Terms of Engagement

Berry & Co’s Terms of Engagement set out the basis of our professional relationship with you in accepting and actioning your instructions. Unless we agree different terms, in writing, these terms apply whenever you instruct us to act for you.

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

In order to comply with legislation you will be required to provide certain information/documentation generally via an electronic identity verification process. In the event that requirements are not met we may cease acting for you until compliance is obtained.

Scope of our work and role

The services that we will provide for you are outlined in our engagement letter.

Any advice given by us is solely for your benefit and may not be relied on by another person unless we agree to that in writing.

We are not responsible for advising you on any tax issues, unless you specifically instruct us to do so.

Our name and advice may not be used in connection with any offering document, financial statement, report or other public document without our written consent.

When our instructions on a matter are completed, our representation to you will end. We are not obliged to notify you of any subsequent changes or law, or provide any further services to you relating to that matter.

Our fees and other charges

Professional Fees

Our fees are charged on the basis of the New Zealand Law Society Rules which require that fees be fair and reasonable for the services provided. In setting our fees, we take into account a number of factors including the following;

  • Time spent, including time investigating the facts and researching the law
  • Skill, specialised knowledge and responsibility required
  • Importance of the matter to you and the results achieved
  • Urgency and circumstances in which your matter is carried out
  • Degree of risk assumed by us in undertaking the services, including the value of any property involved
  • Complexity of the matter and the difficulty, or novelty, of the questions involved
  • Experience, reputation and the ability of the lawyer
  • Possibility that the acceptance of your instructions may preclude engagement of the lawyer by other clients
  • Whether the fee is fixed or conditional
  • Any quote or estimate of fees given to you
  • Any fee agreement (including a conditional fee agreement) between you and us
  • Reasonable costs of running a law office
  • Fee customarily charged in the market and locality for similar services, and
  • Compliance with legislative requirements.

We will provide you with an estimate of our fee, if this is requested. Please note, the estimate is not a firm quote. We will let you know if it becomes apparent that the fee estimate may be exceeded.

Disbursements

A disbursement is a payment made to a third party on your behalf such as (but not limited to) LINZ search and registration fees, Court filing fees, specialist reports and LIM fees.

Office Expenses

Our invoices will also include office expenses incurred having regard to the specific work we do for you which may include an administration fee relating to access to, processing or compliance for restricted secure internet programmes, electronic identity verification charges as well as an office service charge to cover the cost of file creation and/or administration, storage (both physical and electronic) pursuant to statutory requirements, postage, phone calls, general print and copy, fax transmissions and electronic communication. This charge is made at a standard rate based on the value of the invoice.

GST

Goods and Services Tax is payable by you on our fees and charges.

Invoices

We will provide you with invoices at regular periods (usually monthly). We may also invoice you when we incur a significant expense on your behalf.

Payment

Invoices are payable by 20th of the month following the date of the invoice, unless alternative arrangements have been made with us.

If payment of our invoice by you is overdue, we may:

  1. Not perform any further work for you until all unpaid invoices are paid in full;
  2. Retain custody of any of your property (including documents or files) until all unpaid invoices are paid in full;
  3. Charge interest at the rate of 5% above our firm’s main trading bank’s commercial lending rate as at the close of business on the date payment became due;
  4. In the event of having to instruct a debt collection agency, add any cost of debt recovery on to the total balance outstanding;
  5. Register a caveat against any property owned by you as security for unpaid fees and disbursements that you owe to us, and to this end you hereby acknowledge that these Terms of Engagement constitute an agreement to grant a mortgage on the terms set out in the current “all obligations” form of mortgage published by the Auckland District Law Society Incorporated in our favour and you appoint us as your attorney for the purposes of executing and effecting registration of the mortgage.

Security

As security we may ask you to pre-pay amounts to us as a retainer before commencing work on your behalf, or to provide security for our fees and out of pocket expenses.

You authorise us to:

  • Debit against amounts pre-paid by you, and 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.

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 payments to us if the third party fails to pay us.

Engaging Experts

From time to time it may become necessary to engage experts to assist us on your file, e.g. Specialist Barrister / Tax Accountant / Planner. We will liaise with you to discuss the need/desirability for any recommended expert engagement and obtain your consent to their appointment. You will be responsible to reimburse us for all expert fees and disbursements incurred in undertaking work on your file(s) and we might request that you pay us those costs in advance.

Confidentiality

Client confidentiality is essential to us both. 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 to the extent:

  • Necessary or desirable to enable us to carry out your instructions, and
  • Required by law or the NZLS Rules

Confidential information concerning you will, as far as practicable, be made only available to those within Berry & Co who are providing legal services for you. We will not disclose to you confidential information which we have in relation to any other client.

Termination

You may terminate this agreement at any time. We may terminate this agreement in any of the circumstances set out in the NZLS Rules.

If the agreement is terminated you must pay us all fees due up to the date of termination, and all disbursements incurred up to that date.

Retention of Files and Documents

You may leave documents in our possession after your matter has concluded. We may destroy our paper files (but not any documents we hold in safe custody for you such as Wills and Deeds) after a matter is completed. We will retain an electronic copy of your file in your own care then you will need to uplift it as soon as the matter is completed because once we have saved the file electronically it will be destroyed.

Conflicts

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 NZLS Rules’ requirements and procedures.

Duty of Care

Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.

Intellectual Property

We retain all ownership rights in all intellectual property of any kind created by us for you. You may not reproduce our intellectual property or provide it to a third party without our express consent.

Electronic Communications

We may communicate with you and others at times electronically. These communications can be subject to interference or interception or contain viruses or other defects (‘corruption’). We do not accept responsibility for, and will not be liable for any damage or loss caused in connection with, or as a consequence of, the corruption of an electronic communication.

Trust Account

We maintain a trust account for all funds received from clients (except monies received for payment of our invoices).

We may receive funds on your behalf that you would like us to hold on interest bearing deposit within our trust account pending future payments on your behalf. We are unable to place those funds on interest bearing deposit with the firm’s bank unless the bank’s requirements have been complied with. We will provide you with details of what is required. We will not be liable for any loss you might suffer if we do not receive the required information from you.

If we are authorised to place funds on interest bearing deposit you will be asked to provide your IRD number or a copy of your interest withholding tax exemption certificate and your tax rate. We charge an administration fee of 8% of the gross interest derived.

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

General

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

We are entitled to change these terms from time to time, in which case we will either send you an amended document and/or publish it on our website.

New Zealand law governs our relationship and New Zealand courts have non-exclusive jurisdiction.