TERMS OF ENGAGEMENT

Before we work together

Here are a few conditions for our working relationship. Before we work together please read these and submit the form at the bottom of the page.

OUR SERVICES

You have asked us to help you with a legal issue. We have written you a letter of engagement setting out our understanding of your instructions and the work we will be doing for you.

We will give you straightforward advice about the legal and practical issues you need to consider, the time we expect to take, and the steps we need to take.

We will tell you if we think that what you want may not be possible or will cost more than the result may be worth.

We will tell you (in writing) if something comes up that will change the way we need to do the job or which will affect the cost before we go any further.

If we are holding your money for any length of time in our trust account, we will usually put it into an interest-bearing deposit depending on the amount and when we expect to have to transfer it out again.

LIMITATIONS

In any situation where it is advisable or recommended that a client or an associated person (such as a guarantor) take independent legal advice we will advise them to do so. If they chose not to do so, then our responsibilities are limited to an explanation of the terms of any document to be signed by them and the witnessing of their signatures to any such document. We will not provide any advice to them about the advisability of entering into any such transaction or arrangement. Where a client has received external advice in respect of some aspect of a transaction, such as financial advice from a mortgage broker or a financial adviser, and we are instructed to implement those arrangements, for example by preparing loan documents, then we do not advise on the suitability of those arrangements. They fall outside the scope of our retainer. Our responsibility is limited to implementing the arrangement in terms of the instructions given to us.

Our liability in matters relating to a property transaction where you obtain a LIM report will be limited to the contents of the LIM report in respect of Building Consents. If you obtain a Council property file or LIM, our review is limited to the documents you provide us and you must compare any floor plans to the actual buildings on the property. We will assist on matters that are noted in the LIM report, but we will not contact the Council for any further information. If there are matters in the LIM report that require further investigation, it will be your responsibility to approach the Council or other relevant bodies to satisfy yourself before you make the final decision to approve or disapprove the report.

Our liability in matters relating to a builder’s report will not extend to the content of the builder’s report. We will not contact the builder for any further information. If there are matters in the builder’s report that require further information, it will be your responsibility to make enquiries of the builder before you make the final decision to approve or disapprove the report.

The decision to purchase any land or land with buildings (“property”) in which we are instructed to act for you is solely yours. We shall not in any way be liable for any matters that are associated with either the quality of the property, the investment or the suitability of the property for your requirements. For sake of clarity the term quality shall include a building that is leaky or building that is not permitted and a building that does not comply with the resource consent, or District Plan. The term property includes land with buildings or vacant land and the term quality in the context of the land shall include any impediment to the enjoyment of the land.

If the property that you are purchasing is a cross lease or unit title property, it is your responsibility to check the title and flats plan to ensure that the title and flats plan corresponds with the actual buildings on site.

We are not liable for any taxation consequences arising from the work we do for you. You should obtain accounting advice if you have any doubts about tax consequences arising from the work we do for you.

OUR FEES

We calculate our fees to provide us a fair and reasonable return for our services and we use the following criteria (not in order of importance):

• The skill, specialised knowledge and responsibility required.

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

• The urgency and circumstances in which work is carried out.

• The value or amount of any property or money involved.

• The number and importance of the documents prepared or reviewed.

• The time and labour spent on the job.

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

• The reasonable costs of running our firm.

We may give a fixed quote for work that is entirely within our control and for which we have complete instructions from you.

If we work on a time basis, we will quote you our hourly rates.

In order to manage our cash flow and yours as smoothly as possible we may ask for a retainer to be paid when we start work for you

We may include in our invoice an office expense charge for telephone tolls, photocopying, faxes, postage and similar expenses. The office expense charge is GST inclusive. We may include in our invoice a charge or charges for undertaking work on your behalf in Landonline the on-line land record system established by Land Information NZ (LINZ). These charges described in our invoices as e-dealing fees or e-search fees and are GST inclusive

If you ask us to make an international payment on your behalf, we will deduct our bank’s international payment fee of $9 per payment from the payment amount. We may also deduct a fee of $25.00 per transaction, GST inclusive, from the payment amount. The receiving bank may also charge fees for receiving the payment. You must provide us with all the information we require to make the international payment. We are not responsible for change in exchange rate between your instructions and the payment.

We will bill you either at the end of the job, or on completing a part of the job, or at the end of each month.

Our fee estimates, or quotes, are GST exclusive unless advised otherwise.

All costs incurred, including but not limited to debt collection agency charges and legal fees (which may include time spent by directors or solicitors of this firm at their usual hourly rates) by us in recovery of our overdue accounts will be payable by you as a fee.

Our fees are payable by you seven days from the date of our invoice or if we have a reached different arrangement with you, as agreed.

If you are late in paying us, then we may charge you penalty interest at the rate of 2% per month until you have paid us.

If you do not pay us, we will stop working for you.

CONFIDENTIALITY

The confidentiality of your information is of utmost importance. We will not disclose any information about you to anyone outside our firm, with a few exceptions, including where we:

• Receive your authorisation to do so, either expressly, or where is necessary to carry out legal work for you;

• Reasonably believe you are proposing to hurt someone or commit a serious crime;

• Are required by law, including for Anti Money Laundering/Countering of Terrorist Financing purposes, and to comply with tax information reporting requirements including those of the Foreign Account Tax Compliance Act;

• Are attempting to obtain payment of our fees from you.

When making disclosures as above, we will disclose only what is reasonably necessary to enable us to comply with our obligations or recover our fees.

For the purposes of this clause, you authorise us to disclose your identity information to a third party but only for the purpose of complying with our obligation to positively identify you pursuant to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

Subject to certain circumstances and exclusions set out in the Privacy Act 2020, you have the right to access all personal information held about you by us. If any of the information is incorrect, you have the right to have it corrected. Subject to all the above, we and our agents shall keep all of your information confidential except where necessary to give effect to your instructions. If there is a breach of privacy involving your personal information, we will comply with any legal obligations in the Privacy Act 2020.

DEDUCTION OF FEES

If we hold funds on your behalf you authorise us to deduct our fees from those funds (unless they have been provided for a particular purpose) and send you an invoice as required by the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.

INSURANCE

We hold professional indemnity insurance which meets or exceeds the minimum standards set by the Law Society.

LAWYERS’ FIDELITY FUND COVERAGE

The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers with protection against loss arising from theft by lawyers. The maximum amount to an individual claimant is limited to $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.

KEEPING YOUR RECORDS

We will retain or dispose of your records in accordance with our terms of engagement. We will provide copies to you in accordance with our obligations under the Privacy Act 1993 on request. We may charge for the cost of providing records to you.

If you give us a paper document, or we receive one on your behalf, we are authorised to destroy it after making an electronic copy of that document. We will not destroy Wills or any other document we have agreed in writing to hold in safe custody for you.

COMPLIANCE OBLIGATIONS

We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):

• Anti-money laundering and countering financing of terrorism laws; and

• Laws relating to tax and client reporting and withholdings.

We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin acting, or to continue acting, for you until that is completed.

LAW SOCIETY’S CLIENT CARE AND SERVICE INFORMATION

The Law Society’s client care and service information is set out below.

Whatever legal services your lawyer is providing, he or she 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 in which 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.

LAWYERS COMPLAINTS SERVICE

If you have a complaint about the services you have received from our firm please contact Gemma Barden, Director/Solicitor; gemma@bardenandco.nz; (07) 863 6594

If we have been unable to resolve a complaint or concern you may contact:

The Lawyers Complaints Service

Phone: 0800 261 801

Website: www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form

Email: complaints@lawsociety.org.nz


STANDARD TERMS OF ENGAGEMENT

These Standard Terms of Engagement (“Terms”) apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing.

1. SERVICES

1.1 The services which we are to provide for you are outlined in our engagement letter.

2. FINANCIAL

2.1 Fees

(a) The fees which we will charge of the manner in which they will be arrived at, are set out in our engagement letter.

(b) If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our services. Work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and if requested, give you an estimate of the likely amount of the further costs.

(c) Where our fees are calculated on an hourly basis, the hourly rates are set out in our engagement letter. The differences in those rates reflect the experience and specialisation of our professional staff. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.

(d) Where we receive or hold funds on your behalf, you authorise us to deduct our fees from those funds.

2.2 Disbursements, Expenses and Administration Costs

In providing services we may incur disbursements or have to make payments to third parties on your behalf and incur administration office costs. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the disbursements, expenses or administration office costs, which we will be incurring on your behalf.

Where we receive or hold funds on your behalf, you authorise us to deduct any disbursements, expenses and administration costs from those funds.

2.3 GST (If Any)

Is payable by you on our fees and charges.

2.4 Invoices

We may send you interim invoices on a monthly basis depending on the type of work being undertaken on completion or on termination of our engagement. We will provide you with a final statement and invoice. If we should incur a significant expense on your behalf, we will forward an invoice.

2.5 Payment

Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us. We may require interest to be paid on any amount which is more than 7 days overdue. Interest will be calculated at the rate of 2% above our firm’s main trading Bank’s 90 day bill buy rate as at the close of business on the date payment became due.

2.6 Security

We may ask you to pre-pay accounts for us, or to provide security for our fees and expenses: You authorise us:

(a) to debit against amounts pre-paid by you; and

(b) to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.

2.7 Third Parties

Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, nevertheless you remain responsible for payment to us if the third party fails to pay us.

2.8 Debt Recovery

Should our invoice remain outstanding for more than three months from the date the invoice falls due for payment we may seek debt recovery action against you. Should this be required you will be liable for all costs incurred in relation to the recovery of the outstanding debt.

3. CONFIDENTIALITY

3.1 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:

(a) to the extent necessary or desirable to enable us to carry out your instructions; or

(b) to the extent required by law or by the Law Society’s Rules of Conduct and Client Care for Lawyers; or

(c) as directed by you.

3.2 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing legal services to you.

3.3 We will, of course, not disclose to you confidential information which we have in relation to any other client.

4. TERMINATION

4.1 You may terminate our retainer at any time.

4.2 We may terminate my retainer in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.

4.2 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.

5. RETENTION OF FILES AND DOCUMENTS

5.1 You authorise us (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) seven years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.

6. CONFLICTS OF INTEREST

6.1 We have procedures in place to identify and respond to conflicts of interests. 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.

7. DUTY OF CARE

7.1 Our duty of care is to you and not to any other person. If any other person wishes to rely on the advice given to us by you we must consent to that course of action. Before any other person may rely on my advice, we must expressly agree to this.

8. TRUST ACCOUNT

8.1 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 a Bank. In that case we may charge an administration fee of 1% of the interest derived.

9. GENERAL

9.1 These terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.

9.2 We are entitled to change these terms from time to time, in which case we will send you amended terms.

9.3 Our relationship with you is governed by New Zealand law and New Zealand Courts have exclusive jurisdiction.

CLIENT CARE INFORMATION

Set out below is the information required by the Rules of Conduct and Client Care for Lawyers of the New Zealand Law Society (“Law Society”).

1. FEES

The basis on which fees will be charged is set out in our letter of engagement. When payment of fees is to be made is set out in our Standard Terms of Engagement.

We may deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.

2. PROFESSIONAL INDEMNITY INSURANCE

We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.

3. LAWYERS’ FIDELITY FUND

The Law Society 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 $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.

4. COMPLAINTS

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

If you have a complaint about our services or charges, you may refer your complaint to Gemma Barden, the person in our firm who has overall responsibility for your work.

She may be contacted as follows:

• by letter;

• by email at gemma@bardenandco.nz;

• by telephoning her at (07) 863 7250.

If 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 the New Zealand Law Society’s Lawyer’s Complaint Service at 26 Waring Taylor Street, PO Box 5041, Wellington 6145 – Telephone 04-472-7837 or 0800-261-901 or Fax 04-473-7909.

The Law Society operates the Lawyers Complaints Service and you are able to make a complaint to that service. To do so, phone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.

5. PERSONS RESPONSIBLE FOR THE WORK

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

6. CLIENT CARE AND SERVICE

The Law Society client care and service information is set out below.

Whatever legal services your lawyer is providing, he or she 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.

7. LIMITATIONS ON EXTENT OF OUR OBLIGATIONS OR LIABILITY:

Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out in our letter of engagement.

TERMS OF ENGAGEMENT

Ready to work with us?

If you agree to the terms of engagement please fill in the form below. We look forward to working with you!