Terms of Engagement
1. Services
These standard terms and any covering letter (“our terms”) together cover everything we do for you.
The services we are to provide for you will be outlined by letter or email.
You do not need to sign anything in order to accept our terms. Simply continuing to use our services will indicate acceptance.
Before we start work for you, however, we need to establish your identity. Like banks and other institutions we are obliged to check the identity of all clients to comply with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
It is important to us that we understand your requirements and expectations. If there is anything about our terms you do not understand – or you have other special requirements – please talk to us as soon as you can.
2. Fees, Expenses and payments on your behalf
2.1 Fees
Clause 9.1 of the Rules of Conduct and Client Care for Lawyers sets out the factors that we will take into account when we work out your fees.
If we have agreed to a fixed fee, we will charge this for the agreed work. 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, time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.
The time recorded will include any initial meeting or meetings and all ID checks and other enquiries we are obliged to or consider we should make before we act for any client.
In addition to fees as above, we also charge an office services fee of $50 per file (plus GST where applicable) to cover costs of setting up your files, forms, postage, toll calls (if any) and retention of your file. If significant photocopying is required, we will charge for this at .17 cents (plus GST where applicable) per page (black and white) and .35 cents (plus GST where applicable) per page (colour).
If a director or employee of Greg Kelly Law Limited acts as executor or trustee, a trustee responsibility fee may be charged in addition to any fee for legal services (if permitted under the terms of the will or deed). The factors referred to in paragraph 2.1.1 will apply.
We charge commission of 5% on the gross interest earned on funds held on deposit through our trust account.
2.2 Disbursements and expenses
In providing services we may incur expenses or have to make payments to other people or organisations on your behalf. These will be included in our invoice to you when the expense is incurred.
These expenses include any accommodation and travel costs connected with the work we do for you – for example airfares, taxis and use of private motor vehicles (at IRD rates).
These expenses also include expenditure incurred when making any checks or enquiries in order to comply with our legal obligations when you instruct us to act for you.
Our policy is to require money, in advance, to cover disbursements such as court filing or service fees.
2.3 GST (if any)
Goods and Services Tax is payable by you on our fees.
2.4 Invoices
We will send interim invoices to you, usually monthly, and on completion of the work or termination of our relationship. We may also send you an invoice if we incur a significant expense.
2.5 Payment
You must pay our fees and expenses within 14 days after the date we send you an account. Sometimes we may ask you to pay money in advance or to provide security. If so, we will hold your payment in our trust account and deduct our fees and expenses when we send you an account. We reserve the right to charge interest on accounts not paid within two (2) months at a rate of 1.5% on the balance of accounts outstanding at the end of each month.
If you pay an invoice by credit card a surcharge of not less than 2.75% will be added to offset the commission charged by the credit card provider.
In order to minimise the risk of cyber crime, we require you to call us to verify our bank details before paying funds into our trust account; we will also call you to verify your bank details before paying money out.
2.6 Deduction of fees and disbursements
You authorise us:
to debit against amounts pre-paid by you; and
to deduct from any funds held on your behalf in our trust account any fees, expenses or disbursements for which we have provided an invoice.
2.7 Third Parties
Although you may expect someone else to cover our fees and expenses, you will still remain responsible for payment to us if the other person or organisation fails to pay us, even if you have asked us to send the invoice to that other person or organisation.
3. Confidentiality and Privacy
When we engage you as a client we will collect[1] personal information[2] from you.
[1] We may collect this information from you directly, but may also collect personal information from publicly available sources or external third-party providers.
[2] Personal information means identifiable information about a person and may include, name, address, contact number, email address, billing information and any communication information you provide to us through our website or social media accounts, photo identification that identifies your nationality, date of birth, occupation as well as documentation that identifies your New Zealand residency status (e.g. visa or citizenship status), your criminal history, financial related information (e.g. tax details, bank details, assets and liabilities) or any other information that may be required to carry out your engagement. If you are an organisation this may include holding information about your personnel and organisation structure.It may not be possible for us to carry out your engagement with us if you do not provide us with the personal information that we request from you, and any delay in providing this personal information may prevent us from starting your work.
We will treat all information we hold about you as private and confidential. We will not share any information we hold about you, unless:
we are required to do so by law, in order to comply with our obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, or under the Rules of Conduct and Client Care for Lawyers; or
we need to, so that we can carry out our work for you; or
you agree, or ask us to.
Despite this, we may give information to our bank, or the Inland Revenue or any overseas tax authority, if we believe we are obliged to do so.
By instructing us to act for you in accordance with these terms and conditions, you consent to our collecting, using, and disclosing your personal information for the following purposes:
Comply with our legal obligations;
Represent and advise you as our client or to represent and advise our client if you are a representative of the client;
Manage any conflicts of interest;
Facilitate internal business proceedings such as sending invoices or making payments to you or on your behalf;
Make contact with you on future issues which may interest you which may include the sending of email updates, function invites, information about the services we offer or anything else we may consider relevant to you;
Verify with third parties and third-party databases (including Government agencies such as NZ Transport Authority, Motor Vehicle Register and the Personal Properties Securities Register) any information that you give us including any information we may collect from other sources about you;
Debt recovery, including appointing an agent to collect any outstanding debts and listing defaults with a credit reporting agency;
Verify with third parties and third-party databases, in order to comply with our obligations in relation to fraud prevention and the Anti-Money Laundering and Counter Financing of Terrorism Act 2009, any information that you have given us including any information we may collect from other sources.
If you have given us your driver licence information, this information may also be disclosed to a credit reporting agency and/or the Ministry of Justice when carrying out any of the activities listed in the previous clause.
If we disclose any of your personal information to a credit reporting agency, that agency may hold your information on their credit reporting database and use it for credit reporting services and for any other lawful purpose. They may also disclose your information to their subscribers for the purpose of credit checking or debt collection or any other lawful purpose.
Subject to the above, confidential information concerning you will as far as practicable be made available only to those in the firm providing legal services to you.
We will not disclose to you confidential information which we have in relation to any other client.
You have a right to access and correct any personal information we hold about you. If you would like to access your information or have any questions regarding our privacy policy then please email office@trustlaw.co.nz or call +64-4-498 8500.
You may also contact:
Office of the Privacy Commissioner (New Zealand): – P O Box 10094, Wellington 6143 | 0800 803 909 | www.privacy.org.nz
Office of the Australian Information Commissioner: – GPO Box 5218, Sydney, NSW 2001 | +61-1300 363 992 | www.oaic.gov.au
4. Further information
If we ask you to do so at any time, you will give us any further information we believe is required so that we can:
give you full advice and carry out your instructions; or
meet our obligations to provide information to our bank or any government body in New Zealand or overseas.
We may refuse to act for you (or to continue to act) if you do not provide this information when requested.
This information may, among other things, include:
certified copies of identity documents such as a passport or drivers licence;
confirmation of where funds have come from; and
deeds and other relevant documents.
5. Who can authorise us to do work
It is important that we are clear about who may authorise us to carry out any work, once we have accepted the initial instruction from you.
If we are doing work for a couple (married or not), either of them may authorise the work.
If we are doing work for a partnership, any partner or officer of the partnership may authorise the work.
If we are doing work for a trust, any trustee may authorise the work.
If we are doing work for a company, any director or employee may give authorisation – or anyone the company allows to speak on its behalf.
6. Termination
You may terminate our authority at any time.
We may terminate our relationship in any of the circumstances set out in the Rules of Conduct and Client Care for Lawyers.
If our relationship is terminated (whether by you or us), you must pay us all fees due and all disbursements and expenses incurred up to the date of termination.
We may suspend (temporarily stop) your work if you have not:
paid our accounts on time;
given us information that we have asked for; or
done something that we have asked you to do.
7. Files and Documents
You authorise us to hold all your information electronically. Your information (about you and about your matter) is stored in Sydney on servers owned by Amazon Web Services Australia Pty Ltd whose address is L37 2-26 Park St, Sydney, New South Wales 2000 and you directly authorise that company to store your personal and matter information.
In addition, Microsoft 365 is regularly backed up and stored at the Sydney IBX Data Centre at 200 Bourke Road, Alexandria, Sydney NSW 2015, Australia, and you directly authorise that storage of your personal and matter information there.
We take all reasonable steps to protect the personal information we hold about you. Our online database storage systems have restricted user access and are managed with password protections and multi-factor authentication. We also have in place confidentiality procedures, undergo staff training on data security and have a secure office location.
Where we do hold paper based files and documents, you authorise us to destroy all files and documents automatically seven years after we finished that job. We may destroy all files and documents earlier, if we keep an electronic copy of them. However, we will not destroy any documents we hold in safe custody for you.
We will own the copyright – and any other intellectual property rights – in the papers and documents we produce for you. However, you have the right to use these documents for their intended purpose provided you have paid our fees.
If you collect your files or documents from us at any time, we may make copies before they are collected.
Before you collect your records, you need to pay our fees for the work we have done for you.
8. Obligations to disclose to banks and others
Because of the laws designed to detect financing of terrorism and money laundering, banks and other institutions have duties to enquire about the source of funds in some situations. Even if we have no reason for any suspicion or concern, we may be obliged to report and provide information to banks and public authorities.
In addition, overseas legislation may mean there is a need to report – for example because of US legislation called the Foreign Account Tax Compliance Act (FATCA) and the associated inter-government agreement signed by the New Zealand government. We will release information required in these situations.
9. Conflicts of Interest
We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises we will advise you of this and follow the requirements and procedures set out in the Rules of Conduct and Client Care for Lawyers.
10. Duty of Care
Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must specifically agree to this.
We may communicate with you and other people by email or some other electronic process. We will not be liable for any damage or loss to your computer system. We will also not be liable for any interference, interception, virus, delay or failure of delivery.
11. Scope of Work
Our primary areas of work are trusts, wills, estates, elder law and enduring powers of attorney. We do not provide advice about:
tax or the tax consequences of any arrangement; or
whether you should buy, hold on to or dispose of any investment or asset.
We will act for you in respect of everything covered by your instructions, whether or not they are given in writing. This includes the usual authority of solicitors to do everything necessary or incidental in order to carry out your instructions.
Our involvement is limited to advice about legal matters under New Zealand law.
If you obtain a specialist report, or some other research such as a Land Information Memorandum (“LIM”), we do not give advice about this. If you believe you should get a specialist report, we can suggest reputable specialists for some types of report, but will not give further advice on that aspect.
12. General
Our terms apply to all current work and also to any future work we carry out for you, whether or not we send you another copy of them.
We are entitled to change our terms from time to time. If we do so, will send you a new document.
Our relationship with you is governed by New Zealand law and New Zealand courts have non-exclusive jurisdiction. Neither you nor we may claim that the New Zealand Courts are not a convenient forum.
Information for Clients
Set out below is the information required by the Rules of Conduct and Client Care for Lawyers
Fees: Unless we have agreed otherwise and in writing, our fees will be calculated on a time basis as set out in our Standard Terms of Engagement. When payment of fees is to be made is set out in our Standard Terms of Engagement.
Professional Indemnity Insurance: We hold current professional indemnity insurance that meets or exceeds the Law Society’s minimum standards. We will provide you with details of the minimum standards on request.
Lawyers Fidelity Fund: The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers with protection against financial loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual complainant is limited to $100,000. Except in certain circumstances, specified in the Lawyers and 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 service or charges, you may refer your complaint to Greg Kelly as the person who has overall responsibility for your work.
If you do not wish to refer your complaint to Greg Kelly, or you are not satisfied with his response to your complaint you may refer your complaint to Matthew Hay of Succeed Legal. Matthew Hay may be contacted by email: matt.hay@succeedlegal.co.nz. Matthew is a lawyer who is not associated with us, and who is experienced in the areas of work that we do. Matthew will independently assess your complaint and work with us to ensure that it dealt with promptly and fairly.
The Law Society operates the Lawyers Complaints Service and you are able to make a complaint to that service. To do so, telephone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.Person Responsible for the Work: Greg Kelly as principal of the firm will carry out or have overall responsibility for the services provided for you.
What we are responsible for: The limits of our liability are set out in our Standard Terms of Engagement and any letter of engagement.
Client Care and Service: The Rules of Conduct and Client Care for Lawyers provide the following client care and service information –
Whatever legal service 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 interests and act for you free from compromising 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 the overriding duties, including duties to the courts and to the justice system: If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.
