Terms of Engagement

These Terms of Engagement (‘Terms’), along with the accompanying Letter of Engagement or New Instruction email (together, the ‘LOE’), set out the terms and conditions on which Dawson & Associates Ltd will provide the legal services described in the LOE to you. These Terms apply to all current and future work carried out for you by us, except where we otherwise agree with you in writing. They supersede and replace any terms and conditions which you have previously received from us.

1. Our Commitment to You

1.1Our duty of care is to you and not to any other person. We do not owe a duty of care to anyone else. Before any other person may rely on our advice, we must expressly agree to this.

1.2We will provide you with legal services, to the extent authorised by you, as defined the Lawyers and Conveyancers Act 2006, on each instruction from you that we accept, and to incur reasonable expenses on your behalf.

1.3The opinions we provide as to the outcome of any legal matters are an expression of our professional judgement. They are not guarantees.

1.4We are not tax experts, and you should seek separate bespoke advice on any agreement, transaction, or settlement on which we are advising you.

1.5If we assist you in respect of matters governed by laws other than those in New Zealand, we do so on the basis that we do not accept any responsibility in relation to your legal position under that foreign law.

Conflicts of Interest

1.6Given the size of the New Zealand commercial market and maritime industry, we may be requested to act for clients whose interest’s conflict. We have procedures in place to identify and respond to conflicts of interest.

1.7If a conflict of interest arises on your matter, or we are asked to act for other clients whose commercial interests differ from your own, we will advise you in writing of this. We will not act without your consent for any other client where that client’s instructions:

• Are substantially related 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. 

1.8Where we hold confidential information on your behalf but no longer act for you on that matter, we will ensure that effective information barriers are in place so that there is no material risk that you will be disadvantaged by our holding that information.

1.9We ask you to notify us promptly of anything which you think involves a potential conflict of interest between yourself and another client, or us.

Third Parties

1.10During the matter, if we are required to retain counsel, experts or other third parties, we will seek your prior approval. On receipt of your approval we are deemed to act as your agent on your behalf, and you are primarily responsible as principal for the payment of any costs incurred upon presentation of invoice. 

verbal advice

1.11Any advice given by us over to you verbally over the phone or in person that is not supported by subsequent formal written advice is not and should not be relied upon as formal legal advice by you.

client care and service

1.12Whatever legal services we are providing, we must:

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

• 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.

2. Your Commitment to Us

Due Diligence Obligations

2.1We must comply with our obligations under all laws binding on us, including:

• The Lawyers Conduct and Client Care Rules of the New Zealand Law Society (the ‘Rules’)

• The Countering Financing of Terrorism Act 2009 (the ‘AML/CFT’)

• The Income Tax Act 2007

• The Goods and Services Tax Act 1985

• The Privacy Act 2020

2.2Under these laws, we may be required to verify your identity before we can act for you. We will ask you to provide the necessary information when we first take instructions from you. We may ask for updated identification if the documentation you originally provided has expired.

2.3We may charge you based on the time spent in obtaining the information (our AML fee). Any costs set out in this section is subject to annual review.

2.4Any documents you provide to us will be kept for audit purposes as part of our anti-money laundering procedures.

2.5We may be required to provide information about you, persons acting on your behalf, and other relevant persons to government agencies. We may not be permitted to tell you or such persons if we do provide such information. We may also be required to provide such information to banks with which we place your funds through our trust account, and information provided to banks may be in turn be passed on by them to tax and other regulatory authorities in New Zealand and offshore.

2.6Please ensure that any persons we collect information from are aware of and consent to this and to the provisions of our Privacy Policy which can be viewed on our website. Please also ensure that all information provided to us is accurate. We are not responsible to you, or anyone else, for anything done or not done by us (including any provision of information by us to any third party or any withholdings made) in order to comply with our legal obligations.

Termination

2.7You may terminate our engagement at any time, under any of the circumstances set out in the Rules.

2.8If our engagement is terminated you must pay us all fees due and expenses incurred up to the date of termination.

3. Our Fees

Hourly Rate Basis

3.1Unless otherwise agreed in writing, we charge on an hourly rate basis. Our current rates are set out in the LOE and are specific to each legal matter you instruct us on.

3.2Any difference in hourly rates between our legal team reflects their experience and level of specialisation.

3.3We reserve the right to review and amend the rates at the end of the New Zealand financial year (31 March), upon notice to you.

Capped Fee

3.4Where the scope of the work is reasonably accurate, we can charge on a capped fee basis. The scope of the work must be made subject to an agreed set of clear assumptions. Fees are paid in accordance with set milestones, against invoices with detailed narratives that record the precise extent of the work delivered, and the balance of fee capacity remaining under the cap. The client will benefit from any unused portion of the cap. 

Flat Fee / Contingency Arrangements

3.5We are open to flat fee and contingency arrangements and are happy to discuss this with you. We would agree any arrangements with you in writing at the start of your matter.

Estimates

3.6

If you request an estimate of fees for your matter, we will provide this prior to commencing work. This will be an estimate, not a fixed quote.

3.7When your matter reaches 80% of the estimate provided, we will let you know.

Retainers

3.8If we require a retainer in advance to cover fees and disbursements, the retainer must be paid into our trust account. After we send you an invoice, we will deduct the required amounts as they become due. We may require further retainers as and when necessary.

4. Expenses and Disbursements

4.1We will not charge for disbursements, unless they are disproportionate to the matter, in which case we reserve the right to recover the actual cost (without mark-up) of these items from you. We will bill you for larger items (e.g. accommodation, travel and court fees). We will discuss these potential costs with you prior to incurring the costs.

5. AML Fee

5.1

From 1 July 2018, lawyers in New Zealand became subject to statutory obligations under the AML/CFT. This obliges us to carry out additional work on each file which may include identifying clients, identifying sources of wealth and sources of income, assessing AML/CFT risk in transactions and reporting certain matters to the New Zealand Police Financial Intelligence Unit (FIU).

5.2Where we are required to conduct client due diligence, we may charge an additional fee of $250.00 plus GST.

6. Invoicing Procedure

6.1We issue itemised monthly invoices and statements, payable on receipt.

6.2All fees must be paid in New Zealand dollars unless agreed otherwise.

6.3If you are a New Zealand resident or entity, our invoices will include any New Zealand Goods and Services Tax (GST) applicable to the services we supply to you.

7. Payment of our Invoices 

7.1Our invoices are payable within 14 days of the invoice date, unless alternative arrangements have been made.

7.2Where an arrangement is made to send an invoice to another person appointed by you and that person fails to pay the invoice, you remain liable to pay that invoice.

7.3We reserve the right to charge interest at 8% per annum over the Reserve Bank of New Zealand’s Official Cash Rate on invoices that remain unpaid for 30 days or more after the invoice date. Interest accrues on a day-to-day basis from the invoice date, up to and including the date of actual payment.

7.4If an invoice remains unpaid, we reserve the right to suspend all work and to retain your file until we receive the due payment. You will be held responsible for any reasonable debt collection and all legal costs and disbursements that we incur in the debt collection process.

8. Settlement Funds

8.1Where your matter involves a transaction that may end up in a settlement (such as the sale of business shares or assets) we reserve the right to deduct all our fees and expenses before we distribute any settlement funds to you.

9. Funds Held by Us

9.1

We can hold funds on your behalf, subject to verification of your identity under AML.

9.2We maintain trust accounts for all funds received from clients in the following currencies:

• New Zealand dollars

• Australian dollars

• US dollars

• British pounds

• Euros

9.3

We do not accept responsibility for the financial stability of any bank in which your funds are held, or liability for the failure of any such bank. We do not accept liability for any delay in the transfer of funds via the banking system – this is outside our control and caused by transaction checks for regulatory compliance purposes.

9.4Significant funds held on your behalf (New Zealand dollars only) will normally be lodged on an interest bearing deposit with a bank. We reserve the right to charge an administration fee for handling these funds. Interest may not accrue on foreign currency accounts. 

9.5

Where we are holding money for you, on account or otherwise, we will seek your consent (which may not be unreasonably withheld) to apply these funds towards payment or part payment of any invoices submitted by us which remain outstanding from you. We will advise you when this is being done.

9.6Should you transfer funds to us prior to your identity being verified pursuant to section 2.2 of these Terms, we will be unable to return those funds to you until your identity is verified.

9.7If we hold trust funds on your behalf, we require specific written instructions from you prior to disbursing or otherwise dealing with these funds.

10. Copyright in Documents

10.1You are entitled to use the documents and any copies for the purpose for which they were intended, but are not permitted to make use of, or modify any document, for any other purpose without our agreement in writing.

11. Retention of Documents

11.1

We will, subject to any legal requirement, retain your file on any matter for a minimum of seven (7) years after the matter has been concluded. We may hold the file electronically rather than physically, whereafter we may destroy the file without further instructions from you or communication to you.

11.2Where we store your files electronically, we may use servers that are located outside New Zealand for that purpose. We may also use file sharing sites that are located outside New Zealand to efficiently transfer documents when required.

11.3

All original agreements will be returned to you.

11.4We may agree to hold important legal documents or deeds relating to your legal affairs for safe keeping. We will hold these documents at your risk.

11.5Please advise us in writing should you wish to keep the file or part thereof before the matter has been finalised.

12. Confidentiality

12.1All information concerning you or your affairs acquired during the course of acting for you will be kept confidential. 

12.2Your confidential information, as far as practicable, will only be made available to those within our firm who provide legal services for you.

12.3We will not disclose any confidential information relating to any other client.

12.4We will abide by the information privacy rules set out in the Privacy Act 2020.

12.5Our Privacy Policy can be viewed on our website.

12.6We will communicate with you in the most secure means possible to ensure the continued confidentiality of the information we hold about you, and for you. If requested by you, we may use specific messaging platforms such as WhatsApp to keep you updated. All messages from these interactions will be saved onto your matter file as necessary.

13. Information Sharing and Use of Your Data

13.1We will not disclose any personal data (or confidential information) obtained as a result of acting for you, to any other person except where:

• It is required or authorised by you to enable us to carry out your instructions; or

• It is required by law or by the Rules; or

• It is required by law (including the laws of any foreign jurisdictions).

13.2We will only disclose personal information to foreign persons or entities where we are satisfied the conditions of the Information Privacy Principle 12 of the Privacy Act 2020 are met.

14. Use of Materials in Promotional Material

14.1Where your instruction to us relates to vessel transactional matters you authorise us to reasonably use references to images and/or the name of the vessel for our promotional material.

14.2Any such use will exclude any references to you directly or indirectly in a manner which could be reasonably used to identify you.

15. Liability

15.1To the extent permitted by law our total liability to you in connection with this instruction will not exceed the amount available (if any) to be paid out to you for that liability under our professional indemnity insurance policy, which currently has a limit of NZ$1,000,000 per claim.

15.2To the extent that the limitation is held by a court of competent jurisdiction not to cap our liability (and only in those circumstances) our liability over and above any sum paid out under our professional indemnity insurance policy (if any) shall be limited in aggregate to a sum that does not exceed an amount equal to the paid fees for this instruction (excluding any office service charge, disbursements and GST) up to a maximum of NZ$20,000.

15.3The above limitations apply to liability of all kinds, whether in contract, tort, equity or otherwise and you agree to release us from all claims arising from this instruction to the extent that our liability in respect of such claims would exceed the amount stated.

16. Professional Indemnity Insurance

16.1We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the NZLS. We will provide you with particulars of the minimum standards on request. 

17. Lawyers’ Fidelity Fund

17.1The NZLS maintains the Lawyers’ Fidelity Fund for the purpose 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 NZ$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.

18. Resolving Problems

18.1We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.

18.2If 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 (as identified in our LOE).

18.3If 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 Annette Win - annette@maritimelaw.co.nz.

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18.4The NZLS operates the Lawyers Complaints Service, and you can make a complaint to that service. To do so, phone 0800 261 801 (+64 4 472 7837 if calling from outside New Zealand) and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.

19. Governing Law

19.1

These Terms of Engagement will be governed by and construed in accordance with the laws of New Zealand.

19.2Any legal action, suit or proceeding, or any other matter arising out of or in connection with these Terms or legal services provided by us to you, will be submitted to the exclusive jurisdiction of the Courts of New Zealand.

20. Deemed Acceptance

20.1By continuing to instruct us after receipt of our Letter of Engagement, you are deemed to accept these Terms.