Terms of Engagement
These standard Terms of Engagement (Terms) apply with regard to all work carried out by Dawson & Associates Ltd for you, except where we otherwise agree with you in writing. If these terms are to change, we will notify you in advance. By continuing to instruct us after receipt of our Letter of Engagement you are deemed to accept these Terms.
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.
1.2The opinions we provide as to the outcome of any legal matters are an expression of our professional judgement. They are not guarantees.
1.3If 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
1.4Given the size of the New Zealand commercial market and maritime industry, we are sometimes requested to act for clients whose interest’s conflict. We have procedures in place to identify possible conflicts of interest, and to respond to those if required.
1.5If a conflict of interest arises in relation to any matter on which you have instructed us, or we are asked to act for other clients whose commercial interests differ from your own, we will advise you 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.
1.6Where 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.
Third Parties
1.7If, in the course of the matter 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.
2. Your Commitment to Us
Due Diligence Obligations
2.1We must comply with our obligations under all laws binding on us, including:
Anti-money laundering and countering financing of terrorism laws; and
Laws relating to tax reporting and withholdings.
2.2In order to do so, we may be required to conduct customer due diligence on you, persons acting on your behalf, and other relevant persons such as your beneficial owners or persons who have effective control of you and (in the case of a trust) the beneficiaries of the trust. We may not be able to act or continue acting for you, or to complete trust account transactions for you, until this is completed.
2.3We may be required to provide information about you, persons acting on your behalf, and other relevant persons as described above 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.
2.4Please ensure that any of the persons described above in respect of whom we collect information 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
2.5You may terminate our engagement at any time, under any of the circumstances set out in the New Zealand Law Society’s (NZLS’s) Rules of Conduct and Client Care for Lawyers.
2.6If 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. Rates may change depending on the complexity of the matter. Any difference in hourly rates between our legal team reflects their experience and level of specialisation.
Capped Fee
3.2Where 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
3.3We 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
3.4If you would like us to provide you with an estimate of fees for your matter, we will do this prior to commencing work. This will be a guide rather than a fixed quote.
3.5If your matter looks likely to exceed our initial estimate, we will give you a clear indication of expected additional cost.
Retainers
3.6If 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
5.1We 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.
5.2Where we are required to conduct client due diligence, we may charge an additional fee of $250.00 plus GST.
6. Our Invoices
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 Account
7.1Where 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.
7.2We 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.
7.3Should we not receive payment of our fees from you 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. Trust Account
9.1We maintain trust accounts for all funds received from clients in the following currencies:
New Zealand dollars
Australian dollars
US dollars
British pounds
Euros
Japanese yen
9.2Significant 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.
9.3Should we hold trust funds on your behalf, we require specific written instructions from you prior to disbursing or otherwise dealing with these funds.
10. Retention of Files and Documents
10.1Unless otherwise agreed, Dawson & Associates Ltd retains the copyright in all documents prepared on your behalf in the performance of our professional services. While you will be entitled to use the documents and any copies for the purpose for which they were intended, you (or any other person) are not permitted to make use of, or modify any document, for any other purpose without our agreement in writing.
10.2We 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.
10.3All original agreements will be returned to you.
10.4Please advise us in writing should you wish to keep the file or part thereof before the matter has been finalised.
11. Confidentiality
11.1All information concerning you or your affairs acquired during the course of acting for you will be kept confidential. We will not disclose any of this information to any other person except:
Where it is required or authorised by you to enable us to carry out your instructions; or
Where required by law or by the NZLS’s Rules of Conduct and Client Care for Lawyers; or
It is required by law (including the laws of any foreign jurisdictions).
11.2Your confidential information, as far as practicable, will only be made available to those within our firm who provide legal services for you.
11.3We will not disclose any confidential information relating to any other client.
11.4We will abide by the information privacy rules set out in the Privacy Act 1993.
11.5Our Privacy Policy can be viewed on our website.
12. Liability
12.1To 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.
12.2To 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$30,000.
12.3The 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.
13. Professional Indemnity Insurance
13.1We 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.
14. Lawyers Fidelity Fund
14.1The 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.
15. Complaints
15.1We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.
15.2If 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.
15.3If 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.
15.4She may be contacted as follows:
By letter to Dawson & Associates Ltd, PO Box 3830, Richmond 7050, New Zealand;
By email at annette@maritimelaw.co.nz; or
By telephoning 03 544 1967 (+64 3 544 1967 if calling from outside New Zealand).
15.5The NZLS operates the Lawyers Complaints Service and you are able to 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.
16. Feedback
16.1We wish to meet your expectations wherever possible, and appreciate any feedback, whether good or bad.
16.2Please contact Peter Dawson if you have any comments about our services, peter@maritimelaw.co.nz.