Our terms of engagement outline what you need to know about the professional relationship between you and Kensington Swan when we work together.
1 Standard terms
1.1 This document contains our standard terms of engagement. Unless we agree otherwise in writing, these terms of engagement will govern our relationship with you. By instructing us to act for you, you agree to these terms.
1.2 If you have any questions about these terms, please contact the partner responsible for your instruction as set out in our email (or letter) of engagement.
2 Non-exclusive appointment
2.1 Unless we have agreed otherwise in writing, you have appointed us on a non-exclusive basis.
3 Fees and disbursements
3.1 Unless we agree otherwise in writing, our fees will be based principally on the time we spend on your matter, reflecting the hourly rates we charge from time to time for the individual lawyers'.
3.2 To ensure that the time we spend is cost-effective, we will have your matter dealt with by the lawyers and other suitably qualified persons with the most appropriate levels of skill and experience.
3.3 In addition, we will also take into account the factors set out in rule 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (‘Rules of Conduct and Client Care’) to ensure that our fees are reasonable and fair to us and to you. These factors include:
a.the complexity of the matter
b.the skill, specialised knowledge, and experience required
c.the responsibility involved
d.the importance of the matter to you and the results achieved
e.the urgency of the matter
f.the circumstances in which our services were provided.
3.4 Our hourly rates may vary from time to time to reflect changes in the skill, knowledge, and expertise of individual lawyers and to take account of changes in our costs. Firm-wide adjustments to our hourly rates typically occur annually on or about 1 January.
3.5 Our invoices will include our fees, as well as New Zealand Goods and Services Tax (GST), where chargeable.
3.6 In addition to our fees, incidental office expenses (such as routine copying, printing, binding, telephone, and fax charges) will be charged through a standard administration fee of 2.5% of our fees.
3.7 In dealing with a matter for you, we may need to make payments to third parties on your behalf. You agree to assume liability for these expenses as they occur. We may require an advance payment from you for this purpose.
4 Estimates and quotations
4.1 If we provide any estimate or quote, then (in addition to any stated assumptions) we do so subject to the following assumptions:
a.your instructions are complete and accurately describe our role
b.the matter will proceed and be completed in the manner anticipated in your instructions and within any indicated, or a normal, timeframe
c.you will provide any information or instructions we require to do our work in a timely and efficient manner
d.no unforeseen impediments will arise that require additional work
e.all parties and other advisers involved in the matter will be co-operative
f.any third party or regulatory consents or approvals will be given in a timely manner and will not involve protracted negotiations.
4.2 Any work you ask us to do outside the scope of our estimate or quotation will be charged for separately. This includes supplementary reporting or explanations, and any additional work we do because any of the assumptions are incorrect. We will do our best to advise you in the event any of the assumptions underlying an estimate or quotation are no longer valid.
4.3 Unless specified by us in writing, GST, disbursements, and our standard administration fee are excluded from any estimate, quotation, schedule of rates, or other indication of fees. Any breakdown of costs we provide to support our estimate or quotation is indicative only and we may adjust any component of such breakdown.
5.1 Our general policy is to send interim invoices on a monthly basis until completion of each matter, when we will send a final invoice.
5.2 Our invoices are payable within 14 days of the date the invoice is rendered, unless alternative arrangements have been agreed in writing.
5.3 In accordance with ordinary business practice, we exercise strict credit control. Please raise any queries you have about any invoice within seven days of receiving it.
5.4 Our invoices are payable in New Zealand dollars, unless we agree otherwise. Foreign currency disbursements may be converted to New Zealand dollars at our election.
5.5 If, on your instructions, we have agreed to send an invoice to a third party, and that third party fails to pay the invoice by the due date, we will send you an invoice for the same amount, which you must pay within 14 days.
5.6 If our invoices are not paid by the due date, we may charge interest on a daily basis on the amount overdue at the rate of 15% per annum.
5.7 You will be liable for all legal and debt collection costs that we may incur (including solicitor/client costs) in obtaining or attempting to obtain payment of our invoices, together with interest.
5.8 Should you wish to discuss credit terms, please do not hesitate to contact us.
6 Trust account
6.1 We maintain a trust account for all funds that we receive from clients, except those received for payment of our invoices. 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 6% of the gross interest earned, which will be deducted from that gross interest.
6.2 You agree that we may 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.
6.3 Where we are required by law to make payments on your behalf or as your agent, you agree that we may use your funds held in our trust account for that purpose, which may include payment of any tax to the Inland Revenue Department where required by law. You agree to provide to us upon request any related information that we require in order to comply with any such obligations, and irrevocably consent to us disclosing that information where we are required to do so.
7 Settlement moneys
7.1 For property, financing, and similar transactions where we require payment from you of funds to complete the transaction, we will need cleared funds for the correct amount to be deposited with us no later than midday on the day on which the transaction is to be completed. Proof of deposit must also be supplied.
8 Conflicts of interest
8.1 If we are acting for you on a matter, we will not (without your consent) act for another client against your interests on the same or any closely related matter.
8.2 We will not (without your consent) act for another client where we hold confidential information concerning you or your affairs that we have acquired in the course of acting for you, where disclosure of that information to that other client would be likely to adversely affect your interests and where there is a more than negligible risk of such disclosure. If necessary to prevent a conflict of interest, we will put in place an effective information barrier to ensure that the risk of disclosure is no more than negligible.
8.3 We recognise that New Zealand has relatively small commercial and legal markets. As far as possible, clients should be able to retain their lawyers of choice. Therefore, we may act for other clients on other matters whose commercial or legal interests are inconsistent with yours, unless otherwise agreed in writing.
8.4 In the event of a conflict, we will terminate our engagement with you if we are bound to do so by the Rules of Conduct and Client Care, or if we consider it appropriate.
9.1 We will hold in confidence all information concerning you and your business and affairs that we acquire in the course of acting for you. We will not disclose this information to any person, unless you expressly or impliedly authorise us to do so, except to the extent required to represent you, comply with our legal obligations, or as permitted by the Rules of Conduct and Client Care.
9.2 We may be required to collect, retain, or disclose to a bank, or by law to a competent authority, information relating to you (including but not limited to information about any country under whose law your organisation is constituted, or if you are an individual, your citizenship and tax residence of any country or countries, or information about the citizenship and tax residency of any country or countries of any controlling persons of entities). You irrevocably authorise us to collect, retain, and release any such information we hold to a bank or any competent authority.
10.1 You are the only party who may rely on our advice. We owe no duty or liability to any other party, including any associated companies, shareholders, directors, employees, or family members. If you want any other party to be able to rely on our advice, our written agreement is required.
10.2 If, during the course of our engagement, we provide services to entities related to or associated with you, then these standard terms apply to those services and you agree to ensure that those entities agree to these terms.
10.3 Our advice is not to be referred to in connection with any product disclosure statement, financial statement, or public document without our written consent.
10.4 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.
10.5 Our advice relates only to each particular matter in respect of which you engage us. Once that matter has concluded, we will not owe you any duty or liability in respect of any related or other matters unless you specifically instruct us in respect of those related or other matters.
10.6 Unless otherwise agreed, we may communicate with you and with others by electronic means. However, we cannot guarantee that electronic communications or services will not be lost, affected, or interfered with for some reason beyond our reasonable control. We will not be liable for any damage or loss caused thereby.
11 Retention of files and documents
11.1 Our general policy is to retain documents in electronic form unless instructed otherwise. 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. This does not apply to documents that we have agreed in writing to hold in safe custody for you.
11.2 Where we have agreed in writing to hold any documents in safe custody for you (which may be stored off-site), you agree to collect such documents from us at our request. Failing collection, we may destroy any deeds or other documents held for you. Our general policy is to retain files for a period of 15 years from the date the file is closed, although we may choose to destroy minor files after seven years and hold other files for a period longer than 15 years. However, you agree that we may destroy any file at any time unless, before a file is destroyed, you notify us in writing that you do not wish it to be destroyed.
12 Limitation of liability
12.1 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:
a.if an amount is available to be paid out under our relevant insurance policies in respect of our liability to you, that amount, up to a maximum of NZ$20,000,000 (including interest and costs)
b.in any other case, an amount equal to five times our related fees (excluding administrative charges, disbursements, and GST).
12.2 This limitation applies to all matters commenced following these terms being posted to our website www.kensingtonswan.com.
12.3 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) on which you engage us, then our aggregate liability to you and all those entities in respect of that matter (or series of related matters) will be subject to this limitation (and you will ensure that those entities agree to this).
12.4 All of the limitations contained in these terms apply to liability of all kinds, whether in contract, tort (including negligence), equity, or otherwise.
13.1 Where you give us an instruction, and we act in reliance on that instruction, you may not revoke that instruction. Subject to this, you may terminate our engagement at any time.
13.2 We may terminate our engagement at any time if:
a.you misrepresent or fail to disclose relevant facts to us (whether or not required by clause 9.2)
b.you mislead or deceive us in a material respect
c.you act contrary to, or ignore, our advice by adopting a course of action that we believe may be inconsistent with our obligations
d.we consider that a conflict of interest has arisen
e.you do not pay an invoice by a due date
f.any other circumstances require or justify termination under the Rules of Conduct and Client Care.
If our engagement is terminated, we may retain your files until our invoices are paid. If our engagement is terminated, these terms of engagement will continue to apply to the extent that is appropriate.
14.1 In the course of acting for you, we may collect and hold personal information concerning you. This information may be used by us to provide services to you, to obtain credit or other references, to undertake credit management, and to inform you of issues and developments that may be of interest to you or invite you to relevant client events. You authorise us to obtain from any person, or release to any person, any information necessary for any of those purposes, and you authorise any person to release to us information that we may require for any of those purposes.
14.2 Information concerning you will be held at our Auckland and Wellington offices. This information will be held in accordance with our terms relating to the retention of files and documents. Under the Privacy Act 1993, you have the right of access to, and correction of, your personal information held by us. Please contact us on +64 9 379 4196 or +64 4 472 7877 to access or correct your personal information.
15.1 You agree that we own copyright in all works and materials we create for you, unless expressly agreed otherwise in writing.
15.2 We license you to copy and reproduce all works and materials we create for you for usual business purposes and/or as contemplated by our engagement. If payment of any invoice is not made by the due date, this licence is immediately revoked until payment in full is made.
16.1 Any dispute between us is to be resolved by the New Zealand courts in accordance with New Zealand law.
16.2 We are 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 (and will not have any liability, whether in contract, tort (including negligence), equity or otherwise) in relation to your legal position under that foreign law.
16.3 We will give our advice in English. If we provide a translation into any other language then the English version will prevail in the event of any inconsistency.
16.4 Except as provided, these terms apply to any current and all future instructions, and if you continue to instruct us following a variation, you will be bound by the varied terms. However, we may vary these terms from time to time. The varied terms will appear on our website www.kensingtonswan.com.
16.5 These terms will not be affected by any change to our partnership.
To comply with the New Zealand Law Society Rules of Conduct and Client Care, we are required to provide you with the following information.
1.1 The basis on which fees will be charged is set out in our email (or letter) of engagement and our standard terms of engagement.
1.2 Our standard terms of engagement set out when payment of fees is to be made.
1.3 We may deduct any fees, expenses, or disbursements for which we have provided an invoice from any funds held on your behalf in our trust account.
2 Client care and service
2.1 Whatever legal services we are providing, we must:
a.act competently, in a timely way, and in accordance with instructions received and arrangements made
b.protect and promote your interests and act for you free from compromising influences or loyalties
c.discuss with you your objectives and how they should best be achieved
d.provide you with information about the work to be done, who will do it, and the way in which 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.give you clear information and advice
g.protect your privacy and ensure appropriate confidentiality
h.treat you fairly, respectfully, and without discrimination
i.keep you informed about the work being done and advise you when it is completed
j.let you know how to make a complaint, and deal with any complaint promptly and fairly.
2.2 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.
2.3 If you have any questions, please visit www.lawsociety.org.nz or call the New Zealand Law Society on 0800 261 801.
3 Persons responsible for the work
3.1 The name and status of the person or persons who will have the general carriage of, or overall responsibility for, the services we provide for you will be set out in an email (or letter) sent to you at the beginning of each new matter.
4 Professional indemnity insurance
4.1 We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the New Zealand Law Society. We will provide you with particulars of the minimum standards upon request.
5 Limitations on extent of our obligations or liability
5.1 Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out in our standard Terms of Engagement.
6 Lawyers Fidelity Fund
6.1 The Law Society maintains the Lawyers Fidelity Fund for the purposes 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. 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 except in certain circumstances specified in the Lawyers and Conveyancers Act 2006.
7.1 We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.
7.2 If you have a complaint about our services or charges, you may refer your complaint to the partner who has overall responsibility for your work.
7.3 If you do not wish to refer your complaint to that partner, or you are not satisfied with their response to your complaint, you may refer your complaint to the Chief Executive.
7.4 The Law Society also maintains a complaints service, and you are able to make a complaint to that service. To do so, you should contact the Law Society at P O Box 5041, Wellington 6145, email email@example.com, or telephone 0800 261 801.
13 March 2017