Terms Of Engagement
The Terms of Business ('Terms') sent to you together with any engagement letter and any fee estimate, form the initial Contract between Wynyard Wood and you (the 'client'). By continuing to instruct Wynyard Wood you accept these terms and the responsibility to pay our account for work done together with all disbursements incurred in respect of your instructions.
Unless otherwise agreed in writing, any subsequent services performed by Wynyard Wood will be provided by Wynyard Wood on the basis of the Terms. In such cases, references to the Contract and the Services below will be to the Terms and any orally specified services.
Services
Wynyard Wood will provide the services specified in any initial engagement letter or, as subsequently agreed and set out, in any replacement or supplementary engagement letter ('Services'). The Services may include advice and recommendations, but it is understood and agreed that all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by the client. Unless implementation is specified in the engagement letter, Wynyard Wood shall not be liable in any way in this regard. Either Wynyard Wood or the client may request changes to the Services. Each agrees to work together to enable each party to assess the impact of any requested changes on the cost, timing or any other aspect of the Services
Information
The client will provide in a candid, full and timely fashion all information and documents reasonably required to enable Wynyard Wood to provide the Services. Unless otherwise required pursuant to the engagement, Wynyard Wood will have no responsibility to independently verify the accuracy of such information and documents. Wynyard Wood will not be liable for any loss or damage arising from any inaccuracy, incompleteness or other defect in any information or documents supplied by the client.
Records & Files
The workpapers produced by Wynyard Wood in the course of its work in providing the Services are the property of Wynyard Wood. Wynyard Wood shall be entitled to retain its work papers and copies of any documents provided to it in the course of performing its Services. Work papers will also include documents or deeds relevant to your affairs although not necessarily relevant to the Services.
On providing the Services Wynyard Wood will open a file. This file will be stored and kept for at least six years. After that period of time the file may, at Wynyard Wood's sole discretion, be destroyed. If you require the return of any papers sent to Wynyard Wood which ultimately form part of that file, please advise accordingly at the time these are supplied.
It is the client's responsibility to store copies of other documents (eg important contracts) and keep note of upcoming expiry and renewal dates, deadlines etc.
In respect of Deeds or documents, Wynyard Wood reserves the right to retain those Deeds and documents until all monies due for costs, office services or disbursements are paid, even if the monies are due for services unrelated to those documents. Wynyard Wood's position in this regard is contrary to the usual common law position which would otherwise exist.
Confidentiality
Wynyard Wood will not disclose to third parties any confidential information relating to the Services unless either authorised by the client or compelled by law, or as is necessary to provide the Services.
Reporting
Wynyard Wood will report to the client in accordance with the terms set out in the engagement letter.
Fees & Payment
- Either before or after the commencement of the Services, or on any change in the Services, Wynyard Wood may, at its discretion, or will if so required by the client, provide an estimate and/or agree with the client the total fees for the Services.
- All fees charged will be based on the New Zealand Law Society requirement that all professional fees shall be fair and reasonable having regard to the interests of both the client and Wynyard Wood.
- The client acknowledges that in determining what constitutes fair and reasonable fees, having regard to the interests of both the client and Wynyard Wood, a number of factors will be taken into account including not only the amount of time devoted by partners and staff to the Services, but any urgency involved, the amount or value of the money or property involved, the degree of complexity and resulting skill required, the results achieved and any other criteria that are relevant.
- We may, by prior arrangement, agree to limit our fee to a certain level in the form of a quote. Where a quote is given, it is assumed that no unexpected complications will arise. If unforeseen difficulties occur, our fee may have to be altered. Full details will be provided to you.
- The client will pay all out of pocket expenses reasonably incurred by Wynyard Wood in performing the Services. Wynyard Wood uses Turpan Services Limited for searching, registration and filing. That company is owned by interests associated with the partners of this firm and the partners' families.
- If we are holding funds on your behalf, we reserve the right to deduct all moneys owing or outstanding from these funds. A full statement will be provided.
- In the case of most property, loan, commercial or other transactions where there is a specific settlement date, all fees and expenses shall be paid not later than the settlement date. The client authorises the deduction of all fees and expenses from the proceeds of any loan advance or sale proceeds or other monies which may be received or held to the client's credit within Wynyard Wood Trust Account.
- Regardless of the nature or type of Services being provided to the client, Wynyard Wood reserves the right to render interim accounts, in respect of which the provisions of the above paragraph shall apply.
- In all other cases, fees and expenses will be billed monthly unless otherwise agreed, and will be payable within 14 days of the date of the invoice.
- In default of payment when required, the client undertakes to pay late payment fees of 2% per month on any amount outstanding and to indemnify Wynyard Wood and pay all costs and expenses if legal action is necessary to recover any overdue amount. Wynyard Wood may at its discretion require funds to be paid on account before it incurs out of pocket expenses.
- Failure to pay fees on time may, at Wynyard Wood's discretion, lead to suspension of the Services (including Wynyard Wood's right to refuse to settle a property, loan, commercial or other transaction), or termination of the engagement. Wynyard Wood will not accept any responsibility for any consequence of such suspension. All reasonable fees up to suspension or termination shall be and remain payable, notwithstanding the suspension or termination.
Term & Termination
The Contract will continue until all the Services have been provided unless sooner terminated by agreement as set out below. Either party may terminate the Contract by written notice or if the other party fails to remedy a material breach of the Contract. Termination will not affect the client's obligations to pay Wynyard Wood fees for all Services performed up to termination. Any of the terms and conditions of the engagement letter or the Terms that are intended to apply after completion of the Services will continue to apply following termination.
Privacy of Information
To put your instructions into effect, Wynyard Wood may need to collect and hold personal information. Failure to provide us with this information may prevent us from providing services to you or limit the quality of the services provided. Any information collected will be used only to provide legal services, undertake credit management (including making reasonable and confidential credit enquiries) and to keep you informed about legal issues and developments that may be of interest to you. You authorise Wynyard Wood to obtain or release any information necessary for these purposes.
Indemnity
In the event Wynyard Wood becomes involved in any claim (including actual or threatened litigation of whatever form) in relation to the Services, Wynyard Wood will immediately notify the client. The client agrees, to the extent permitted by law, to indemnify Wynyard Wood, its Partners and employees in all respects including its reasonable costs and expenses involved in defending any such actual or threatened litigation. Where legal counsel is retained for these purposes, those costs, will be met by the client. Wynyard Wood will use its best endeavours to agree the quantum of any such costs recognising the need to respond to such litigation on a prompt and reasonable basis. The client agrees to meet the costs of Wynyard Wood for reasonable time incurred by its Partners and staff and any other reasonable costs and expenses in relation to any inquiry or proceeding initiated by any person.
Restrictions
Unless Wynyard Wood has agreed in writing, no advice or information provided to the client is to be made available, directly or indirectly to any third party, or shall be used or relied upon by any third party. Wynyard Wood will have no liability to any such third party. The client indemnifies Wynyard Wood against any third party claim arising from its release of any such Wynyard Wood advice or information.
While we use standard virus checking software, we accept no responsibility for viruses or anything similar in any emails or any attachments originating from Wynyard Wood. We also do not accept any responsibility for any changes to, or interception of, any email or any attachment after it leaves our information systems. The opinions expressed in emails are not necessarily ours or authorized by us.
No Assignment or Benefit
The client may not assign the benefit of the Services to any third party without the written consent of Wynyard Wood. For the avoidance of doubt the sole beneficiary of the Services under this Contract is the client. No other party is intended to take a benefit under the Contracts (Privity) Act 1982.
Guarantee
Instructions from time to time may be taken from companies or other corporate bodies and/or family trusts and/or third party individuals at the client's request. In such instances these Terms will apply to the receipt of such instructions and the client unconditionally guarantees to Wynyard Wood the performance of all obligations expressed or implied in these terms.
Health & Safety
The Health and Safety in Employment Act 1992 obliges Wynyard Wood to take all practical steps to ensure the health and safety of its staff engaged on any assignment. Wynyard Wood and the client will be mutually responsible to ensure the safety of Wynyard Wood staff and to see no harm is caused to them in the client workplace. The client shall ensure that the Act is fully complied with when Wynyard Wood personnel visit client sites. Contact with the client's health and safety representative could involve a safety briefing at the beginning of the assignment, regarding work hazards which Wynyard Wood staff may be exposed to on the client site, management of the hazards, provision of any appropriate equipment, awareness of accident reporting procedures and emergency procedures.
Investment
From time to time Wynyard Wood may receive on behalf of the client various funds and unless otherwise instructed, or the quantum of the funds retained is so minimal as to not warrant investment, all funds will be deposited to the client's credit in an interest bearing deposit account within the Wynyard Wood Trust Account. All interest accrued, less usual Resident Withholding Tax and Accounts Department handling commission at a rate of 5% of gross interest accrued, will be for the credit of the client. Wynyard Wood will at such time as all funds are released to the client provide a statement identifying the sum of all interest received and any deductions made.
Entire Agreement
The Contract described in these Terms, subject to any qualification, conditions, assumptions and reservations set out in any report, forms the entire agreement between Wynyard Wood and the client. No previous discussions, proposals, correspondence, understandings or other communications, whether written or oral, shall have contractual effect subsequent to the engagement letter. Only written variations signed on behalf of Wynyard Wood shall have effect to vary the Contract.
Governing Law
Wynyard Wood and the client agree that the Contract and their relationship will be governed by the applicable laws of New Zealand and submit to the exclusive jurisdiction of the New Zealand Courts.
Fidelity Fund
Should a client suffer any pecuniary loss by reason of the theft by a lawyer, an incorporated law firm or the agent of a lawyer or incorporated law firm, where such loss did not arise from instructions to invest on behalf of the claimant, it may be possible to make a claim under the New Zealand Law Society Fidelity Fund. Strict criteria apply.
Indemnity Insurance
Wynyard Wood holds indemnity insurance that meets or exceeds the minimum standards specified by the New Zealand Law Society.
Any Concerns?
If you are not completely satisfied with us in any way, or have useful suggestions or observations, please contact the solicitor handling your file, one of the partners, or the Practice Manager (or give anonymous feedback to our Practice Manager). For information about your rights, complaint procedures, and governance of the profession, see the websites of the Auckland District Law Society and the New Zealand Law Society.