Terms of Engagement
These Terms of Engagement (“Terms”) set out the basis of our professional relationship with you and will apply every time you instruct us to act for you, unless we agree (in writing) to vary them.
In these Terms, “we” and “us” means Goodwin Turner Lawyers Limited. “You” means our client as identified as such in our letter of engagement or as otherwise agreed. We may vary these Terms from time to time and will publish the latest version on our website (www.goodwinturner.co.nz). If you continue to engage us, then you accept the latest Terms.
Scope of our Role
We will represent and advise you on legal matters in accordance with your instructions, as described in our letter of engagement, along with any further instructions that you provide to us in writing (or that we record in writing). If you are expecting, or would like us to perform other services, it is important that you let us know.
In addition to the people primarily responsible for supervising or completing your work, other staff with suitable skills and experience may also perform work on your behalf. Utilising these other staff helps us ensure deadlines are met, and to minimise your costs.
We do not provide accounting or tax advice, and are not responsible for the impact of our advice on your accountancy and/or tax affairs. It is important that you take separate advice as necessary regarding accountancy and/or tax matters.
We are only qualified to advise on New Zealand law. If we assist you in respect of matters governed by foreign law, we do so on the basis that we do not accept any responsibility in relation to your legal position under that foreign law.
Duty of Care
Our duty of care is to you and not to any other person. You must not disclose or distribute our advice to any other person (other than your advisors or as may be required by law), and no such person may rely on our advice, without our prior written consent. When you are a company or other entity, we act only for you. We do not act for your shareholders, directors, agents or members unless we expressly agree otherwise.
Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law 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.
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 matter unless you specifically engage us in respect of those related or other matters.
Our Fees and other costs you may be charged
Fees: The basis upon which we will charge our fees is set out in our letter of engagement.
- If the letter of engagement specifies a fixed fee, we will charge this for the agreed scope of the 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 of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
- Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work will be set out in our letter of engagement. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff. Time spent is recorded in six-minute modules.
- Hourly rates may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value and importance of the services. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Rules of Conduct”).
Estimates: To give you greater certainty about likely costs, we may be able to provide you with a fee estimate and if requested can report to you on progress against such estimates. In some circumstances, it may be possible to provide a fixed quote.
If we provide any estimate or quote, we do so subject to the following assumptions:
- your instructions are complete and accurately describe our role;
- the matter will proceed and be completed in the manner anticipated in your instructions and within any indicated, or a normal, timeframe;
- you will provide any information or instructions we require to do our work in a timely and efficient manner;
- no unforeseen impediments will arise and require additional work;
- all parties and other advisers involved in the matter will be co-operative and will not be unreasonable; and
- any third party or regulatory consents or approvals will be given in a timely manner and will not involve protracted negotiations.
Unless specified, GST and disbursements are excluded from any estimate or quotation. Any breakdown of costs we provide to support our estimate or quotation is indicative only and we can adjust any component of such breakdown.
Disbursements and third party expenses: In providing the services we may incur disbursements and payments to third parties on your behalf and you authorise us to incur these disbursements (such as AML verification fees, webform charges, filing/registration fees, search costs and courier charges), which are reasonably necessary to provide the services. Where we know that any significant costs will be incurred, we will take reasonable steps (where time permits) to let you know in advance, and may require you to prepay those amounts to us or provide us with security for those costs. You authorise us to draw on any such funds as the relevant fees/expenses become due.
Invoicing: Regular billing gives both you and us better ability to manage costs of legal work. Unless the matter is likely to be resolved quickly, we will send you interim invoices. These will usually be sent monthly or on the completion of a matter, and are payable within 14 days of receipt unless alternative arrangements have been made with us. Where we do not receive payment by that date, we may do any or all of the following:
- cease to do any further work for you;
- retain your papers and any of your property we have in our possession; and
- charge you interest at the rate of 5% per annum above our principal banker’s usual lending rate, compounding monthly.
You are also liable for any costs we incur in collecting any unpaid amounts from you.
Where we have an arrangement with you that we will address the invoice to another person, you will remain responsible for payment of that invoice if it is not paid by the other party. Similarly, you remain liable for our costs regardless of whether you expect to be, or are, reimbursed by another party.
GST and currency: Our invoices will include any New Zealand Goods and Services Tax (GST) applicable to our supply of services to you. All invoiced amounts are payable in New Zealand dollars, unless we agree otherwise.
Deductions: You authorise us to deduct any fee, expense or disbursement for which we have provided you with an invoice, from any funds held in our trust account on your behalf except where we receive the funds from you for a special purpose (other than as security for our fees) and they remain in our trust account for that special purpose.
Administration fee on deposited funds: Where monies are held in our trust account on deposit for you, we may charge an administration fee of up to 5% of the gross interest earned.
Client confidentiality is essential to us. We will not disclose any confidential information obtained from you to any other person, and will not disclose to you any confidential information received from another client or prospective client, except to the extent necessary to enable us to carry out your instructions, as expressly or impliedly agreed by you, as necessary to protect our interest in respect of any complaint or dispute, or as required by law or by the Rules of Conduct.
We are required 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 continue acting, for you until this is completed. We use a specialist third party service provider, to assist us with these obligations and the fee will be dependent on the type of entity and the number of verifications involved.
To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to government agencies. There may be circumstances where we are not able to tell you or such persons if we do provide information.
Please ensure that you and/or any of the persons described previously, are aware of and consent to this. It is important to ensure that all information provided to us is accurate. If the information is not provided or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.
Conflicts of Interest
We have procedures for dealing with situations where the interests of two or more clients may conflict. If a conflict of interest or potential conflict of interest arises, we will consult with you about the best way to resolve the matter. In some circumstances we may be able to act for other clients whose commercial or legal interests differ from yours. However, 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 and there is a real risk that the personnel within our firm who would act for that other client would obtain that information.Electronic Services and Communication
Written communications with you will usually be by email, unless you advise us that you prefer not to receive emails.
Where we provide any electronic service to you, or communicate with you by electronic means, we will take every reasonable precaution to ensure that those services and communications are accurate, reliable, complete, confidential and secure. However, certain risks exist that are outside our control. Consequently, we cannot and do not represent or warrant that those services and communications will always be accurate, reliable, complete, confidential and/or secure. We also exclude all warranties to the extent permitted by law.
You agree that we may provide you from time to time with other information that may be relevant to you by electronic means, such as newsletters and information bulletins. At any time you may request to be removed from such electronic mailing lists.
Over the course of our engagement with you we may collect and hold personal information about you. Under the Privacy Act 2020 you have the right of access to, and correction of, your personal information held by us. We will comply with the requirements of the Privacy Act 2020 at all times.
Subject to the above, you authorise us to disclose, in the normal course of acting on your instructions in relation to this matter, such personal information to third parties for the purposes of providing the services, verifying your identity and any other purposes set out in these Terms.
We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or debt collection processes if it is reasonable to do so.
We retain all ownership rights in all intellectual property of any kind created by us for you. You will however, subject to payment of our fees, be entitled to use the documents as our non-exclusive licensee for the purposes they were produced. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
Document Destruction and File Uplifts
Document destruction: We retain the files on each matter, and any documents you leave with us (other than original documents we hold for safekeeping) for 7 years from the date a file is closed. We may then (or earlier if we have made electronic copies) destroy those files and documents. Any such destruction will be done in a confidential manner.
File uplifts: If you uplift your files or other documents at any time, we may (a) require that any/all accounts with us are paid in full, and (b) make copies of that material (at your cost) before you collect it.
Reliance on external information and public records: Where we obtain and rely upon information from your other advisors (such as your accountant) or from public records (such as an official registry), we are not liable for any errors or omissions in such information.
Contracting entity: All services provided to you are provided by Goodwin Turner Lawyers Limited (“GTLL“). The principals of GTLL (Scott Goodwin and Paul Turner) are shareholders and directors of GTLL, but are not in partnership. Except to the extent set out in the Lawyers and Conveyancers Act 2006, Scott and Paul are not personally liable to you for any act or omission of GTLL, and neither principal is liable to you for the acts or omissions of the other principal.
Limitation of Liability: To the extent permitted by law, our total liability to you in connection with any matter (or series of related matters) on which you engage us, will not exceed:
- any amount available to be paid out to you for that liability under our relevant insurance policies, up to a maximum of NZ$3,000,000 (including interest and costs), or
- an amount equal to five times our paid fees (excluding disbursements and GST) on the relevant matter where there is no amount available to be paid out to you for that liability under our relevant insurance policies.
This limitation applies to liability of all kinds, whether in contract, tort, equity or otherwise. We may override this limitation where it is specifically agreed with you in an engagement letter signed by us.
You may not revoke any instruction to us if we have already relied on that instruction (for example, by giving an undertaking to a third party), but you may otherwise end our engagement at any time on any matter or matters. We may terminate our engagement in any of the circumstances set out in the Rules of Conduct.
If our engagement is terminated, these terms continue to apply in respect of your instructions, and you must pay us all fees, disbursements and expenses incurred up to the time of termination.
Law, Jurisdiction and Assignment
These terms of engagement and any other agreement we have with you are governed by New Zealand law and are subject to the exclusive jurisdiction of the New Zealand courts. You may not transfer or assign your rights or obligations under these terms or in relation to any services we are engaged to provide.
9th August 2021