Terms of Engagement

Terms of Engagement (Terms)

We appreciate and thank you for your instructions to act on your behalf. We look forward to being of service and to working with you.

These Terms apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing. We are entitled to change these Terms in relation to any future engagement and if we do so we will send you a copy of any new Terms. You are not required to sign these Terms and we will take your instructions as your acceptance of these Terms or any new Terms (as the case may be).

We also have a Chinese version of our Terms.

1. Services
   1. The particular legal services we will provide for you are outlined in our letter of engagement.
   2. We are committed to delivering a service that is consistent and prompt and which includes:
      • Having Partners available to you.
      • Responding quickly.
      • Helping you achieve your objectives.
      • Understanding your business or affairs.
      • Communicating well.
      • Having excellent legal skills.
      • Giving pragmatic commercial advice.
   3. You can help us by:
      • Giving clear instructions.
      • Providing information to us quickly.
      • Discussing any time constraints.
      • Asking if you are uncertain of anything.
      • Telling us if we are not meeting your expectations.
   4. We will:
      • Confirm your initial instructions in our letter of engagement.
      • Tell you the name and status of the person or persons who will be carrying out the work.
      • Provide you with an Information for Clients form detailing your rights.
   5. We do not carry out valuations of property or businesses, and, whilst we will advise you in relation to acquiring a property or business, we are not responsible for determining whether the property or business meets your needs or investment profile. We recommend that you consult a suitably qualified professional such as a Registered Valuer, Financial Adviser and/or Accountant in relation to these issues.
   6. We do not provide investment advice in respect to financial products, accounting or tax advice. We recommend you obtain appropriate advice from a suitably qualified Financial Adviser and/or Accountant in relation to financial products, accounting and tax matters.
   7. Unless otherwise agreed in writing, we only provide advice in relation to New Zealand law and if we provide advice in respect of matters governed by foreign law, we do so as a guide only on the basis that we do not accept any responsibility or liability for the advice given and you should seek formal advice from an appropriately qualified lawyer in the relevant jurisdiction. If you wish, we can refer you to another Meritas member for advice in respect of matters governed by foreign law.
2. Meritas
   Martelli McKegg is a member of Meritas, a network of nearly 200 independent commercial law firms, located in major cities throughout the world.  While Meritas members are not engaged in the joint practice of law and do not share fees among themselves, membership in Meritas gives us, and our clients, important access to competent, legal resources in other jurisdictions and specialty areas of practice so that our clients' needs for legal services can be handled efficiently virtually anywhere. Further information about Meritas can be obtained at the organisation's web site:www.meritas.org.
3. Information and Documents
   1. You must provide us with all information and documents and complete and sign any certificates required by us or our bankers to enable us to comply with our obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML), United States Foreign Account Tax Compliance Act (FATCA), OECD Common Reporting Standard (CRS) and other similar laws (AML/CFT Legislation). You authorise us to collect information about you as we may consider appropriate and to verify information (using electronic based services from a third party) in order to meet our obligations under the AML/CFT Legislation.  We may be required to carry out this due diligence prior to carrying out your instructions.  You authorise any person to disclose information to us in relation to such queries.
   2. You must also provide all information and complete and sign any documents required to comply, and enable us to comply, with statutory requirements including without limitation the requirements of the Overseas Investment Act 2005 and Overseas Investment Amendment Act 2018, the Land Transfer Act 2017, the Income Tax Act 2007 and the Tax Administration Act 1994.
   3. If you are selling a residential property and we consider that you are an offshore person for the purposes of the Income Tax Act 2007, you accept that we may be obliged to calculate and deduct from the sale proceeds Resident Land Withholding Tax (RLWT) and account to the Inland Revenue for the amount of the RLWT deducted.
   4. You consent to us disclosing or reporting financial and other information about you and your transactions to those entities we are required to disclose or report to in order to comply with our legal obligations.
4. Financial Matters
   1. Fees:
      1. The fees that we will charge or the manner in which they will be arrived at are set out in our letter of engagement. Our fees are calculated by reference to guidelines laid down by the New Zealand Law Society. We are entitled to take account of such matters as:
         • The time spent.
         • The skill, knowledge and responsibility required.
         • The value of the property involved.
         • The complexity, novelty, importance and urgency of the matter.
         • The reasonable costs of running a law practice.
         • The result
           The relative importance of these factors will vary according to the particular circumstances.
      2. If our letter of engagement includes an estimate of our fees and expenses, we will advise you as soon as reasonably practicable if it appears likely that our fees or expenses are going to exceed that estimate. Unless specifically agreed by us in writing any estimate does not amount to a quote and our fees and expenses may exceed that estimate.
      3. If our letter of engagement specifies a fixed fee we will charge this for the agreed scope of our services. 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 fees.
      4. If our letter of engagement states that our fees are calculated on an hourly basis only, those rates will reflect the experience and specialisation of our professional staff, and from time to time they may be increased to reflect increases in cost and/or expertise.  Time spent is recorded in six minute units with time rounded up to the next unit of six minutes.
   2. Disbursements and expenses: In providing our services to you we may incur disbursements on your behalf such as land registration fees, valuation fees, court filing fees or other expenses payable to third parties. We will generally ask you to make advance payments to us to cover these disbursements and expenses. 
   3. Sundry Fee: In addition to charging disbursements and expenses we will also charge you a sundry fee on every invoice to cover our internal costs (such as tolls, telephone charges, printing and photocopying charges).
   4. Services of Other Consultants: Where it is necessary for us to engage the services of other consultants on your behalf to provide specialist advice or services, including advocacy services, we will discuss the terms of any consultant's engagement with you. In general we will require payment of any consultant's fees prior to our instructing them.
   5. GST (if any): All amounts exclude GST and GST (if any) shall be payable by you in addition to our fees and expenses.
   6. Invoices: For ongoing matters we will send interim invoices to you (usually monthly) and a final invoice on completion of the matter or on termination of our engagement. We may also send you an invoice when we incur any significant third party expenses on your behalf. Where a transaction will be completed within a short time we will send you an account prior to or on completion of that transaction.
   7. Payment: Other than for property related transactions where payment is generally required on settlement, we require payment of all accounts upon receipt of our invoice. We may require interest to be paid on any amount that is more than seven days overdue. Interest will be calculated at 15% per annum. Where debt collection action of any kind (including litigation action) is taken to recover or attempt to recover unpaid fees and disbursements from you, then the out-of-pocket cost of such recovery may be added to the amount due by you and additionally, to recompense us for the time and trouble representing ourselves in such action and to reflect the lost opportunity of using that time doing professional work for other clients and being remunerated accordingly, we may at our discretion add to the amount due by you liquidated damages calculated by the time recorded in relation to the collection action charged at our current solicitor fee rates. We may deduct any fees, expenses or disbursements for which we have provided an invoice from any funds held in our trust account on your behalf. All accounts must be paid without deduction of any kind (including cross claim) or equitable or legal set‑off.
   8. Security: We may ask you to pay an amount into our trust account or to provide other security for our fees and other expenses. By accepting these Terms you authorise us to draw on that money to pay our fees and other expenses as they become due.
   9. Third Parties: It is possible that a court or tribunal may make an order that you pay another party's costs and expenses. Payment of those costs is additional. It does not alter your liability to pay any costs and expenses payable to us. If your costs are due to be reimbursed by a third party (e.g. the costs of preparing a lease) you will remain responsible for payment to us if that third party fails to pay those costs.
   10. Trust Account: We maintain a trust account for all funds which we receive from or on behalf of clients (except monies received for payment of our invoices).
   11. Interest Bearing Deposits: If you wish or expect us to place funds which we hold in our trust account on your behalf on interest bearing deposit, you must first complete, sign and return a self-certification form or forms to us to enable us to comply with our FATCA/CRS obligations. If we are holding significant funds on your behalf and we hold a completed and executed self-certification form or forms we will normally lodge those funds on interest bearing deposit with a bank. In that case we will charge an administration fee of 5% of the interest derived. You will also need to supply us with your IRD number and marginal tax rate so we can ensure that we can deduct resident withholding tax at the correct rate.
5. Your Satisfaction
   Your satisfaction is very important to us. We have a procedure for dealing with any matters of concern. Further detail is contained in our Information for Clients form.
6. Termination.
   You may terminate your instructions to us upon giving us reasonable notice in writing. We may terminate our retainer in certain circumstances including where you cannot or will not provide instructions to us or where you do not pay our fees and expenses when due. If you do not pay our fees we may cease carrying out any further work for you. In the event of termination by you or us, you must pay our fees and expenses up to the date of termination.
7. Retention of Files and Documents
   We will retain our files and all documents in electronic form only unless otherwise instructed by you in writing.  While we will endeavour to retain electronic copies for seven years we cannot guarantee that they will always be available or readable.  If you give us an original 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. Where you hold original documents or have copies of documents we suggest you keep these in a safe place. This is particularly important for trust matters where actions and decisions may need to be reviewed many years after those actions or decisions were taken and documentation must be kept for as long as the trust exists. For business transactions it is often a requirement of IRD that a file be retained for between seven and ten years. In all cases, we will be entitled to retain possession of your file and documents while there is money owing to us for our fees and expenses.
8. Liability
   1. Exclusion: You acknowledge that where you are in trade the provisions of the Consumer Guarantees Act 1993 (CGA) shall not apply and that sections 9, 12A and 13 of the Fair Trading Act 1986 (FTA) shall not apply for the purposes of section 5D of the FTA. Where you are not in trade, nothing in these Terms is intended to limit your rights under the CGA or the FTA.
   2. Limitation of Liability: Unless otherwise agreed in writing, and to the extent permitted by law, our total liability to you in relation to any matter or series of related matters for which you engage us will not exceed the greater of:
      1. The amount available to be paid out under any relevant insurance held by us up to a maximum of NZ$20,000,000; and
      2. Where no amount is available to be paid out under any relevant insurance held by us, the amount equal to five times our paid professional charges relating to the matter or series of related matters to which the claim relates up to a maximum of NZ$1,000,000.
   3. Time Limit for Claims: For the purposes of any claim against us, as defined by the Limitation Act 2010, whether in contract, tort, equity or otherwise, arising out of our engagement, the Act shall be modified so that any claim must be filed within 12 months after the date of the act or omission on which the claim is based. Further, the "late knowledge" provisions in sections 11(2), 11(3), 14 and 32(2) shall not apply. The 12 month time period applies whether or not loss or damage has become apparent, or has been suffered, within that time period.
9. Electronic Communications
   1. Where we provide any electronic service to you or communicate with you by electronic means, we will take all reasonable precautions to ensure that those services and communications are accurate, reliable, adequate, complete, confidential and secure but cannot warrant or guarantee that this is the case. We do not accept responsibility and will not be liable for any loss or damage caused in connection with, or as a consequence of, the corruption of an electronic service or communication.
   2. We are entitled to rely upon the authenticity of electronic communications ostensibly received from you.
10. Governing Law
    These Terms are governed by New Zealand law and are subject to the exclusive jurisdiction of the New Zealand courts.