Terms of Engagement

Standard Terms of Engagement and Client Care

1. General

1.1 These Standard Terms of Engagement and Client Care (Terms) apply to all professional services provided by Pier Law (“us, we”) to our Client(s) (“you”). These Terms will apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Any different or amended terms must be agreed in writing.

1.2 These Terms are binding on you and any successor to your rights and obligations and together with the Letter of Engagement form a contract between you and us. You may not assign or transfer any rights under these Terms.

1.3 These Terms can be accepted by you by signing our Acceptance Slip in our Letter of Engagement, by telling us in writing that you accept our Terms, or by you continuing to work with us.

1.4 Unless you tell us otherwise, we can accept instructions from:

a. If you are a couple or multi-party client, from any one of you.

b. If you are a company, from any of the directors or any other person you have authorised to instruct us.

c. If you are a trust, from any of your trustees.

d. If you are a partnership, from any of your partners.

1.5 If we receive instructions from you in your capacity as a director or shareholder of a company or as a settlor or trustee of a trust or estate (or any other non-personal entity) then such instructions are accepted on the basis that you are at all times personally responsible as principal debtor for payment of our fees and disbursements and you personally indemnify us for the payment of our fees rendered to these entities.

1.6 Unless otherwise agreed by us in writing, you acknowledge that any legal advice which we give to you in relation to the engagement is:

a. For your sole benefit.

b. Given for the purpose that you instructed us.

c. Limited to the issues and circumstances stated in it.

d. Not applicable by implication to other matters.

e. Not to be published, quoted, or referred to in any public document.

f. Relevant on the date that it is given.

1.7 You agree that any legal advice given to you by an employee of our firm is given on behalf of our firm and not in their capacity as an individual and that no employee of our firm has any personal liability or special duty to you or anyone else in relation to any work carried out.

2. Services

2.1 The services we are to provide for you are outlined in our Letter of Engagement. You will receive a Letter of Engagement for every piece of work we carry out for you. Along with the services to be provided, this will also detail:

a. The staff member(s) who will be primarily responsible for your file and the staff member(s) who will have overall responsibility of your file.

b. Our estimated fees for the services or any other method used for the basis for calculation of our fees.

c. For conveyancing files, a brief outline of the Agreement for Sale and Purchase where appropriate.

2.2 In carrying out legal or other professional services for you, it is our duty to:

a. act with all reasonable care and skill and in a timely manner;

b. act upon your instructions and protect and promote your interests above all others subject only to any legal or ethical obligations we have;

c. discuss with you your objectives and how they should best be achieved;

d. provide you with information about the work to be completed, who will do it and the way the services will be provided;

e. charge you a fee that is fair and reasonable and let you know how and when you will be billed;

f. provide you with clear information and advice;

g. comply with all legal and ethical obligations we have to you;

h. protect your privacy and assure you confidentiality at all times;

i. treat you fairly, respectfully and without discrimination;

j. keep you informed of all significant developments and advise you when work is completed;

k. let you know how to make a complaint and deal with any complaint fairly and promptly.

2.3 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.

2.4 Where we are required to send documents via courier or New Zealand Post, these documents are transported at the courier or New Zealand Post’s sole responsibility. We are not liable for any loss or damage during transit. Further, we endeavour to send documents to you in plenty of time, but we cannot guarantee delivery dates when sending documents to you by this method.

3. Fees

3.1 The fees which we will charge or the manner in which they will be arrived at, are set out in our Letter of Engagement. They will be calculated in accordance with the guidelines set out by the New Zealand Law Society. When calculating the amount of any fee for your work, we take into account all relevant factors, including:

a. the time and labour expended;

b. the skill, specialised knowledge, and responsibility required to perform the services properly;

c. the importance of the matter to you and the results achieved;

d. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;

e. the degree of risk assumed by us in undertaking the services, including the amount or value of any property involved;

f. the complexity of the matter and the difficulty of novelty of the questions involved;

g. the experience, reputation, and ability of those lawyers providing services to you;

h. the possibility that the acceptance of the particular retainer will preclude engagement of our firm by other clients;

i. whether the fee is fixed or conditional (whether in litigation or otherwise);

j. any quote or estimate of fees given by us;

k. any fee agreement (including a conditional fee agreement) entered into between us;

l. the reasonable costs of running a practice;

m. the fee customarily charged in the market and locality for similar legal services.

3.2 If the Letter of Engagement specifies a fixed fee, we will charge this for the agreed scope of our services. Work which falls outside of that scope will be charged in accordance with term 3.1. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside of the agreed scope and if requested, give you an estimate of likely amount of the further costs.

3.3 Where time expended is used as a determinant of our fees, the time spent will be recorded in 6 minute intervals, with time rounded up to the next unit of 6 minutes. The rate at which this is charged is outlined in our Letter of Engagement. The differences in those rates reflect the experience and specialisation of our professional staff.

3.4 If the Letter of Engagement specifies an estimate of fees, this is a guide price only and is not a quotation, nor a cap on what may be charged. However, if our fees are expected to be in excess of the estimate given at any time during the engagement, we will advise you of this as soon as reasonably practicable to gain your approval to continue work. In certain circumstances, we may need to undertake additional work in order to complete your instructions, but have been unable to obtain your pre-approval. In these instances we shall explain the reason for the increase in fees in our reporting letter to you.

3.5 In providing services we may charge you for any amounts billed to us by third parties (“disbursements”). These may include legal forms, bank charges, real estate agents fees, courier fees, AML Compliance Fees from APLYiD or Centrix, fees associated with Land Information New Zealand or the Companies Office, council fees, travel expenses, and the fees of any agents, experts and other professionals we appoint. This list is an example only and is not exhaustive. We may request payment of disbursements in advance. Where you have asked us to instruct counsel from outside our firm, then you must, on demand, pay us the fees for which that counsel bills us. A sundry administration fee will be charged in addition to our fee and this covers costs such as photocopying, forms, postage, file storage, and stationery.

3.6 If you ask us to do your work urgently, we will tell you whether this is possible or necessary. Doing work urgently may mean allocating additional team members and/or resources and because of that, our charges may increase. In exceptional cases, we may treat your work as urgent without advising you, if it is in your best interest. You will be charged accordingly.

3.7 Our invoices contain simple explanations of the work undertaken, which we have found most clients prefer. We can, however, provide more detailed invoices if required on an individual request basis.

3.8 Fees, hourly rates, sundry administration fee and disbursements may change from time to time without notice.

3.9 GST (if any) is payable by you on our fees and charges.

3.10 In some cases, you may be eligible for legal aid. If you want to apply for legal aid for an area of law we do not have expertise in, we may refer you to another firm.

4. Terms of Payment

4.1 If you have difficulty in meeting any of our invoices, please contact us promptly so that we may discuss payment arrangements.

4.2 Invoices are generally payable within 14 days of the date of the invoice (the “due date”), unless alternative arrangements have been made with us. We reserve the right to issue interim invoices based on work in progress. Otherwise, we will issue an invoice at the conclusion of a matter.

4.3 For some work types, we may find it necessary to ask you to pay our fees, disbursements and sundry administration fees up front. If this applies to work we are completing for you, we will communicate this with you.

4.4 By accepting our engagement, you give us permission to deduct fees from monies held on your behalf. An invoice shall be sent or handed to you on the day of deduction or immediately thereafter.

4.5 If an invoice is unpaid after the due date (“overdue”), we reserve the right to suspend our services until the invoice is paid in full, to require payment for future fees in advance, to retain your papers and files and any other property belonging to you that is in our possession, and to terminate the relationship.

4.6 Unless otherwise agreed, if an invoice is more than 14 days overdue, we may require interest to be paid on the outstanding amount. Interest will be calculated at 2% per month. Should it become necessary to issue cost recovery proceedings, the costs associated with this procedure including collection and location (if necessary) costs will be added to the amount owed and will be payable by you.

4.7 Pier Law accepts payment of invoices by cash, credit card, direct credit or via our website. Invoices that are outstanding are issued with a remittance slip to assist with payment.

4.8 For any payments made through our website, these are processed securely by a secure payment system and transaction fees may be added to your payment.

4.9 We may ask you to pre-pay amounts to 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 a dated invoice.

4.10 Although you may be expected 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 in full by the due date.

4.11 When we receive payment from you in respect of fees, this payment will be applied to the oldest amount outstanding in the first instance.

5. Files and Documents

5.1 We will endeavour to store your file, including any documents belonging to you (subject to term 5.3), for 10 years (or as recommended by the New Zealand Law Society) following completion of our engagement. This does not include original documents that we have agreed to keep in safe custody, such as Wills, Powers of Attorney, trust deeds and leases (this list is an example only and is not exhaustive).

5.2 We may send your files and documents to a reputable secure document storage company in which case the documents will be held subject to our agent’s terms and conditions of service. While all reasonable care will be taken, neither we nor our agent will have any liability (direct or indirect) in relation to the provision of this service.

5.3 You grant us permission to destroy your file and all documents belonging to you after 10 years, or earlier if we have converted those files and documents to an electronic format. The destroying of your files will be done in a confidential manner.

5.4 Pier Law owns copyright to all documents or works it creates in the course of the provision of legal or other professional services to you. You are granted a licence to use and copy the documents for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use our documents without our written permission.

5.5 We reserve the right to exercise a general lien and retain all documents held on your behalf for as long as there are any fees or other monies outstanding to us. If there are no amounts outstanding, we will provide all documents held on your behalf to you upon request.

5.6 An uplift fee may be payable upon uplift of your documents or part thereof. We may provide you with copies or originals of our documents at our sole discretion.

5.7 You grant us permission to make copies of your documents and hold them as our property for an indefinite time period for the sole purpose of our protection in the event of a legal claim.

5.8 For the sake of clarity, drafts of a final document remain the property of Pier Law.

5.9 Should you require to have your file retrieved a retrieval fee will be payable by you and should you wish to take possession of the file at any time prior to expiration of the storage period, the reasonable scanning/photocopying costs of duplicating your file will be payable by you as well as any fees outstanding by you.

6. Privacy / Confidentiality

6.1 In order for us to provide services to you, and as part of our continuing effort to improve the services we offer, we maintain a database of client information. From time to time we may request that you confirm the accuracy of the information we hold about you. Such information will be used by us, our staff and agents for the purposes of acting on your behalf. Failure to provide this information may hinder or prevent us from providing our services to you.

6.2 It may be necessary to obtain information on your behalf from third parties. One common instance is the confirmation of local council rate details in conveyancing matters.

6.3 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;

b. Where you have requested or consented to disclosure;

c. As necessary to protect our interests in respect of any complaint or dispute; or

d. To the extent required by law or by the New Zealand Law Society’s Rules of Conduct and Client Care for Lawyers.

6.4 Notwithstanding term 6.3, information you have provided us may be used to assist in the collection of your overdue account and we may obtain from and give to any third party (including credit agencies) information which will assist us to obtain payment of the outstanding debt.

6.5 We will sometimes need to collect, use, and disclose personal information about you and/or employees, directors, or other people and/or entities associated with you or with your transactions (including any principals or beneficiaries for whom or for whose benefit you are acting) to carry out your instructions. Please make sure that these people are aware that our acting for you may involve collecting, using and disclosing personal information about them.

6.6 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.

6.7 Our staff sign a confidentiality clause that forms part of their Employment Agreement meaning that any information relating to you will not be disclosed to anyone outside the firm except, so far as necessary, to further your interests.

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

6.9 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere. You have the right to access and correct this information. If you require access, please contact the Practice Manager.

7. Conflicts of Interest

7.1 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. In particular we will:

a. advise the clients involved of the conflict or potential conflict;

b. advise the clients involved that they should take independent advice and arrange that advice if required; and

c. decline to act further for any client in the matter where to continue would, or would be likely to disadvantage any of the clients involved.

7.2 We may accept instructions from other clients or potential clients working in the same or competing markets and whose commercial interests conflict with yours.

7.3 Subject to the Conduct Rules, we may also act, or have previously acted, for other clients (or potential clients) who are parties (or potential parties) to a transaction or other matter in which you are involved, or whose interests are adverse to your own. If we agree to act in such a role:

a. we will operate appropriate information barriers to protect client interests and comply with relevant laws and codes of professional practice; and

b. we will have no obligation to disclose to you any information we have about another client or its affairs or to use that information to your benefit.

7.4 Subject to the Conduct Rules, you consent to us not disclosing to you any information we hold for any other client.

8. Duty of Care

8.1 Our duty of care is owed to you and not to any other person. Nobody except you may rely on our advice without our written consent.

8.2 Our advice is opinion only, based on the facts known to us at the time the advice was given and on our professional judgement, and is subject to any changes in the law, best practice and industry standards after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by third parties.

8.3 Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.

9. Email Communication

9.1 We may communicate with you by email while acting for you. Please let us know if you prefer us not to send you emails.

9.2 Our incoming email messages are scanned for content and viruses and are cleared by our email security system. On rare occasions a legitimate email may be deleted before its intended recipient at our firm reads it.

9.3 Emails are not always secure and may be read, copied, interfered with, or impaired in transit, you agree to assume the risks with such transmission and to release us from any claim you may have arising from transmission defects. Transmission defects include the non-receipt by you of any email communication.

10. External Information and Public Records

10.1 We often obtain and rely on external information (e.g. from your accountant) or public records (e.g. from a government agency or registry) to carry out your instructions. We rely on this information being accurate, complete and up-to-date. We do not accept responsibility to investigate or verify external information or public records and will not be liable for any damage or loss caused by errors or omissions in them.

11. Residential Land Withholding Tax

11.1 If you sell residential land and we receive the sale proceeds on your behalf, we may be legally required to withhold residential land withholding tax (RLWT) from the proceeds.

11.2 This will apply if, under the Income Tax Act 2007:

a. You are an “offshore RLWT person”;

b. The land is “residential land” in New Zealand; and

c. You sell the land within the “bright-line” period.

11.3 In this event, we must remit the RLWT to the Inland Revenue Department (IRD). We will account to you for the net sale proceeds only, after withholding RLWT and any other amounts we are permitted to deduct (including our fees).

11.4 You must provide us with all the information we need to determine whether you are liable for RLWT and (if so) for how much. This includes both the information the Tax Administration Act 1994 requires you to provide and any other information we reasonably request. If you do not give us this information, we may assume that RLWT applies and withhold it.

11.5 We have no liability to you or in relation to any amount we withhold and remit to IRD as RLWT.

12. AML / CFT / FATCA / AEOI / CRS

12.1 We are required to comply with all laws binding on us in all applicable jurisdictions, including:

a. the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act);

b. the United States Foreign Account Tax Compliance Act, and relevant provisions of the Tax Administration Act 1994 (together, FATCA); and

c. the Automatic Exchange of Information and the Common Reporting Standard (AEOI / CRS).

12.2 We will perform customer due diligence and account monitoring, keep records, and report any unusual or suspicious transactions where required by the AML/CFT Act, FATCA, AEOI/CRS or any other law.

12.3 We may also be required to assist any bank or other entity with whom we transact as your agent, or with whom we deposit money on trust for you, to comply with that entity’s legal obligations in any jurisdiction.

12.4 We will periodically advise you what information and documents are required for these purposes. These may relate to you, any other relevant person or entity (e.g. beneficial owner), the source of funds, the transaction, the ownership structure, tax identification details, and any other relevant matter. Any delay in providing this information will hinder the progression of your transaction. We may retain the information and documents, provide them to a bank or other entity (where applicable) to deal with in accordance with their terms, and disclose them to any law enforcement or regulatory agency or court as required by law.

12.5 In order to comply with the AML/CFT Act, in some situations we may need to conduct a search on APLYiD or Centrix to complete the verification of your identity and/or address where we hold insufficient information. The cost of these searches will be passed on to you as a disbursement on your invoice, as detailed in clause 3.5.

12.6 We or the bank or other entity (as the case may be) may:

a. Suspend, terminate, or refuse to enter into a business relationship;

b. Delay, block or refuse to process a transaction (including by refusing to handle and deposit money on trust for you); and

c. Report a transaction

without notice if:

a. The required information or documents are not provided; or

b. It is suspected that the business relationship or transaction is contrary to our AML policies, may breach any applicable law, or may otherwise relate to conduct that is illegal or unlawful in any country.

13. Termination of Services

13.1 You may terminate our engagement at any time by written notice to us.

13.2 We may elect to discontinue your work if you fail to pay our invoices when due, if you fail to provide us with adequate instructions, if (in our reasonable opinion) our relationship has broken down, or if we are legally or otherwise obliged to do so. Other conditions for termination are set out in the Law Society’s Rules of Conduct and Client Care for Lawyers. If we take this action, we will give you notice of our termination of our services, and of the grounds on which any such notice is based.

13.3 If either party terminate the engagement, you will still be required to pay all fees outstanding up to the date of termination and all disbursements and office expenses incurred up to that date.

14. Feedback and Complaints

14.1 Client satisfaction is one of our primary objectives and feedback from clients is helpful to us. If you would like to comment on any aspect of the service provided by us, including how we can improve our service, please contact the Practice Manager, Stephanie Herbison.

14.2 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 concern or complaint about our services or charges, you may refer your complaint to the staff member or the person in our firm who has overall responsibility for your work. 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 Practice Manager, Stephanie Herbison, who will coordinate an investigation into your complaint.

You may contact Stephanie Herbison as follows:

By post at PO Box 76134, Christchurch 8548;
By email at info@pierlaw.co.nz; or
By telephone at +64 3 366 5540.

14.3 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.

15. Claims / Limitations of Liability

15.1 Any claim you have against us must be filed within two years of the date of the act or omission on which the claim is based. Otherwise, the claim cannot be filed and we will have no liability for that act or omission or for its consequences (to the extent permitted by law).

15.2 In these terms, “claim” and “the date of the act or omission on which the claim is based” have the same meanings as in the Limitation Act 2010.

15.3 This time limit overrides the time periods under that Act, and applies regardless of when any fact relevant to the claim was first discovered or able to be discovered.

15.4 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.

16. Marketing

16.1 As a client of Pier Law we hold private information and contact details for you. We shall have the right to send to you electronically or by any other means marketing material and newsletters regarding the services and promotions we offer. You are able to unsubscribe at any time from this service.

17. Trust Account

17.1 We maintain a trust account for all funds which we receive from clients (except monies for payment of our invoices). Money received by you or on your behalf may be held to your credit in the trust account. Payments out of the trust account will be made to you or to others with your authority (or if we are acting for more than one of you, from all of you).

17.2 A full record of the Pier Law trust account is kept at all times. A statement of trust transactions detailing funds received and payments made on your behalf will usually be provided at the commencement of a matter or at any time upon your request.

17.3 If you request a payment from our trust account to be made by direct credit to your account, we will require evidence of the account number in one of the following forms:

a. Original deposit slip;

b. Original signed authority

c. Original bank statement;

d. Original letter or print out from your bank; or

e. Copy of any of the above.

Please note that if we receive a copy of the above by email we will need to phone you on or near the day of payment to confirm the account details with you. Because of audit requirements, text messages and bank account numbers typed in the body of emails are insufficient as evidence of your account number.

17.4 If we are holding significant funds on your behalf we may lodge those funds on interest bearing deposit with a bank. In that case all interest will be owed to you, and is subject to our administration fee of 5% and applicable resident withholding tax (RWT) deductions. The current default rate of deduction is 45%, but you can select an alternate rate by providing us with your IRD number and the rate you wish to have applied at the commencement of the engagement.

17.5 We will not be able to place any funds on interest bearing deposit through our Trust Account without you first completing a foreign tax information form as a requirement under the Automatic Exchange of Information/Common Reporting Standards (AEOI/CRS) regime. We will supply you with such forms when required.

17.6 When we hold funds on deposit on your behalf we will be required to pass on that information to the Inland Revenue Department or our bank under the AEOI/CRS regime.

17.7 Where you transfer funds to our Trust Account or where we pay funds to you in a foreign currency, those funds are converted into New Zealand dollars at the prevailing exchange rate offered by the bank. We are not responsible for seeking or obtaining a better exchange rate.

17.8 For transactions where payment of money is due by you, we require cleared and non-reversible funds for the correct amount to be deposited no later than the morning of settlement. Proof of deposit must be supplied.

17.9 If we hold any funds in credit in our Trust Account that remain for a period of 3 months or more after your matter is completed and these funds belong to you, we will generally make reasonable efforts to locate you to arrange the amount to be paid to you. We may deduct our reasonable costs of trying to locate you to pay residual monies held in credit.

a. For an individual, amounts of $20 or over will be refunded to you, or, where your contact details or bank account details are not available, credited to the Inland Revenue Department’s unclaimed monies account within a period of 6 months after the completion of your matter.

b. For a company, amounts of $20 or over will be refunded to the company, or, where the company contact details or bank account details are not available, credited to the Public Trust CSC Accounting Department’s unclaimed monies account within a period of 6 months after the completion of the matter.

c. However, we may not attempt to locate you if (a) the amount is small (under $20), and (b) it is not economic for us to try to locate you; and (c) we are not holding current contact details for you. In these circumstances, you authorise us to pay the residual monies to a charity of our choice.

18. Professional Indemnity Insurance

18.1 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.

19. Lawyers Fidelity Fund

19.1 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 $100,000.00. 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.

20. Scope of Work

20.1 We will provide you with professional advice in relation to your legal rights and obligations. We do not provide investment, tax, accounting or other financial advice and we do not advise on the business aspects of any decision or action by you.

21. Governing Law

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