Staley Cardoza

Terms of Engagement

Terms

These Standard Terms of Engagement (“Terms”) apply in respect of all work carried out by us for you, whether or not we send you another copy of them.  They explain what you can expect from us and what you agree to when we work for you, they include information we are required to tell you under the New Zealand Law Society’s Rules of Conduct and Client Care for Lawyers, and apply to any current work and to any future work we do for you (unless we agree in writing to change these terms).

We are entitled to change these Terms from time to time.  Our latest Terms are available on our website. 

Services

The services which we are to provide for you are outlined in our letter of engagement.

For each new instruction we will give you a letter of engagement.  The letter will outline what we will do for you, and the names and status of the person or persons who will have the general carriage of or overall responsibility for the services we provide for you.

Duty of Care

When we do work for you, we will protect your privacy and confidentiality in accordance with the Privacy Act 2020.  We will act competently, promptly and according to your instructions, protect and promote your interests, give you clear information and advice, keep you informed about progress, treat you fairly and respectfully, and charge you a fee that is fair and reasonable, subject to any overriding duties we have (e.g. to the courts and the justice system) and any legal obligations we have (e.g. to provide information to some government agencies).

Our duties are owed to you, the client named in our letter of engagement.  Nobody else (such as family members, shareholders, directors, or related entitles) can rely on our advice without our written consent.   Before any other person may rely on our advice, we must expressly agree to this.

Your privacy and confidentiality

We consider client confidentiality to be of utmost importance.  We will treat all information we hold about you in strict confidence.  We will not disclose any of this information to any other person except:

• If you agree or ask us to; or

• To the extent necessary or desirable to enable us to carry out your instructions; or

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

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.

If we breach your privacy and/or confidentiality, and that breach has the potential to cause someone serious harm, our Privacy Officer will inform you, and the Privacy Commissioner, as soon as reasonably practicable.

If we hold funds in our trust account on your behalf (including any judgment, sale proceeds, settlement amount, or other money), you authorise us to:

• Provide any information we hold relating to your United States Foreign Accounts Tax Compliance Act (FATCA) or Common Reporting Standard (CRS) status, or other FATCA or CRS matters, to Inland Revenue and to our banks if they request information to be able to meet their FATCA or CRS obligations; and

• If you do not provide any such information we request, report your non-response, identity, and reportable balance to our banks and Inland Revenue (who will in turn pass this information to the relevant foreign tax authority).

Please ask us if you would like more information about FATCA or CRS.

Conflicts of Interest

When we do work for you, we will always protect and promote your interests.  Before we accept an instruction from you, we will do our best to find out if any conflict of interest exists.  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.

Retention of files and documents

We will keep a record of all material documents we receive or create working for you on each instruction.  We may destroy original documents you give us unless you tell us you do not want them to be destroyed, in which case we will return the originals to you once we have made electronic copies.  We will not destroy any original documents we have agreed to hold in safe custody for you.

If you ask us to provide documents to you or another person, we are not obliged to retain copies of those documents, but we may do so for our own records.  We will provide you with copies of documents you are entitled to under the Privacy Act or any other law if you ask us to.  We may charge you reasonable costs to do so.

You authorise us (without further reference to you) to destroy all files and documents (other than any documents that we hold in safe custody for you) seven years after our engagement ends, or earlier if we have converted those files and documents to an electronic format.

Who we accept instructions from

Unless you let us know otherwise:

• If you are a couple, we can accept instructions from either of you;

• If you are a trust, we can accept instructions from any of your trustees or officers;

• If you are a partnership, we can accept instructions from any of your partners or officers;\

• If you are a company, we can accept instructions from any of your directors or employees or any other person you have authorised to instruct us; and

• If you are a body corporate or incorporated society, we can accept instructions from any person holding themselves out as being authorised by the officers to instruct us.

Verifying your identity, source of funds and credit checks

We are required by law to verify your identity and, in some circumstances, the source of funds for a transaction.  We may wish to carry out reasonable credit checks on you from time to time

You authorise us to collect information about you (including customer due diligence information), to obtain, exchange, hold and use such information, and to make any other enquiries we think appropriate to:

• Confirm information provided to us about you is true;

• Undertake initial and on-going customer due diligence and monitoring in accordance with the Anti-Money Laundering and Countering Financing of Terrorism Act (AML/CFT Act);

• Enforce debt and legal obligations (including recovery of money owed to us); and

• Comply with other legal obligations we may have.

You accept that we may use customer due diligence services (including electronic based services from a third party) to verify your identity and conduct other customer due diligence or monitoring required under the AML/CFT Act, and that we may use credit reporting services to credit check you, and when we use such services:

• The other third party or credit report (each a Service Provider) will exchange information about you for that purpose and the Service Provider may hold information on its system and use it to provide their customer due diligence service or credit reporting service (as the case may be) to their other customers;

• We may use the Service Provider’s services in the future for any authorised purposed (including in relation to ongoing customer due diligence or the provision of credit).  This may include using the Service Provider’s monitoring services to receive updates if information held about you changes; and

• If you default in your payment obligations to us, information about that default may be given to credit reporters and given by credit reporters to their other customers.

Our fees and expenses

We will charge you fair and reasonable fees.  The fees which we will charge or the manner in which they will be arrived at, are set out in our engagement letter.  Unless agreed otherwise, our fees are based on the range of factors applied by the NZ Law Society, including time, expertise, importance, urgency and results achieved.

If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of our 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 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 range of hourly rates are set out in our engagement letter.   Details of our charges are available at any time.   The differences in those rates reflect the experience and specialisation of our professional staff.   Our hourly rates are subject to review and may increase periodically without further notice to you.  Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.

Unless we state otherwise, our fees, estimates, and hourly rates do not include Goods and Services Tax (GST) or office expenses and disbursements, which are payable by you.  Our services usually incur GST.  If this is the case, GST is payable by you on our fees and charges.

Retrievals and disbursements are out of pocket expenses charged on to clients (including tolls, photocopying, courier fees, territorial and regional authority fees, postal expenses and a file fee, referred to on the invoice as “sundry expenses”) and are included separately on our invoice to you.

We may have to cover fees paid to agents, court filing fees, government agencies (e.g. Land Information New Zealand, the Companies Office and the Register of Personal Property Securities).  You authorise us to incur these expenses, which will be shown on our invoice to you.  Sometimes we require a payment of these fees in advance.  Some disbursements and/or expenses may include a reasonable mark-up.

Legal Aid

In some cases, you may be eligible for legal aid.  If you want to apply for legal aid, we will let you know whether we would be prepared to complete the work for you on a legally aided basis.  If not, we will recommend another firm to you.

Before commencing the legal aid work you will be required to pay a legal aid user charge of $50.  As stated this payment is required before any work can commence.

Guarantee

If you are a company or other incorporated entity, we may require personal guarantees from your directors, shareholders or other officers.

Paying your invoice

We will send interim invoices to you, usually monthly, and on completion of the matter or termination of our engagement.   We may also send you an invoice when we incur a significant expense.

Invoices are payable no later than 7 days after the date of the invoice, unless alternative arrangements have been made with us.  If you have any questions about an invoice, please contact us straight away.   We may require interest to be paid on any amount which is more than 7 days overdue.   Interest will be calculated at the rate of 18% per annum from the date upon which payment was due, and you will be responsible for any debt collection costs (including disbursements) we incur in recovering outstanding amounts due, including amounts due to any Counsel or debt collection agency instructed by us.

Sometimes we may require you to pay fees, office expenses and disbursements in advance.  If we do, we will hold your payment in our trust account and only deduct our fees, office expenses and disbursements when we issue you an invoice.

If we hold funds in our trust account on your behalf, you authorise us to deduct any fees, expenses or disbursements for which we have provided an invoice, after 7 days of having provided you with the invoice.

If your invoice is overdue we may:

• Stop work we are doing for you until our invoice is paid in full; and

• Require an additional payment of fees in advance or other security before starting work again.

At your request or with your approval, we may send our invoices to a third party to pay on your behalf.  You are still responsible for payment by the due date if the third party does not pay us.

Money handling procedures

We maintain a trust account for all funds we hold on behalf of clients (except funds we receive for payment of invoices).

If we hold funds on your behalf, we will deposit them in an interest‑bearing deposit with a bank where reasonable and practicable.  You acknowledge that we cannot place your funds in an interest-bearing deposit if you have not provided us with any information we request relating to your FATCA and CRS status.  We are not responsible for obtaining the best interest rate available or for any loss of interest you suffer as a result of our failure or delay in placing your funds in an interest-bearing deposit.

We may charge an administration fee of 5% of the interest derived.  Withholding tax will be deducted on the interest earned and paid to Inland Revenue.  If we have your IRD number, you can elect to have withholding tax deducted at your applicable rate.  If we do not have your IRD number, we are required to deduct it at the default rate (which may be higher than your actual rate).

Where you transfer funds to our trust account in a foreign currency, we will convert those funds into New Zealand dollars at the prevailing exchange rate offered by our bank.  We are not responsible for seeking or obtaining a better exchange rate.

If we hold a small value of funds on your behalf (less than NZ $20.00) and we are unable to contact you, you authorise us to pay the funds to a charity of our choice.

Limitation on extent of our Obligations or Liability

To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our services is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.

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.

Termination

You may terminate our engagement at any time by giving us reasonable notice.

We may terminate our engagement in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.

If our engagement is terminated by us, we will give you reasonable notice.  Before you take your records, you must pay us all fees and expenses due up to the date of termination and any subsequent costs associated with termination and where relevant, transfer of your file as instructed by you.

Enforcing of these terms

The enforceability of these terms is not affected by the ending of our engagement or any changes to our partners or the incorporation of our firm.

New Zealand law applies

Our relationship is governed by New Zealand law and the New Zealand courts have exclusive jurisdiction.

Professional Indemnity Insurance

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.

If you would like further information about our insurance, please ask.

Lawyers’ Fidelity Fund

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.  Except in certain circumstances specified in the Lawyers & 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.

Complaints

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 complaint about our services or charges, you may refer your complaint to 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 either of the partners in the firm, namely, Susie Staley or Rachel Cardoza.  However, if your complaint is about one of the partners then you may refer it to the other partner.

Either of them may be contacted as follows:

• By letter to PO Box 5698, Dunedin 9058;

• By email to susie@staleycardoza.co.nz or rachel@staleycardoza.co.nz; or

• By telephoning either of them on 03 477 8856.

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 New Zealand Law Society on 0800 261 801.

Client Care and Service

We are committed to complying with the New Zealand Law Society’s Rules of Conduct and Client Care for Lawyers.  The Law Society’s client care and service information is set out below:

Whatever legal services your lawyer is providing, he or she must:

• Act competently, in a timely way, and in accordance with instructions received and arrangements made.

• Protect and promote your interest and act for you free from comprising influences or loyalties.

• Discuss with you your objectives and how they should best be achieved.

• Provide you with information about the work to be done, who will do it and the way the services will be provided.

• Charge you a fee that is fair and reasonable and let you know how and when you will be billed.

• Give you clear information and advice.

• Protect your privacy and ensure appropriate confidentiality.

• Treat you fairly, respectfully and without discrimination.

• Keep you informed about the work being done and advise you when it is completed.

• Let you know how to make a complaint and deal with any complaint promptly and fairly.

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.lawyers.org.nz or the New Zealand Law Society on 0800 261 801.

We value our relationships with our clients.  If you have any questions about these terms, please ask.