. You acknowledge that, regardless of any advice we may provide, responsibility for assessing the merits of any transaction or course of action lies with you.
1.6. KC does not provide specialist Relationship Property or tax advice (or advice in relation to FATCA or Common Reporting Standards residency or status). These are specialist areas of law and where any work we undertake for you has these aspects, you remain responsible for obtaining specialist advice to confirm or supplement any advice we may provide.
2.1. The basis on which our fees are charged is set out in our letter of engagement. Our fees are based upon a combination of factors including time, urgency, complexity of work and importance of the result.
2.2. Fee estimates and fixed fee agreements are based on the information supplied at the time of instructions being provided. They exclude disbursements, expenses and GST. Estimates do not amount to a quote and our fees and expenses may exceed the estimate.
2.3. If a fixed fee is specified, KC will charge this for the agreed scope of our services and timeframe for completion. Work which falls outside the scope or timeframe or which was not anticipated will be charged in addition to the fixed fee on a time and attendance basis. Unless otherwise agreed in writing, any fixed fee or estimate assumes that the matter will involve only minor negotiations and no delays or disputes. KC will advise you as soon as reasonably practicable if it becomes necessary to provide services outside the agreed scope and, if requested, provide an estimate of the likely additional costs.
2.4. Where our fees are calculated on a time and attendance basis, the underlying hourly rates are set out in our letter of engagement. The differences in those rates reflect the experience and specialisation of our professional staff.
2.5. We may ask you to pre-pay amounts or provide security for our fees, disbursements and expenses (particularly before barristers are instructed). You authorise KC to deduct from funds held in the trust account for you or any associated or related person or entity, any fees, disbursements or expenses owing to KC or any consultants, barristers or other agencies contracted by KC on your behalf, or on behalf of any associated or related person or entity. KC does not require a signed copy of these terms and conditions to do so.
2.6. We may 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.
2.7. Invoices are payable on the earlier of 7 days of receipt or settlement (for conveyancing matters or other transactions) or as otherwise agreed. Any queries in relation to an invoice must be raised by you within 10 working days of receipt to enable a prompt and timely response and resolution of any issues.
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 may charge interest at 2% per month on overdue accounts. We also reserve the right to stop work on any files where you (or any associated person or entity) has overdue accounts. We also retain a lien over your files (physical or electronic) if any accounts are unpaid.
3. DISBURSEMENTS AND EXPENSES
3.1. We may incur disbursements in the course of our work, including courier or travel expenses. Sometimes we will brief consultants, such as barristers, on your behalf. We may also incur other third party costs such as Council, Companies Office, Land Information NZ and Quotable Value charges. Disbursements are actual third party costs we incur on your behalf or as part of our work for you. The cost of such third party disbursements will be itemised on KC’s invoices or invoiced separately. Payment may be required in advance. Unless otherwise stated, any third party charges are incurred on your behalf as your agent and you accept liability for such charges.
3.2. Some disbursements also incur additional handling fees to recover the costs of resources we use in arranging these third party services. These include, for example, Landonline licence fees, Companies Office fees, Personal Property Securities registration and search fees and associated administrative resources. These are charged as expenses and such overheads are not included in hourly rates or fixed fee charges. A schedule of these fees, as they apply from time to time, can be provided on request.
3.3. Service charges for administrative costs include telephone, facsimile, photocopying, forms, file storage and FATCA / Common Reporting Standards and AML administration. These charges are calculated as a percentage of our fees (the amount can be advised on request). They are not included in our hourly rates or fixed fee charges.
4. TRUST ACCOUNT
4.1. We maintain a trust account for all funds we receive from clients (except money received for payment of our invoices). If we hold significant funds on your behalf we normally lodge them on interest bearing deposit (IBD) with our bank. However, you must first provide all information or certifications requested by us and you acknowledge that until such information has been provided to our satisfaction we are not required to lodge funds on IBD. If we consider, at our discretion, that the amount of net interest likely to be earned is small, we may decide not to lodge funds on IBD. An administration fee may be charged from the interest derived (the amount of which can be advised on request).
4.2. We may, at our discretion, refuse to disburse trust funds if we consider it appropriate for the purposes of conforming with our professional or legal obligations (such as under anti-money laundering rules) including where we are not satisfied with your response to information or certifications requested by us.
4.3. Where we hold funds for you and another party(s) as escrow agent or stakeholder, further terms and conditions apply (which can be provided to you on request). The deposit of escrow or stakeholder funds to our trust account is acceptance of those further terms and conditions.
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;
5.1.2. to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers; or
5.1.3. where we, at our discretion, consider it appropriate for the purposes of conforming with our legal or professional obligations or the request of our bank, the Department of Internal Affairs or Inland Revenue Department (for example, under anti-money laundering rules or for Residential Land Withholding Tax or FATCA/Common Reporting Standards purposes).
You irrevocably authorise us to make any such disclosure. Where you provide us with any information or certification for purposes such as AML/CFT, FATCA or Common Reporting Standards, you must promptly advise us of any changes to that information or certification. You also indemnify us against any cost, loss or consequence whatsoever (direct or indirect) of providing us with any false or misleading information or failing to provide information (or updating that information) where relevant.
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 not disclose to you confidential information which we have in relation to any other client.
5.4. We cannot guarantee the security of any electronic communication, and therefore take no responsibility for any loss that may arise.
5.5. You agree that from time to time we may provide you with other information such as bulletins or newsletters. At any time you can request that these not be sent to you.
6. FILE RETENTION & DEEDS
6.1. You authorise KC (without further reference to you) to destroy all files and documents (other than any documents we hold in safe custody for you) 6 years after work on that file ends, or earlier if we have converted those files and documents to an electronic format. We cannot guarantee that electronic copies will always be available or readable.
6.2. We may charge an administration fee for accessing or retrieving old files (whether physical or electronic). The fee will depend on the location and number of files involved and we can advise you of such fee on request.
6.3. Where we agree to hold documents for you in safe custody, we reserve the right to return the documents at any time and to destroy documents that, in our opinion, appear redundant.
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. We may immediately cease acting for you and terminate our retainer if you fail to provide us with information we request in connection with the matter. This includes identification, tax numbers, bank account details or information connected with our AML/CFT, FATCA, Common Reporting Standards or professional or legal obligations. We may also cease to act or refuse to settle a transaction on your behalf if we are not satisfied (at our discretion) with our ability to comply with Residential Land Withholding Tax obligations. You acknowledge that, should we cease to act (or refuse to settle) in such circumstances, it may seriously prejudice your position and we have no responsibility in such circumstances.
7.3. You may terminate our retainer at any time.
7.4. If our retainer is terminated you must pay to KC all fees due up to the date of termination, including fixed fees, and all disbursements, expenses and office service charges incurred up to that date.
8. DUTY OF CARE & LIABILITY
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. Where our services are provided for a limited or specific scope of work, we have no liability or responsibility for any loss or issue that may arise from matters falling outside that scope of work whatsoever and you are responsible for taking steps to ensure you understand any risks associated with instructing us for a limited or specific scope of work.
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 agree to this in writing.
8.3. For the purposes of any claim against us, as defined by the Limitation Act 2010, whether in contract, tort, equity or otherwise, arising out of our engagement, the Act shall be modified so that any claim must be filed within 12 months after the date of the act or omission on which the claim is based. Further, the “late knowledge” provisions in sections 11(2), 11(3), 14 and 32(2) shall not apply. The 12 month time period applies whether or not loss or damage has become apparent or has been suffered within that time period.
8.4. To the extent allowed by law, our aggregate liability to you (whether in contact, tort, equity or otherwise) in connection with our services is limited to the amount available to be paid under the Professional Indemnity insurance held by us. We are not liable for any loss or damage suffered by any person other than the client or caused by late or inadequate instructions or for any indirect or consequential loss whatsoever.
9. CONFLICTS OF INTEREST
9.1. 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.
9.2. Lawyers routinely act for borrowers and lenders in the same transaction – at your cost and subject to the lender’s instructions, terms and conditions. In such circumstances we have duties to the lender as well as you. This includes a duty to disclose information to the lender that may be detrimental to you. You acknowledge this conflict and that we have no liability or responsibility for any loss or issue that may arise as a result thereof.
10. AVAILABILITY TO PROVIDE INSTRUCTIONS
We can only act on your instructions. You must ensure that you will be available to provide instructions to us as required throughout the course of the matter. This is particularly important at critical times, such as the settlement day of a conveyancing transaction. It is your responsibility to ensure that you are available to provide instructions as required. Circumstances can arise where your position could be seriously prejudiced if we are unable to obtain timely instructions from you. We may also be required to take a particular course of action to protect your position. We have no responsibility for the consequences if we are unable to obtain timely instructions or if we take a course of action to protect your position in the absence of timely instructions.
11.1. If you have a complaint about our services or charges we strongly recommend you contact a director of KC. Should a satisfactory resolution not be achieved you have the right to refer the matter to the New Zealand Law Society.
11.2. 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.
11.3. KC is entitled to alter its terms and conditions from time to time.
11.4. Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.
IMPORTANT NOTE: By instructing KC you agree to these terms and conditions and KC is not required to hold a signed copy.
KNIGHT COLDICUTT LIMITED