Terms of Engagement - Southern Response Payment Package Services

YOU + US: STANDARD TERMS FOR SOUTHERN RESPONSE PAYMENT PACKAGE SERVICES

  1. These terms (Terms) apply to our work for you. As these Terms form part of our contract with you, if you disagree with any of them, you need to let us know immediately. Otherwise we will take your continued instructions as acceptance of these Terms. We may change these Terms if or when you next engage us to work for you.
  2. We also refer you to our YOU + US Engagement email (Engagement), which contains any additional terms we have agreed with you, such as the scope of our work for you.
  3. Our relationship with you is governed by New Zealand law and New Zealand Courts have exclusive jurisdiction.

Client care and service

  1. We act according to the requirements of the New Zealand Law Society (Law Society) and we are obliged to tell you that whatever legal services your lawyer is providing, they must:
    1. act competently, in a timely way, and in accordance with instructions received and arrangements made;
    2. protect and promote your interests and act for you free from compromising influences or loyalties;
    3. discuss with you your objectives and how they should best be achieved;
    4. provide you with information about the work to be done, who will do it and the way the services will be provided;
    5. charge you a fee that is fair and reasonable and let you know how and when you will be billed;
    6. give you clear information and advice;
    7. protect your privacy and ensure appropriate confidentiality;
    8. treat you fairly, respectfully and without discrimination;
    9. keep you informed about the work being done and advise you when it is completed; and
    10. let you know how to make a complaint and deal with any complaint promptly and fairly.
  2. The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers (Rules). 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.

Confidentiality

  1. We will hold in confidence all information concerning you or your affairs that we acquire while working for you. We will only disclose confidential information if it is necessary or desirable to enable us to carry out your instructions or required by law.
  2. We may provide any information we hold relating to any Foreign Account Tax Compliance Act (FATCA) or OECD Common Reporting Standard (CRS) matters, to the Inland Revenue Department and to our institutional banks if they request information to be able to meet their FATCA or CRS obligations.

Privacy

  1. In your dealings with us we will collect and hold personal information about you.
    1. If you are an organisation this may include collecting and holding personal information about your personnel. We may also source information from publicly available sources. We will use that information to undertake our business, carry out the Engagement, make contact with you in the future about issues we believe will be of interest to you and to comply with our legal obligations. Failure to provide information we request (including information requested under clause 15 may prevent or hinder us from starting the engagement, or providing our services to our customary standards, or at all.
    2. We may disclose your name and address to a credit agency to perform a credit reference or to undertake credit management processes if we deem it necessary to do so.
    3. Subject to our legal and ethical obligations to maintain client/lawyer confidentiality at all times you authorise us to disclose, in the normal course of performing the Engagement, such personal information to third parties for the purposes mentioned in clauses 8.a and 8.b above.
    4. The information we collect and hold about you will be kept at our offices and/or at files storage sites elsewhere in New Zealand. We may also use service providers who store (on our behalf) the information overseas and information may be stored electronically. We use such security safeguards as are reasonable in the circumstances to protect it. Our address, as the person that collects and holds the information is Level 3, 329 Durham Street, Christchurch, New Zealand or Level 1, 62 Cass Street, Ashburton, New Zealand.
    5. If you are an individual you have the right to access and correct this information as set out in the Privacy Act 2020. If you require access, please contact Kirsten Todd at the details set out in clause 34.

Files and documents

  1. We retain all files and any documents electronically for at least seven years after completion of the matter. We may destroy any physical files held any time after that. Deeds such as Wills, Trust Deeds, and Powers of Attorney are stored in our Deeds’ Room permanently, or until you uplift them.
  2. If you give us a paper document, or we receive one on your behalf, you authorise us 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.

Ethical Duties

  1. We take steps to ensure that no conflict of interest arises between clients for whom we are engaged. On the rare occasions that a conflict or potential conflict does arise, we will follow the Rules. In particular we will:
    1. advise the clients involved of the conflict or potential conflict.
    2. advise the clients involved that they should take independent advice and arrange that advice if required; and
    3. decline to act further for any client in the matter where to continue to act would, or would be likely to disadvantage any of the clients involved.
  1. Our relationship is one involving a very high degree of trust and confidence between us. Either you or we may terminate the engagement at any time if either of us believes that relationship has been undermined for any reason.
  2. We may also stop work on a matter or terminate the engagement if required by law to do so, including, without limitation, if required to do so under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

Anti-Money Laundering and Countering Financing of Terrorism

  1. We may ask you and others associated with you for information that enables us to meet our obligations under anti-money laundering and countering financing of terrorism laws (including personal information and in some circumstances, information relating to the source of your funds or wealth). If you cannot or do not provide us with the information we request we may not be able to act or continue to act for you.
  2. We may use a third party service provider (such as Centrix or Aply ID) to verify the accuracy of the information you provide to us. We will ensure that our service provider is subject to terms that require them to treat your information strictly confidential.

Limitations on our obligations or liability

  1. You agree that our liability is limited as follows:
    1. where we have to obtain and rely on external information or public records we do not accept any liability for direct or indirect loss caused by errors or omissions in such information;
    2. the liability of our firm and all staff within our firm, howsoever arising shall be limited to the sum of $1,500,000 in aggregate in respect of each matter upon which we have accepted your instructions to act;
    3. our firm and all staff within our firm will not be liable to you for any loss of revenue or income, loss of profits, loss of opportunity or any indirect or consequential loss of whatsoever nature;
    4. our advice is given only for your benefit and in your interest. It is not to be relied on by third parties unless we agree in writing;
    5. we do not accept liability for loss arising from non-receipt of any communication, including emails;
    6. we do not accept liability for loss arising from cybercrime, including but not limited to the hacking of emails and/or tampering with bank account details; and
    7. we do not give investment advice. Such advice should be obtained from a properly qualified financial adviser or financial advice provider in terms of the Financial Markets Conduct Act 2013.

Fees and other charges

  1. You are engaging us to advise you on your entitlement to a further cash settlement payment from Southern Response Earthquake Services Limited (Southern Response), where you settled your earthquake insurance claim with Southern Response before 1 October 2014 (the retainer).
  2. We will charge you a fixed fee of $2,000 plus GST (including disbursements and office administration fees) for our services under the retainer. However, we are entitled to review this fixed fee in any of the following circumstances, and we will contact you if these circumstances apply and discuss updated terms of engagement and costs with you:
    1. we cannot resolve your claim and entitlement for a settlement package through correspondence with Southern Response;
    2. you wish to engage in litigation against Southern Response over your claim and entitlement for a settlement package from Southern Response;
    3. you wish to seek amounts that fall outside of the compensation package required of Southern Response as a result of the litigation in Dodds v Southern Response Earthquake Services Limited.
    4. you wish to re-open or re-litigate any previous settlement agreement with Southern Response;
    5. you wish to instruct us in matters not directly connected to the Southern Response settlement package; or
    6. you wish to challenge Southern Response’s assessment that you are not eligible for a settlement package.
    7. Any other circumstance of which we were not aware and was not disclosed to us which has the effect of significantly increasing our time and expenses in order to complete our retainer and obtain a Southern Response settlement package for you.
  1. Where we are instructed to carry out work beyond the scope of our original retainer (at paragraph 18), or if any of the circumstances in paragraph 19 apply, our fee will take into account the following factors:
    1. the skill, specialised knowledge and responsibility required to perform the services properly;
    2. the importance of the matter to the client and the results achieved;
    3. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client;
    4. the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved;
    5. the complexity of the matter and the difficulty or novelty of the questions involved;
    6. the experience, reputation, and ability of the lawyer;
    7. the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients;
    8. whether the fee is fixed or conditional (whether in litigation or otherwise);
    9. any quote or estimate of fees given by the lawyer;
    10. any fee agreement (including a conditional fee agreement) entered into between the lawyer and client;
    11. the reasonable costs of running a practice; and
    12. the fee customarily charged in the market and locality for similar legal services.
  1. The disbursements included in our fixed fee comprise registration and filing costs, court charges, fees of other professionals, travel expenses, and larger one-off administrative costs including support staff time for large file management or copying services. We may obtain funds from you in advance for significant disbursements.
  2. A general office administration fee of $150 is included in our fixed fee. This fee covers minor photocopying, facsimiles, routine telephone communications, deliveries, routine online searches and enquiries of a similar nature.
  3. GST (if any) is payable on all professional fees. Administration charges and disbursements are inclusive of GST.
  4. We expect that Southern Response will contribute up to $2,000 towards your fees and expenses (although we cannot guarantee this at the time of engagement). Because our legal retainer is with you and even though we may, at your request or with your approval, direct our invoice to that third party, you nevertheless remain responsible for payment if Southern Response does not pay us.
  5. We will issue our invoice for our fee on completion of your claim with Southern Response for the additional settlement package.
  6. Our accounts are payable on receipt. If an account is not paid promptly, we may elect:
    1. not to do any further work and to retain custody of your files and documents, until all accounts are paid in full; and
    2. to charge interest at up to 1.5% per month on any outstanding amount, one month after the date of the account; and
    3. to take action to recover the debt and all costs we incur in doing so, including interest and third party debt recovery costs are payable by you.
  1. You authorise us to deduct our costs if we receive or hold money in our trust account on your behalf, before paying the balance to you.
  2. If you are not eligible for compensation from Southern Response under the settlement package, we will not charge you any fee, however you will need to pay any disbursements, we have incurred on your behalf.

Litigation

  1. If your matter is litigious it may be desirable to engage the services of a barrister to provide expert counsel and/or to appear in the Court proceedings. If we do so, we may ask you to enter into a separate fee agreement directly with that barrister. If you are successful in obtaining an order for costs payable by other parties in the litigation, it will most likely be for an amount substantially less than the costs payable under this agreement and/or any separate agreement with a barrister. If so, that will not affect your obligation to pay us. It is also possible that the Court may make an order that you pay (part of) another party’s costs. Those costs would be in addition to those payable to us under this agreement.

Trust account

  1. We operate a trust account. All money received by you or on your behalf will 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.
    1. A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided at any time upon your request.
    2. If we are holding funds on your behalf, we will lodge them on interest-bearing deposit with a trading bank only where it is practical to do so having regard to the amount involved, the amount of interest likely to be earned, our costs of administration, and where you have completed to our bank’s satisfaction any request for information relating to the deposit. Where funds are placed on interest-bearing deposit, we charge an administration fee of 5% of the gross interest earned, which will be deducted from that gross interest.
    3. In accordance with the Lawyers and Conveyancers Act 2006, moneys held in our trust account which are not held on call or term deposit will not earn you interest.
    4. If you request a payment from our trust account to be made by direct credit to your account, you will provide to us such information or documents as we reasonably require to make the payment, these may include:
      1. bank deposit slip.
      2. email from you confirming bank account number.
      3. copy of your bank statement.
      4. instructions from your bank.
    5. We will verify the bank account number for all payments over $10,000. Where we have made payment to that bank account before, we may rely on prior verification.

Key dates

  1. It is up to you to ensure you do not overlook ongoing key dates that fall after our work for you is completed.

Professional indemnity insurance and Lawyers’ Fidelity Fund

  1. We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. The Society’s Lawyers Fidelity Fund provides clients of lawyers with protection against monetary loss arising from theft by lawyers. The maximum compensation amount payable by the Fidelity Fund to an individual claimant is $100,000.00. Except as 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.

Termination

  1. We may terminate our engagement if you do not pay our fees when due. We may otherwise terminate our engagement in any of the circumstances set out in the Law Society’s Rules. If our engagement is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.

Complaints

  1. We seek to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges please refer it to either the Partner who has overall responsibility for your work; or Kirsten Todd. Kirsten is a Partner of the firm and may be contacted by letter (PO Box 442, Christchurch 8140, email (kirsten.todd@tp.co.nz) or by telephone ((03) 963 8015).
  2. You may also use the Law Society’s complaints service by contacting the Complaints Service Office on 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.