MASTER TERMS OF BUSINESS

Whenever you engage our firm to help with your legal needs, our services are provided to you in accordance with our Master Terms of Business (Terms) (unless otherwise agreed in writing) which include all information required to be provided to clients by the Rules of Conduct and Client Care for Lawyers of the NZ Law Society (“NZLS Rules”).

Services

The services we will provide for you are outlined in our engagement letter.  No tax advice will be provided and we are not responsible for the impact of our advice on your or any other person’s tax affairs.

People Responsible for the Work

The names and status of the people who will have overall responsibility for the services we will provide for you are set out in our engagement letter.

Client Care and Service

The Law Society client care and service information is set out below. Whatever legal services your lawyer is providing, they 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.

The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers. Those obligations are subject to other overriding duties, including duties to the Courts and to the justice system.

If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.

Duty of Care

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 in writing. Our advice is limited to the matters stated in it and is subject to any changes in circumstances or in law.

We undertake no duty to disclose information to you which is not known by those lawyers advising you on your matter, or is subject to privilege or is confidential to another client, even though that information may be known to lawyers in the firm. Where any partner or employee of the firm undertakes activities outside the firm, including activities in the nature of a directorship, trustee role or other governance role, all information received by that person in that capacity will be private to that person and neither that person nor the firm will have any obligation to you in relation to that information, including any obligation of disclosure.

Privacy and Confidentiality

We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you (including any personal information, as defined by the Privacy Act 2020) unless you authorise us to disclose, or we are required by law to disclose, your confidential information. Any disclosure of that information will be made in accordance with the NZLS Rules. You authorise us to collect, hold, use and disclose information as required by the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 or as required for other regulatory purposes. Information obtained as a result of acting for you may be disclosed where that information is not confidential or is a matter of public record. Over the course of our engagement with you we may collect and hold personal information concerning you. Under the Privacy Act 2020 you have the right of access to, and correction of, your personal information held by us. Please refer to our Privacy Policy on our website.

Fees

The fees we will charge or the manner in which they will be arrived at, are set out in our engagement letter. Our professional fees are based on NZ Law Society guidelines and will take into account all relevant factors including:

  • The time spent on your work

  • The skill, specialised knowledge and responsibility required

  • The importance of the matter to you and the results achieved

  • The urgency and circumstances under which the business is transacted or the advice given

  • The degree of risk assumed by the lawyer including value or amount of any property or money involved

  • The complexity of the matter and the difficulty or novelty of the questions involved

  • The experience, reputation and ability of the lawyer

  • The possibility that acceptance of the particular retainer will preclude engagement of the lawyer by other clients

  • Whether the fee is fixed or conditional

  • Any quote or estimate given by the lawyer

  • Any fee agreement entered into between the lawyer and client

  • The reasonable costs of running a practice

  • The fee customarily charged in the market and locality for similar legal services

A key consideration is usually the time spent by professional staff on the engagement at charge-out rates appropriate to their levels of skill, experience and responsibility. Charge-out rates change from time to time and are available on request. They currently range from $100 to $600 per hour excluding GST.

Where the engagement letter specifies an estimated fee, please note any estimate is given in good faith based upon the information we have received to date, and our previous experience in such matters. Estimates are given as a guide only and not as a fixed quotation. If we find an estimate is likely to be exceeded, we will advise you promptly.

We may require you to pay some or all of our fees in advance or to provide other security for our fees. You authorise us to draw on any fees paid in advance immediately upon us issuing and sending an invoice to you or to hold fees paid in advance and apply them against our final invoice (and any unpaid invoices) in relation to a particular matter. You authorise us to realise any securities held on account of our fees in the event that our invoices are not paid in full on or by the due date. In providing services we may incur expenses or have to make payments to third parties on your behalf.  We may require an advance payment for such expenses or alternatively they will be included in our invoice to you. 

GST is payable by you on our fees and expenses.

Payment

By instructing us, you accept liability for our account and authorise us to deduct any fees or expenses for which we have provided an invoice from amounts pre-paid by you or from funds held on your behalf in our trust account. 

We will send interim invoices to you, usually monthly and on completion of the matter, or on termination of our engagement. All invoices are payable within 14 days of the date of the invoice. Interest will accrue on unpaid accounts at the rate of 1.5% per month from the due date until payment, and you will be responsible for any reasonable debt collection costs that we incur in recovering amounts due to us. If any fees or expenses are overdue by more than 30 days then you agree to charge as a mortgage any interest in any property you own to secure payment of all monies due to us. You will, upon demand being made in writing, execute in favour of us a mortgage to secure payment of all monies due to us. If you have not made payment within 7 days of demand being made, then you irrevocably appoint us your attorney to sign and register the mortgage on your behalf. You must pay our invoices whether or not:

  • any third party seeks a review of our invoices;

  • you have a right of indemnity or recovery from a third party; or

  • you receive any amount from a third party.

Suspension of Service

We reserve the right to stop work on your matter and keep your papers or files if accounts are not paid on time or a request for information remains unsatisfied. In particular, you agree to provide any information we require in order to manage our anti-money laundering and countering financing of terrorism obligations, as well as any obligations imposed on us by international trade and financial sanctions laws. You agree that we may refuse to establish a business relationship with you or may be required to stop or suspend providing services to you, if you fail to provide this information to us in the timeframe we specify.

Termination of Service

When your instructions on a matter are completed, or we give notice to you that our engagement is at an end, our engagement will end. You may terminate our retainer at any time. The enforceability of this agreement is not affected by termination or by any change to the Downie Stewart partnership.

If our retainer is terminated, you must pay us all fees, GST and expenses due up to the date of termination.

Third Parties and Joint Clients

If we receive instructions from you in your capacity as a director or shareholder of a limited liability company or as a settlor or trustee of a trust or estate or on behalf of any third party it is our usual practice to require your personal guarantee.  Such instructions are accepted on the basis that you are personally liable for payment of our fees and expenses if the third party fails to pay us. This applies even though our invoices may at your request or with your approval be directed to the third party.

In cases where instructions are received from more than one client jointly, such clients will be jointly and severally liable for payment of our fees and expenses. Except where you have expressly advised us otherwise, you warrant to us that you are not acting in a trustee capacity or on behalf of any other person when engaging our services.

In advising you we may rely on, or provide you with, information obtained from third parties (e.g. experts or witnesses or government agencies or registers). This information may not always be accurate and complete. We do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused by errors or omissions in information obtained from third parties.

Lawyers’ Fidelity Fund 

The Law Society maintains the Lawyers’ Fidelity Fund to provide clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Lawyers’ Fidelity Fund by way of compensation to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers & Conveyancers Act 2006, the Lawyers’ 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, including funds placed on deposit with a bank.

Professional Indemnity Insurance 

We hold professional indemnity insurance that meets or exceeds the minimum standards from time to time specified by the NZ Law Society. As with all insurances this cover has limitations and is subject to certain exclusions, terms and conditions.

Complaints

If you have any complaint about our service please raise it with the partner responsible for your matter, or, if you prefer, with any other partner in our firm.  If it cannot be resolved immediately to your satisfaction we will appoint a partner who has not been involved in your matter to deal with it promptly and fairly. If you are not satisfied with the outcome, you have the right to take the matter up with the NZ Law Society which runs a complaints service and may be contacted at PO Box 5041, Lambton Quay, Wellington 6145, phone 0800261801 or email complaints@lawsociety.org.nz

Retention of Files and Documents

You authorise us (without further reference to you) to destroy all files and documents for this matter (other than any documents that we are required to 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. Your information (about you and about your matter) is stored in Sydney on servers owned by Amazon Web Services Australia Pty Ltd whose address is L37 2-26 Park St, Sydney, New South Wales 2000 and you directly authorise that company to store your personal and matter information. In addition, Microsoft 365 is regularly backed up and stored at the Sydney IBX Data Centre at 200 Bourke Road, Alexandria, Sydney NSW 2015, Australia, and you directly authorise that storage of your personal and matter information there.

Electronic Communications

We may correspond with you and others by electronic communication, unless you instruct us not to do so. Electronic communications are not secure. They may be read, copied or interfered with in transit or may contain viruses or other defects. We will not be responsible for any of the risks associated with electronic communication. Where any such communication (including any communication purporting to be sent by you) includes a direction or request to transfer funds, we may elect not to do so until we have independently verified, to our satisfaction, that direction or request by means other than electronic communication.

Without limiting anything in the limitation of liability in our Terms, we do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused by or arising from our refusal to act on any electronic communication comprising a direction or request to transfer funds where we have not been able to independently verify that direction or request to our satisfaction.

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 NZLS Rules.

Consent to Release of Information

You acknowledge that we are legally obliged to provide information to third parties in relation to matters arising in respect of Foreign Trusts, FATCA (Foreign Account Tax Compliance Act) & CRS (Common Reporting Standard) International Treaties and in relation to the provisions of the AML/CFT Act (Anti-Money Laundering & Countering Financing of Terrorism Act). No legal liability shall attach to us in relation to such disclosure. You agree to immediately notify us in writing of any change to your Foreign Trust, FATCA, CRS, AML, or CFT status.

Trust Account

We maintain a trust account for all funds received from clients (except monies received for payment of our invoices).  Where significant funds are held on your behalf these may be placed on interest-bearing deposit with a bank where this is practicable having regard to the FATCA/CRS compliance costs involved. An administration fee of 7.5% of any interest earned will be charged. 

General

These Terms apply to any current or future engagement, whether or not we send you another copy of them.  We may update our Terms from time to time and we will give notice to you by publishing the latest Terms on our website. Each change will bind you in respect of any matters or work in respect of which we accept instructions from you after the publication of the change on our website.

Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction.

You may only assign your rights under this agreement with our prior written consent.

Limitation of Liability

To the extent permitted by law, you agree that our total liability to you in connection with this matter, or on any related matters on which you engage us, will not exceed $500,000 including interest, costs and any other loss (the liability cap).

The liability cap applies to liability of any kind, regardless of how it arises, whether in contract, in tort (including negligence), statute, equity or otherwise.

If we provide services to any persons or entities related to or associated with you or to anyone else at your request (whether or not we also advise you) on a matter or series of related matters then our aggregate liability to you and all those persons and entities in relation to that matter (or series of related matters) will be subject to the liability cap. You must ensure that those persons or entities agree to this.

We will not be liable for any loss of any kind caused to you when: (a) you pay monies to an incorrect bank account (including, but not limited to, where you pay based on an unverified instruction purporting to be from us), (b) we are unable to pay any monies to you or a third party due to matters beyond our reasonable control (e.g. system or power outage), or (c) you or a third party refuses to supply information to us in connection with the AML/CFT Act when requested to do so. Further, if a third-party bank (whether our bankers or any third-party bank) refuses to process a payment due to a failure by you or a third party to supply information reasonably requested to that bank in order to satisfy their obligations under the AML/CFT Act, we will not be responsible for any losses of any kind caused by that failure.  

The liability cap accrues for the benefit of any partner, employee, or agent of ours that may have acted in connection with the matter, so that in no instance will the liability of any person, and all persons claimed against in the aggregate, be for more than the liability cap.