Client care charter – our commitment to you

We are committed to doing our best to ensure that your legal needs are met.

We will:

1. Protect and promote your interests and act for you free from compromising influences or loyalties.
2. Discuss with you your objectives and how they should best be achieved.
3. Act competently, in a timely way and in accordance with instructions received and arrangements made.
4. Provide you with information about the work to be done, who will do it and the way the services will be provided.
5. Protect your privacy and ensure appropriate confidentiality.
6. Treat you fairly, respectfully and without discrimination.
7. Give you clear information and advice.
8. Keep you informed about the work being done and advise you when it is completed.
9. Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
10. 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 the justice system. If you have any questions, please contact us or the New Zealand Law Society on 0800 261 801 or at www.lawsociety.org.nz. Please retain your letter of engagement and these terms of engagement as a record of our commitment to attend to your affairs diligently, with efficient, effective and professional service.

Basis of our advice

Unless otherwise agreed by us in writing, you acknowledge that any legal advice which we give to you in relation to the engagement is:

1. For your sole benefit.
2. Given for the purpose that you instructed us.
3. Limited to the issues and circumstances stated in it.
4. Not applicable by implication to other matters.
5. Not to be published, quoted or referred to in any public document.
6. Relevant on the date that it is given.

You agree that any legal advice given to you by a principal or employee of our firm is given on behalf of our firm and not in their capacity as an individual and that no principal or employee of our firm has any personal liability or special duty to you or anyone else in relation to any work carried out.

Investment advice

You agree that neither our firm nor any of its principals or employees is responsible for providing, nor provides, any financial or investment advice in connection with any engagement.

Basis for charging

As a general rule, lawyers charge for their time and expertise in working on your matter. This means that the more time spent on the matter the greater the fee is likely to be.

Our professional fees are calculated on guidelines laid down by the New Zealand Law Society. When calculating the amount of any fee for your work we take into account all relevant factors, including:

1. The time and labour expended.
2. The skill, specialised knowledge, and responsibility required to perform the services properly.
3. The importance of the matter to you and the results achieved.
4. The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you.
5. The degree of risk assumed by us in undertaking the services, including the amount of value of any property involved.
6. The complexity of the matter and the difficulty or novelty of the questions involved.
7. The experience, reputation and ability of those lawyers providing services to you.
8. The possibility that the acceptance of the particular retainer will preclude engagement of our firm by other clients.
9. Whether the fee is fixed or conditional (whether in litigation or otherwise).
10. Any quote or estimate of fees given by us.
11. Any fee agreement (including a conditional fee agreement) entered into between us.
12. The reasonable costs of running a practice.
13. The fee customarily charged in the market and locality for similar legal services.

The hourly rate of an author working on your matter may change and a full list of the rates of any authors working on your matter can be provided at any time. We will also charge for disbursements (court fees, registrations, duties, levies etc.) and office expenses incurred on your behalf. These will be itemised separately and we will notify you if any of these need to be paid in advance.

Billing

In general, we may issue you an interim invoice (usually monthly) while the work is in progress and a final invoice on completion of the matter.

Our current terms for payment of our invoices are that payment is due within 14 days from the date of the invoice. Also, if we are holding or receive any funds on your behalf, we may deduct any outstanding fees or disbursements for which we have provided an invoice.

It is not always possible to accurately predict the amount of fees and expenses to complete any matter as this will vary depending on the extent of work required to get the best results, the quality of instructions we receive, the approach and attitude of any other party as well as other factors including any assumptions contained in our engagement letter. Any estimate is not a fixed price quote and can only be used as a guide of possible costs.

Sometimes we may find it necessary to ask you to pay us in advance an amount on account of our professional and other charges or disbursements. In that case we will have your authority to draw on that money for those charges and disbursements as they become due.

Occasionally disbursements are billed to us later than the month in which they are incurred and this may result in a delay in billing them to you.

Our bills contain simple explanations of the work undertaken which we have found most clients prefer. We can, however, provide more detailed bills if required on an individual request basis.

You authorise us to deduct any outstanding fees and disbursements from funds held on your behalf. We will provide a statement of money received on your behalf and any fees that are deducted. By engaging us you acknowledge that payment by this method is for your convenience and at your request and in lieu of payment by any other means and that such deduction is to be treated in all respects as if you had remitted such payment to us without reservation.

All bills outstanding two months after invoicing will be subject to a late payment interest charge of up to 2% per month, compounding.

If a third party undertakes responsibility for the payment of our fees, costs or expenses incurred on your behalf and such third party either (a) fails for any reason to pay such fees, costs or expenses within one month of the date stated in our invoice or request for payment, or (b) refuses to make such payment, you will immediately pay such fees, costs and expenses as are outstanding.

Disbursements and Office Services

We will either charge you or pass on to you for payment all other out-of-pocket expenses which we may need to incur. This could include such things as agent’s fees, counsel’s fees, the fees and disbursements for other lawyers, courier and filing fees, file retrieval fees, searches and taxis where relevant.

We will also charge you for office services provided by us in acting on your behalf. These services include but not limited to client onboarding, compliance and AML costs, scanning, photocopying, phone calls, printing, postage, file storage, stationary and information retrieval. As at 1^st June 2023 office services are charged at 4% of the legal fee charged (minimum charge $50).

Companies, trusts and joint clients

If we receive instructions from you in your capacity as a director or shareholder of a limited liability company or as a settlor or trustee of a trust or estate (or any other non-personal entity) then such instructions are accepted on the basis that you are at all times personally responsible as principal debtor for payment of our fees and disbursements and you personally indemnify us for the payment of our fees rendered to these entities.

In cases where instructions are received from more than one client jointly, such clients will be jointly and severally liable for payment of our fees and disbursements. In such cases, unless otherwise agreed in writing, we may, but are not required to, accept and act on instructions from any one person from such a joint client.

Avoiding conflicts of interest

We may act for clients who compete with or, more rarely, may even be involved in business with you. Naturally, we will continue to represent those clients or new clients where we consider that no conflict arises between your interests and the interests of those other clients arising out of the work we are engaged to perform for you. Please raise this with us if this becomes a concern to you.

AML/CFT

We are required by law to collect and retain certain information about our clients under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and its related regulations.

By accepting our engagement you agree to provide us with all information and documents which we are required to collect and to also complete the necessary verification of identity documents as required.

Email transmissions

We may communicate with (and take instructions from) you and others via email for the transmission of all correspondence, documents and advices where appropriate unless we are specifically requested by you not to do so. Because email is not secure and may be read, copied, interfered with or impaired in transit, you agree to assume the risks associated with such transmission and to release us from any claim you may have arising from transmission defects. Transmission defects include the non-receipt by you of any email communication. When you correspond with us by email then your email to us is deemed to be received only once receipt is personally acknowledged by us to you and not by any automated reply you may receive.

Ownership of work

In relation to the work that we do for you, you will acquire ownership of the product of that work in its tangible form including any correspondence, memoranda, reports and any other documents prepared for your use. You will be entitled to receive any such papers provided that we have received payment of all sums due to us.

For regulatory purposes we shall be entitled to retain copies of all such work for our own purposes. If we have retained copies of the same in whatever form we shall, at any time, be entitled to destroy such product. We shall retain ownership of our working papers and the copyright and all other intellectual property rights in the work that we do for you which will remain our sole property. For the purpose of advising you or other clients and subject to our duties of confidentiality to you, we shall be entitled to use, analyse, share and develop the knowledge, experience or skills of general application gained through working for you.

Records management

You will not be charged any costs of file storage, however, should you require to have your old file retrieved a retrieval fee will be payable by you and should you wish to take possession of the file at any time prior to expiration of the storage period, the reasonable scanning/photocopying costs of duplicating your file will be payable by you as well as any fees outstanding by you.

Our firm is now running an electronic office. You therefore authorise us to destroy all paper documents and files upon receipt after we have made an electronic copy. You separately authorise us to destroy all historical paper files and documents that we might hold 10 years after that matter has been completed or sooner if we have made an electronic copy of them.

We will not destroy any documents we have agreed in writing to hold in safe custody for you (such as Wills). However, documents are stored at your risk and hence you are strongly encouraged to make your own insurance arrangements to cover the perceived value of the relevant documents.

Termination of our services

The proper discharge of legal work requires continuing mutual co-operation and confidence.

Accordingly:

1. You may terminate our services by giving notice in writing at any time.
2. We may elect to discontinue your work if you fail to pay our bills when due, if you fail to provide us with adequate instructions, if (in our reasonable opinion) our relationship has broken down, or if we are legally or otherwise obliged to do so. If we take this action, we will give you notice of our termination of our services, and of the grounds on which any such notice is based. In either case you will be required to pay our professional fees for work done, and for the charges and disbursements incurred, up to the date of termination.

Dormant balances policy

If we hold any funds in credit in our trust account ledger that remain for a period of 3 months or more after your matter is completed and these funds belong to you, we will generally make reasonable efforts to locate you to arrange for the amount to be paid to you. We may deduct our reasonable costs of trying to locate you to pay residual monies held in credit.

For an individual, amounts of $20 or over will be refunded to you, or, where your contact details or bank account details are not available, credited to the Inland Revenue Department’s unclaimed monies account within a period of 6 months after the completion of your matter.

For a company, amounts of $20 or over will be refunded to the company, or, where the company contact details or bank account details are not available, credited to the Public Trust CSC Accounting Department’s unclaimed monies account within a period of 6 months after the completion of the matter.

However, we may not attempt to locate you if (a) the amount is small (under $20) and (b) it is not economic for us to try to locate you; and (c) we are not holding current contact details for you. In these circumstances we will pay the residual monies to our nominated charity, Cure Kids.

Disclosure

The following disclosure is required by part four of the Securities Markets Act 1998. The procedures relating to receipt and distribution of the funds are as follows:

1. Our firm operates a trust account which is governed by the Solicitors Trust Account Rules. All money received by you on your behalf will be held to your credit in the trust account. Payments out of the trust account will be made only to you or to others with your authority. Written authorisation may be required where payment is to be made to a third person.
2. A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided at any time on your request.
3. Payments to our firm can be made either by cash, Eftpos, cheque, or by direct credit to our trust account. If you intend to direct credit money to our account, you must inform us in writing at the time so that we will know who to credit and for what purpose.
4. Where the funds are of a significant amount and where it is otherwise appropriate, funds will be placed on call deposit with a trading bank registered under section 69 of the Reserve Bank of New Zealand Act 1989. Funds may also be placed on term deposit. Your authority will be required for a term deposit.
5. Where you request us to receive investment income, collection commission equal to 5% of the gross interest will be deducted from the income collected.
6. Interest earned, less withholding tax and less the collection commission payable to our firm, will be credited to your account.

Amendments

We may at any time amend, revoke or replace these terms of engagement. If we do so we will provide notice of such on our website www.cavell.co.nz and such amended, new or replacement terms will take effect immediately. Any continued use of our services will constitute your acceptance of those terms.

Severability

If any provision of the engagement agreement is held to be invalid or unenforceable by any judicial or other competent authority but would be valid or enforceable if some part of the provision were modified or deleted, the provision in question will apply with the minimum modification or deletion necessary to make it valid and enforceable, and the other provisions the engagement agreement will be unimpaired and will remain in full force and effect.

Rights of third parties

Our work is carried out for your sole benefit and with regard to your particular circumstances and interests only. Our work must not be relied upon by any third party unless this has been discussed with us in advance and we have agreed to that in writing. If a third party does rely on such work without our prior written consent, we shall not be liable for any loss, cost or expense to you or the third party as a result of that reliance.

Governing law

These terms are governed by the law of New Zealand and by using our services you submit to the exclusive jurisdiction of New Zealand courts.

Collection costs

You will pay all legal and debt collection costs that we may incur, including solicitor and own client costs, in enforcing or attempting to enforce our rights under these terms of engagement.

Confidentiality and privacy

We regard client confidentiality as of paramount importance. We will not disclose any confidential information obtained from you to any other person, and will not disclose to you any confidential information received from another client or prospective client, unless required by law or by the Rules of Conduct (chapter eight), or as otherwise in accordance with the terms of our privacy policy. Our privacy policy can be viewed on our website. You consent to us processing personal information in accordance with our privacy policy.

Online credit card payments

Our business is owned in New Zealand and trades under the name of Cavell Leitch Limited. This name will appear on your bank statement if you make an online credit card payment to us.

All invoices and payments are to be in NZD currency unless otherwise agreed by us with you in writing.

Payments by credit card or debit card attract a merchant service fee which is charged to our firm. This charge will be added to all EFTPOS transactions at a rate of 1.5%. For this reason EFTPOS payments should only be used for payment of our fees only and not for the transfer of money into our trust account (trust monies) for payment by our firm to others on your behalf.

Trust monies should be paid to us by direct credit into our bank account ensuring that the funds will clear in time for us to pay out on them. Where any trust monies are received from you by credit card payment we will deduct the merchant service fee from the amount received.

Refunds of credit card payments will be made when there has been an accidental overpayment less the merchant service fee payable.

Principals at Cavell Leitch Limited

Cavell Leitch Limited trades as a company and not as a partnership. If a person is employed as a principal, that term indicates that that person is a leader in the field in which they practice; as an employee a principal is neither jointly (with others who are employed as principals) nor severally responsible for the debts or other obligations of Cavell Leitch Limited.

Details of the directors of Cavell Leitch Limited can be found on the Companies Office website.

Completion

We will inform you when your matter is completed and provide you with a summary of our work if we have not already done so. Where appropriate we will also draw your attention to any future action that may be required.

Professional Indemnity Insurance and the Lawyers Fidelity Fund

In accordance with industry standards and for your protection our firm is covered under a Professional Indemnity Insurance policy to the level required by the Law Society. This policy applies where a member of our firm acts in their professional capacity as a barrister or solicitor. As with all insurance this cover has limitations and is subject to certain exclusions, terms and conditions.

Also, the Lawyers’ Fidelity Fund provides cover of up to $100,000 in certain circumstances, generally excluding investment monies.

Limitation of Liability

To the extent permitted by law, our total liability to you (and if there are two or more of you, then all of you) in relation to any matters (or series of related matters), including interest and costs , on which you engage us is limited to the lesser of:

1. The sum of $2,000,000; or
2. An amount equal to five times the professional fees (excluding office service charges, disbursements, and GST) which we have invoiced you in relation to the matter (or the series of related matters) where those fees have been paid.

We will not be liable to you for any loss or damage caused by information or advice provided by any third party or public register, including to the extent our advice relies on such information.

This limitation applies to liability of any kind, whether in contract, tort (including negligence), equity or otherwise which arises from any aspect of our involvement in any matter, including the provision of professional services, the use, storage, transmission of data or information or the use of any electronic communications.

Complaints

If you have any concerns or complaints that you prefer not to raise with the team member handling your matter then please contact Craig Graham, our General Manager, personally on 03 339 5602 or at craig.graham@cavell.co.nz. We are committed to resolving any issues as soon as possible.

If you have not resolved the matter with your lawyer and you want to discuss it, the New Zealand Law Society’s Complaint Service can be contacted by phone 0800 261 801 or by emailing complaints@lawsociety.org.nz.