Principal Aspects of Crosby Law’s Client Service
Please note that in signing these terms of engagement this does not mean that I will accept those terms of engagement. The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act) (Phase 2) comes into effect on 1 July 2018 for lawyers and therefore in order to comply with the AML/CFT Act I will require information from you in order to satisfy myself that my obligations are being met. If I do not have sufficient information, or cannot satisfy myself that my obligations will be met, I reserve the right to terminate this retainer.
1.1 As a valued client of my firm it is important that you are aware of the principal aspects of my client service and general terms of business. These terms apply to all legal services rendered by me unless we have an alternative arrangement with you in writing.
- If you have any questions concerning these terms, please contact me.
2. The Basis on Which Fees Will Be Charged
2.1 I calculate my fees so as to give a fair and reasonable return for the services I provide, having regard to your interests and mine. In determining a fair and reasonable fee, the following factors are relevant.
- The time and labour expended
- The skill, specialised knowledge and responsibility required to perform the services properly
- The importance of the matter to you and the results achieved
- The urgency and circumstances in which the matter is undertaken and any time limitations imposed
- The degree of risk, including the value of any property involved
- The complexity of the matter and the difficulty or novelty of the questions involved
- My experience and reputation as a lawyer
- The possibility that acceptance of your instructions will preclude me from acting for other clients
- Whether the fee is fixed or conditional
- Any quote or estimate I may give
- Any fee agreement or special arrangement I may have with you
- The reasonable costs of running my practice
- The fee customarily charged in the market for similar legal services
- If I give you a fee estimate:
- It is an estimate only and I will review if necessary. The final fee may be more or less than the estimate (although I will endeavour to make my estimates as accurate as possible, based on the information available to me at the time). My charge out rate is $300 plus GST per hour.
- Fee estimates do not include office charges, disbursements or GST unless specifically stated
- If the agreement does not proceed for any reason including, but not limited to, an uplift of my file, conditions not being satisfied by you as purchaser, or by the vendor, or I am not able to act because I cannot satisfy the AML/CFT Act requirements I will charge a fee for my time and attendance spent on the file. The minimum fee for this will be $300 plus GST and any disbursements incurred.
- If you do not settle on the due date for settlement in accordance with the contract, then I reserve the right to charge for further attendances related to late settlement.
- In addition, my attendances will cover the monetary (financial) side of the transaction and I will act for you in relation to the settlement of the transaction which will involve checking the settlement statements that are provided by the Vendor’s lawyer, preparing reconciliation statements, preparation of authorities to carry out the transaction to transfer the property into your name, attendances in relation to loan documentation and with your bankers and all other necessary attendances to conclude the sale. The reason I will act on the monetary side is because I have the necessary qualifications as required by the New Zealand Law Society to carry out this work in New Zealand.
- If, with your agreement, I instruct a third party to render services for you (for example an accountant, valuer, notary public or specialist barrister) I may require you to deposit funds to my Trust Account which I will hold for payment of the third party’s fee.
3. Payment of settlement funds
3.1 I require all funds to be paid into my trust account from a New Zealand bank account. Any money coming into my bank account from overseas will be remitted back to the sender. In accordance with the AML/CFT Act if this occurs I will be required to a submit prescribed transaction reports for all overseas wire transfers into my account over $1000 ($NZ).
4. Time For Payment of my Accounts
4.1 My accounts are payable on settlement of the purchase of the property, or 10 working days from the receipt of the invoice for any non-conveyancing matter, unless alternative arrangements have been agreed with you. If you pay by cheque, your payment is received when the cheque has cleared.
5. Deduction from Funds in Trust
- Where I hold funds on your behalf in my Trust Account other than for a specific purpose, I may deduct my fees and other charges from those funds. By instructing me you authorise me to do this. If I do this, I will inform you in writing.
- Anti-money laundering and Countering of Financing of Terrorism Act 2009 (AML/CFT Act)
- As set out on page 1, I am obliged to comply with all laws relating to the AML/CFT Act and as such will be required to undertake due diligence, monitoring and reporting to banks or other government entities as required to comply with such laws. On this basis I will be required to obtain from you information from time to time to ensure compliance with the AML/CFT Act. If you do not provide such information so that I can comply, then I may suspend or terminate my retainer with you.
- If, because of your business or trust structure I require from you information relating to source of funds or source of wealth I will require evidence of how this was attained. If you do not provide me with sufficient evidence in order for me to ascertain a clear picture of your source of income or wealth then I will not be able to continue to act for you. If I am required to make a number of enquiries to ascertain your source of funds or source of wealth, or you do not provide clear instructions regarding this, I reserve my right to charge for my attendances at $300 plus GST per hour.
- Our Professional Indemnity Arrangements
- Crosby Law Limited holds professional indemnity insurance in accordance with standards time to time specified by the Law Society.
- Coverage Provided By Lawyer’s Fidelity Fund
- The Law Society is required to establish and maintain a Lawyers Fidelity Fund to provide for compensation, in whole or part, for persons who suffer pecuniary loss arising from theft of any money or valuable property entrusted to a lawyer in the course of provision of legal services or as solicitor-trustee. Compensation is limited to $100,000 per claimant.
- Except in certain circumstances, the Lawyers’ Fidelity Fund does not cover loss of money that a lawyer is instructed to invest on behalf of the client. So, if you instruct me to invest money on your behalf that money is not covered by the Lawyers’ Fidelity Fund.
- I maintain a procedure for handling client complaints. My aim is to ensure any complaints are dealt with promptly and fairly. If you have a complaint regarding any aspect of my service I ask that you raise this initially with me.
9.2 The New Zealand Law Society also offers a service for the resolution of complaints. You can contact the New Zealand Law Society on 0800 261 801 or www.lawyers.org.nz.
- Tax Advice
- I will not provide you with tax advice or advice as to structure of ownership. I suggest that you obtain the services of an accountant in this regard.
- Interest on Overdue Accounts
11.1 If you do not pay any account on time I may charge interest on the overdue amount, from the date payment falls overdue until the date payment is made in full. The interest rate which will apply is 5% above my overdraft rate from time to time. This does not affect my other rights to recover payment.
- Payment in Advance
12.1 If I request payment in advance on account of my costs the amount paid by you in advance will be held on trust until I send you an invoice. Payment will then be made by deduction from the funds held on trust. Requests for payment in advance are not quotes or estimates of costs. Where payment in advance is requested I may not carry out further work or incur further disbursements until payment is made.
- Ongoing matters – monthly billing
13.1 For matters involving work spread over more than 4 weeks I will generally send an account to you on an interim basis every month.
- Interest on Funds Held on Trust
14.1 If your funds are, with your agreement, placed by me on interest bearing deposit with my bank, the interest received belongs to you. It is calculated at my bank’s floating deposit rates applying from time to time. From the interest received I deduct our commission (5% of the interest received) and the withholding tax.
14.2 If you instruct me to place funds on interest bearing deposit with my bank then you will be required to complete a self-certification form disclosing your tax residency and any applicable taxpayer identification number. This is in accordance with common reporting standards (CRS) and the Foreign Account Tax Compliance Act (FATCA). If you do not provide me with the correct information I will not be able to hold funds on interest bearing account for you.
- Interest Withholding Tax
- For New Zealand residents, where an IRD number has been supplied, you may elect your withholding tax rate. If you have not supplied an IRD number, the non-declaration rate will be used.
- For non residents, differing rates apply depending on tax residency and status.
- I will provide an interest withholding certificate each year, covering the previous tax year to 31 March.
- Suspension of services
- If any account is not paid on time I may decide not to carry out further work or incur further disbursements until payment of all accounts is brought up to date.
- You will be liable for all legal and debt collection costs that I may incur, including my costs calculated on a solicitor/client basis, in enforcing, or attempting to enforce, rights under these terms and conditions.
- I may terminate my retainer at any time.
- I may terminate our retainer in any of the circumstances set out in the Law Society’s “Rules of Conduct and Client Care for Lawyers”. You can view these Rules on the Law Society website at www.lawyers.org.nz
- If my retainer is terminated, you must pay me all fees and expenses due up to the date of termination.
- Files and Documents
- My files remain my property at all times. Copies are available on request, subject to payment of any outstanding accounts.
- Original legal documents are your property and may be uplifted by you upon payment of any outstanding accounts and upon completion of a written authority to uplift documents (which I can provide to you on request).
- Privacy Act
- If you are an individual, you have a right of access to information which I hold about you. You may request correction of that information and may require your request to be stored with that information (subject to payment of my reasonable costs of providing access to that information).
- You authorise me to collect, retain and use information about you for my purposes, including to assess your credit-worthiness (for which purpose I am authorised to pass such information on to credit reference agencies). You also authorise me to provide any information I may hold about you to and for the use of any credit and/or debt collection agencies I might engage to recover any debts owed by you to me.
- Consumer Guarantees Act
20.1 Where I am providing services to you for the purposes of a business, the Consumer Guarantees Act will not apply.
- General Matters
- Having read these terms and conditions I consider that, unless you raise any points regarding them, you have accepted them and agree that they govern our business relationship.
- These terms will apply to any work I carry out for you unless you agree alternative terms with me.