Foley Douglas Limited
Terms of Engagement
1.Purpose of our Terms of Engagement
1.1We are an incorporated law firm operating under the company Foley Douglas Limited (Foley Douglas).
1.2Foley Douglas is the trading name (Trading Name) of Foley Douglas. Foley Douglas also owns a prior trading name ‘iCLAW’.
1.3Our Terms are a necessary component of our engagement with you as a valued client of Foley Douglas. Our Terms contain key terms that apply to the way we will communicate with you, what we, and you, can and cannot do, the duties we owe you, how we will charge you, and what happens if our relationship comes to an end.
1.4Following initiation of our engagement process with you, your acceptance and agreement to our Terms is confirmed by through our onboarding processes, or otherwise, by instructing our team to proceed by way of a return email. In some instances, we may require acceptance of our terms by written signed agreement, often in an electronic form, also known as a “click through” agreement (Clicking Agree). Either way, by instructing our team through email, or by Clicking Agree to our onboarding agreements, you are confirming that you have read, understood and are accepting our Terms, together with any other terms associated with our services and your instructions. If you have any questions or concerns about these Terms, please contact us before accepting or Clicking Agree.
1.5Our Terms apply to any piece of work (Work) that you ask us to do for you (current and future). These Terms are available on our Website, a link to which will be provided to you at the commencement of our working relationship (via our letter of engagement). We may update these Terms periodically. Material changes will be notified to you directly or through our usual communication channels. Your continued instruction of Foley Douglas after such notification will signify your acceptance of the updated Terms.
2.Our Services
2.1The Work that we will do for you will be outlined in emails, and often, more formally in a letter of engagement, retainer, or specific service level agreement. The Work we do for you may be altered by the exchange of emails that we send to you, along with any further instructions that you provide to us verbally or in writing (or that we record in writing for the purposes of confirmation of our understanding of your requirements).
2.2We will aim to complete Work for you at a price that reflects the complexity and urgency of the Work, the level of experience and technical ability of the individuals required to complete the Work, and any expectations or agreement recorded with you. To do so, we may delegate to other professionals within the firm and, in some instances, to external colleagues (such as Barristers or other specialists). We will ensure that a senior member of our team oversees all Work, and that you will only ever need to communicate with people that you know and trust.
2.3In engaging our services, you agree to provide us with accurate and complete information in a timely manner, and to respond promptly to our requests for instructions or documents.
2.4Where we act for you on matters that emerge from or include the laws of another country, you agree that we do not accept any responsibility for your compliance with or liability under the laws of that other country. In these instances, we will (if you ask us to do so) seek advice on your behalf about your rights and obligations under such foreign laws and the terms of engagement with that adviser in that other country will apply to any such advice.
3.Limitation on our Services
3.1Any limitations in the scope of our engagement or retainer in respect of our Work will be stipulated in our letter of engagement.
3.2We do not provide investment, financial, or specialist tax advice or valuation services. Our services will not include the provision of that advice or any other matters that we advise you are to be excluded from any scope of work or retainer (from time to time), either by writing to you as part of our advice, or pursuant to any limitation published in relation to our services on our Website, or via these Terms.
3.3If you require finance over a property or insurance over a building or asset, we recommend you seek specialist financial or insurance advice, confirming such can be obtained as soon as possible. We are unable to give financial or insurance advice or confirm that a finance or secured insurance product will be available.
3.4Where we recommend that you seek any specialist advice as highlighted in this clause, and you elect not to do so, you agree that we are not liable for any loss you may suffer.
3.5When we complete our Work for you, our retainer with you will come to an end, and unless otherwise agreed, we will not be obliged to notify you of any subsequent changes in law, or to provide any further services in relation to the Work, without prior consultation, instructions and agreement from you.
4.Authority to Act
4.1We have the usual authority of a lawyer to act on your behalf in relation to each instruction we accept from you, including to incur any necessary expenses on your behalf to complete the Work. For example, our authority to act may require us to incur disbursements, including transfer or court fees, engage law firms in other regions, Barristers, or other specialists. In the event we are required to incur such charges beyond any retainer held on your behalf, we will notify you and where required seek deposit of a suitable retainer to cover the costs of same. Any costs we incur on your behalf for such expenses will be included in your Fees.
5.Our Fees and Charges
5.1Our fees (Fees) are charged in accordance with the guidelines set in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Lawyers Rules) and calculated by our hourly rates. In setting our Fees, we will assess and into take account (amongst other things) the following:
(a)Any Fee Estimate guidelines, together with any Fee Estimate we may have provided;
(b)The time and labour expended;
(c)The skill, specialised knowledge, experience, ability, reputation, and responsibility required of the professional staff required to perform the services relating to the Work properly, efficiently, and in accordance with the Lawyers Rules;
(d)Our experience in carrying out the Work, and setting Fees for that Work;
(e)The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
(f)Any Limited Retainer Agreement or Special Fee Agreement (including a conditional fee agreement) entered between us and you;
(g)The importance, value or outcome of the matter including, if applicable, the results achieved;
(h)The degree of risk assumed by the us in undertaking the Work, including the amount or value of any property, finance or insurance risk involved;
(i)The complexity of the matter and the difficulty or novelty of the questions involved;
(j)The possibility that our acceptance of the Work or any particular retainer will preclude our engagement of work with other clients;
(k)The reasonable costs of running a practice; and
(l)Fees, Disbursements, AML Service and Office Service Fees customarily charged in the market and locality for similar legal services.
5.2Fee Estimates: We may provide you with an estimate of our Fees and costs (Fee Estimate) in our initial engagement with you. Any Fee Estimate will be based on the information you provide, the scope of the Work, and the information we have available to us at the time. A Fee Estimate is an estimate only. If your instructions or the circumstances surrounding your Work changes, so may our Fees. Where possible, we will advise you if we need to revise our Fee Estimate as soon as possible. Any Work we complete that falls outside the initial scope of work you have asked us to do (and therefore outside the Fee Estimate) will be charged on an hourly rate basis as set out at in these Terms – “How we Calculate our Fees”.
5.3Fee Estimate Assumptions: The following is a non-exclusive list of our general assumptions in setting any Fee Estimate:
(a)That your instructions are complete, providing us with all relevant information, and accurately describing our role and involvement;
(b)That the matter proceeds and will be completed in an ordinary manner, as anticipated in your instructions and within any indicated timeframe, or otherwise within a usual timeframe for that type of work;
(c)That you will, in a timely and efficient manner, respond and provide any information or instructions required by us to complete the Work, and communicate with us in an effective manner, via our ordinary methods of communication;
(d)That no unforeseen impediments, issues, or surprises arise that require additional work not accounted for in your initial instructions;
(e)That you follow any instructions or advice that we provide to you that is directly linked to the Work we perform, and the outcome of matters for you;
(f)That the Work can be completed during normal business hours; and
(g)That any third parties and other lawyers, accountants, lenders, business advisers involved in the matter are co-operative and reasonable;
(h)That any consents and/or approvals, or transaction critical information and/or documents are provided or received by us in a timely manner and will not involve protracted negotiations; and
(i)That no proceedings, objections, or applications are brought that have not already been anticipated by you or us on your behalf.
5.4Additional Fees: Any Work you ask us to do outside the scope of any Fee Estimate, a Limited Retainer Agreement or Special Fee Agreement will be charged for separately on a time in attendance basis.
5.5Limited Retainer Agreement: A Limited Retainer Agreement will be provided in circumstances where we explicitly limit the Work we will do for you based on a written agreement with you. A Limited Retainer Agreement will be recorded in writing and be clearly labelled as a ‘Limited Retainer Agreement’. There are limited circumstances in which we can agree to a Limited Retainer Agreement. We recommend that you discuss with us the exact nature of the Work and the way it is to be undertaken to establish whether a Limited Retainer Agreement is available.
5.6Special Fee Agreement: A Special Fee Agreements can be made to meet the requirements of a transaction. These can include success fees, fixed fees, and capped fees for specific work outcomes. There are limited circumstances in which we can agree to a Special Fee Agreement. We recommend that you discuss with us the exact nature of the Work and the way it is to be undertaken to establish whether a Special Fee Agreement is available.
6.How we Calculate our Fees
6.1Our Fees and charges will be calculated based on the time spent on a task, calculated at our ordinary hourly rates, plus Disbursements, AML and Office Service Fees, and GST (as applicable).
6.2Our ordinary hourly rates (excluding GST) are as follows:
| Role | Ordinary Hourly Rate (excluding GST) |
| Directors & Partners and Consultants | $550.00 – $650.00 per hour |
| Senior Associates | $475.00 – $550.00 per hour |
| Associates | $425.00 – $475.00 per hour |
| Senior Solicitors & Senior Registered Legal Executives | $375.00 – $425.00 per hour |
| Solicitors | $300.00 – $375.00 per hour |
| Legal Executives | $300.00 – $375.00 per hour |
| Law Clerks | $250.00- $300.00 per hour |
| Legal Administration & Research Assistants | $100.00 – $250.00 per hour |
| AML Compliance | $200.00 per hour |
| Trust & Finance Administrator | $150.00 per hour |
6.3Hourly Rate: Time spent is often recorded in 6-minute units, rounded up to the next unit of 6-minutes. Where work is undertaken on an hourly basis (which is not always the case), the hourly rate of the people we expect to undertake the Work will be set out in our letter of engagement or email instructions with you, or otherwise, in these Terms. The differences in hourly rates reflect the experience and specialisation of our professional staff who may work on your files or be required to complete your Work.
6.4Urgent Work: Where the Work must be completed urgently or outside of ordinary business hours, our Fees may incur an increase in our usual hourly rates (Urgency Surcharge). The Urgency Surcharge reflects an additional charge of $100.00 plus GST per hour and will be added to the ordinary hourly rate for each person performing the Work. We will advise you of the applicability of an Urgency Surcharge prior to receiving your instructions and before commencing or continuing the Work. The decision to apply an Urgency Surcharge is at our discretion.
6.5Other Staff: We may, during your matter, determine that the Work requires assistance from professional staff, who were not identified in our original letter of engagement or email instructions with you. Any differences in the hourly rates applicable to those staff members will reflect the distinct levels of experience and specialisation of our professional staff; the level of urgency for turnaround, and where work is necessarily undertaken after hours to meet your instructions or deadlines. Your instructions may also require assistance from our Administration and AML Compliance Team; where required, the ordinary hourly rates of those staff will apply as set out in these Terms.
6.6Rate Changes: The hourly rates for our staff are reviewed quarterly and may change during our Work with you. Any revised hourly rate will apply to your matter form the date of the change to these Terms. You are entitled to disclosure of our current hourly rates, by request, at any time.
7.Office Service Fee, Disbursements, and other Charges
7.1Office Service Fee: We may charge an Office Service Fee to cover costs associated with opening and maintaining your electronic and/or physical file. This includes expenses such as photocopying, printing, access, subscriptions, use of internal and external electronic search portals and services, document production, and data expenses. These administrative costs are not included in our Fees, nor are they charged as Disbursements, but are necessary for completing your Work. The Office Service Fee is charged based on the nature of the matter and the Work involved and typically ranges from $75.00 to $95.00 plus GST per file, billed on a per-invoice basis. In the case of multiple invoices on a single file, we reserve the right to remove or reduce the Office Service Fee on subsequent invoices.
7.2Disbursements: Disbursements are out of pocket expenses and external charges that we may incur or be required to incur on your behalf, in relation to your Work, that we on-charge to you, based on the type and nature of your file, instructions, and the Work completed. Disbursements can include items such as:
(a)LINZ Title Search fees;
(b)Registration fees;
(c)Court filing fees;
(d)Bank fees;
(e)Legal fees charged by third party advisers (barristers, valuers, accountants, and tax advisers);
(f)Travel charges;
(g)Postage and courier charges; and
(h)Costs of experts.
7.3A detailed breakdown of Disbursements will be provided upon request. If we are required to expend significant amounts on Disbursements or other external costs, we may request you pay these to us in advance by way of a deposit.
7.4We reserve the right to require a deposit and pre-payments as security for our Fees and Disbursements (Deposit Retainer). We may require payment of a Deposit Retainer at any time, and where practical, on reasonable notice to you. A Deposit Retainer maybe required to cover our future Fees and anticipated Disbursements depending on the nature of the Work, or to meet the requirements of or to a third party, including another lawyer or a Barrister. We reserve the right to request a Deposit Retainer where you are a new client to the firm or have an overdue account or a specified payment history with us.
7.5The Work we do for you will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on all Fees, Office Service Fees (including AML Service Fees) and other charges. Disbursements will be charged on a GST inclusive basis.
8.AML Service Fees & Compliance Procedures
8.1We are required to comply with the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML Act), together with the Financial Transactions Reporting Act 1996, which requires us to collect information from you and to retain such information required to verify your identity. To comply with these obligations, we may ask you to provide us documents verifying your identity and illustrate compliance. We will retain copies of these documents in accordance with AML Act, our Terms, our privacy policies, and the law.
8.2Specifically, where your instruction include Work considered a ‘captured activity’ under the AML Act, we may also perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the services relate as we consider to be required by law. This means we may require various levels information about you and your transaction (called ‘client due diligence’ or ‘CDD’ or ‘enhanced client due diligence’ or ‘ECDD’). The CDD or ECDD we require may change and be require updating depending on the nature of the matter or transaction, its progress, your instructions, and the nature of the client (e.g., a company, trust, or private individual).
8.3We are committed to charging a fair and reasonable fee for the time invested in conducting CDD or ECDD as set out in these Terms, and as required by law. Where we need to conduct CDD or ECDD as part of your transaction, we will charge you our Standard AML Service Fees, and where applicable, for any Additional AML Attendances, as set out below.
8.4Our Standard AML Service Fees are:
(a)$100.00 plus GST per NZ individual;
(b)$250.00 plus GST for a NZ Trust (based on two (2) individual trustees and one (1) corporate trustee);
(c)$250.00 plus GST for a NZ Company (based on commonality for two (2) directors & shareholders); and
(d)Additional parties for a NZ Company or NZ Trust will be charged on a per extra individual basis at a rate of $100.00 plus GST per extra individual.
8.5Additional AML Attendances: Sometimes additional attendances are necessary for us to comply with the requirements of the AML Act or to obtain ECDD. Where further attendances are required to obtain ECDD we will charge our time for Additional AML Attendances on a time spent basis. The hourly rate for attending to these additional attendances will be calculated with reference to our standard ordinary rates and will ordinarily be completed by our AML Compliance Administration team at a rate of $200.00 plus GST per hour. Where assistance is required from our legal team, we reserve the right to charge based on our ordinary hourly rates, and subject to any Urgency Surcharges, as set out in these Terms.
8.6Reporting Obligations: We are required by the AML Act to report to the NZ Police Financial Intelligence Unit (FIU) all international wire transfers/electronic transfer of funds equal to or above NZ$1,000 paid into or paid out of our trust account to/from a bank or financial institution outside of New Zealand – Prescribed Transaction Report (PTR). We will charge you $150.00 plus GST (PTR Administration Fee) for each PTR we are required to file.
8.7Our AML Service Fees, including any PTR fees, may be adjusted if required by changes in regulatory obligations or the introduction of external out of pocket expenses. Where possible, we will notify you of any such changes occur during our Work or engagement with you. Any revised costs apply to from the date those charges are introduced or otherwise where changes are made to these Terms, or when they come into effect pursuant to any law.
9.Invoicing & Payment of our Fees
9.1Our invoices are payable within seven (7) days of the date that an invoice is issued to you, unless alternative arrangements have been made with our Accounts Team. In the event we are holding monies in trust for you, or we are receiving monies for you, for example in completing property transactions, you authorise us to deduct payment of our invoice from funds held or received, as payment by deduction on completion of settlement for you. All property transactions require payment by deduction on completion of settlement, unless otherwise arranged with our Accounts Team, with director approval.
9.2We raise invoices for our Fees monthly, or on an interim basis, and otherwise on completion of the Work or on termination of our engagement with you. We may also send you an invoice when we incur significant Fees or Disbursements, undertake a significant amount of Work over a brief period, reach a key milestone, or require upfront payment of a Deposit Retainer.
9.3Payment of our invoices may be made by direct credit to our trust account, the details for which will be set out in our invoices, or otherwise, by credit card via the payment portal on our Website. Invoice numbers or client name or number is required when referencing all payments.
9.4Credit card payments are made through a third-party supplier (Stripe Inc – www.stripe.com) who charge you a small percentage of each payment as a transaction fee. If you choose to pay by credit card, you agree to Stripe’s privacy policy and terms and conditions of payment.
9.5If you are having difficulty in paying any of our invoices, please contact our Accounts Team promptly so that we may discuss alternative payment arrangements. Payment arrangements may be agreed from time to time both directly, and via third-party service providers, where you meet their credit terms. Please contact our Accounts Team to seek out payment arrangements available that we can offer or assist with to make arranging on your behalf.
10.Interest and Recovery of Costs
10.1Where payment of any invoice is not made by the due date, we reserve the right, without prejudice to any other remedies available to us, to:
(a)Charge interest on the outstanding amount calculated at a rate of 15% per annum, applied monthly on the principal amount of the overdue invoice, for the period that the invoice is outstanding until payment is received. Interest will be calculated on the unpaid principal only and will not be compounded. If the debt is referred to a debt collection agency, interest will be paused from the date of referral until recovery is completed; and/or
(b)Recover from you all costs and expenses incurred in collecting or attempting to collect any overdue amount from you, including but not limited to debt collection agency fees, enforcement costs, and legal costs on a solicitor/own client basis; and/or
(c)Recover all fees and expenses incurred in connection with any enforcement action, including any proceedings issued for recovery of the debt from you, including at our rates as outlined in these Terms; and/or
(d)Suspend or stop work on any matters in respect of which we are providing services to you until all outstanding amounts are paid in full; and/or
(e)Require payment of our Fees in advance as a Deposit Retainer, or other security before recommencing work.
(f)If recovery by the debt collection agency is unsuccessful and we commence enforcement action (including court proceedings), we reserve the right to reinstate and invoice for all outstanding fees and interest accrued up to the date of referral, and to add any further costs, expenses, and interest in accordance with these Terms to the amount claimed in such proceedings.
(g)In the event that we are required or requested to close or withdraw your debt from our debt collection agency, we reserve the right to on charge to you the closure fee of no more than 7.5% of the outstanding balance at our discretion
10.2You authorise us to disclose information about you to any solicitor, debt collector or debt buyer, court, or tribunal for the purposes of recovering any overdue amounts if you default on payment under these Terms.
10.3Any interest invoices and statements will be issued to you monthly, reflecting interest calculated on the principal amount of any overdue invoice, until payment is received or the debt is referred to a debt collection agency. Interest will be paused from the date of referral to a debt collection agency, and may be reinstated if further enforcement action (including court proceedings) is required in accordance with these Terms.
11.Liability for Payment
11.1Each client named in our letter of engagement and as otherwise recorded on our file is jointly and severally liable to us under these Terms either as a principal debtor or guarantor.
11.2Depending on the nature of the work, you may expect to be reimbursed by a third party for our Fees and costs, and although our invoices may, at your request or with your approval, be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.
11.3Where a client is a company, then each person who agrees to these Terms, on the company’s behalf, will be required to explicitly confirm for and on behalf of the company as client an acknowledgement that he or she has asked us to supply services to the company, and, in consideration of us supplying services to that company, agrees in their personal capacity, pursuant to these Terms:
(a)To guarantee the company’s payment to us of all Fees and invoices (from time to time) it owes;
(b)That he or she can be treated by us as a principal debtor for all Fees and invoices; and
(c)To indemnify us against all costs, losses, and liabilities we incur or suffer where the company fails to pay us that money in accordance with these Terms, including but not limited to these Terms – “Interest and Recovery of Costs”.
11.4Guarantee: Any guarantor(s) named in our letter of engagement, client profile form, or onboarding documents (each a “Guarantor”), by confirming acceptance of these Terms, either electronically or by signed agreement, unconditionally and irrevocably guarantees to us the due and punctual payment of all amounts payable by you to us under these Terms, including any incidental or additional amounts arising from related matters. If there is more than one Guarantor, the liability of each Guarantor is joint and several (meaning each Guarantor is liable for the full amount, not just a share).
11.5Each Guarantor acknowledges and agrees that, although as between you and the Guarantor they may be a guarantor only, as between the Guarantor and us, the Guarantor is liable to us as a principal debtor jointly and severally with you. We are not required to first demand payment from or enforce payment against you before seeking payment from the Guarantor.
11.6No release, delay, waiver, or other indulgence given to you or any variation of these Terms will release, prejudice, or affect the liability of any Guarantor under this guarantee.
12.Fee Disputes
12.1If you wish to dispute any invoice, you must do so promptly in writing to us before the due date for payment of the invoice, specifying the grounds for the dispute in reasonable detail and setting out the amount you consider is due, or remedy proposed.
12.2By the due date for the invoice, you must pay us the amount you have stated to be considered due, together with the balance you have disputed (Disputed Balance), to our trust account. The Disputed Balance will be held by us in trust and applied in accordance with the resolution of the dispute over the invoice.
12.3If you do not follow the above steps, you are deemed to have accepted that the invoice is payable in full. Any dispute will be dealt with as a complaint using the procedures set out in these Terms, or as otherwise prescribed by the Law Society.
13.Trust Account Compliance & Procedures
13.1We maintain a trust account for all funds which we receive from clients (except monies received for payment of our invoices). If we are holding significant funds on your behalf, we may lodge those funds on interest bearing deposit with our bank if it is reasonable and practicable to do so and you have, to the banks satisfaction, provided any information or completed any requirements they may have. We may charge an administration fee of up to 7% of net interest earned on funds held or an on-call basis, and up to 15% of net interest earned on funds placed on term deposit, or as otherwise directly arranged with you.
13.2Where you deposit funds to our trust account for the purposes of a Deposit Retainer and/or for the purposes of Fees or Disbursements (including where we are instructing a Barrister or a third party, on your behalf), you agree, authorise and instruct us to deduct from the Deposit Retainer any Fees, Office Services Fees, charges, or Disbursements for which we have provided and issued to you an invoice, and otherwise pursuant to any terms of engagement.
13.3Where we act for you across multiple matters, we may open separate trust accounts in your name and hold separate trust funds for each matter. Where this happens, you authorise us to transfer funds between separate trust accounts open in your name, as and when is required, where there are insufficient funds held in a matter to cover an outstanding invoice.
13.4If funds are transferred to our trust account from you or for your benefit, in a foreign currency, we will convert those funds into New Zealand dollars at the prevailing exchange rate offered by our bank, unless expressly instructed otherwise. We are not responsible for seeking or obtaining a better exchange rate from any other bank or financial institution. Any bank fees incurred in relation to the receipt of funds from outside of New Zealand or on the exchange of a foreign currency into New Zealand dollars are for your account.
13.5You acknowledge that, before we can conduct a trust account transaction for you, we may be required by law to obtain information about you, which may include the verification of your identity or the identity of any person who controls you. In addition, our bank is required by law to obtain certain information about you if you conduct a trust account transaction with us, including in connection with the requirements of the Foreign Account Tax Compliance Act (USA) and/or the OECD’s Common Reporting Standard. You consent to the disclosure of all such information by us to our bank, to the Inland Revenue Department and to any other person or authority to whom we may be required by law to make such a disclosure, and you waive any right you may have to be advised of such disclosure. You must provide all such information on request. We will have no liability to you if we cannot conduct a trust account transaction because you have not provided us with the required information to our satisfaction.
13.6In making any trust account transaction for you, we may rely on any instruction purporting to be signed by you or on your behalf or otherwise given by you (including email instructions that appear to be sent by you or by a person on your behalf). We will endeavour to but are not required to verify beyond doubt any such instructions. Payments out of the trust account will be made either to you or to others with your authority.
13.7We have no liability to you for the loss of any amount deposited with us by you or on your behalf where the loss results from the insolvency, restructuring, act, omission, neglect, delay, or default of a financial institution.
13.8A 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 to you periodically and at any time upon your request. Your records will be kept for a period up to at least six years from the date of the last transaction.
13.9Our trust account records are not protected by legal privilege. This means that such records, including accounting entries, bank statements, and related documentation, may be considered non-privileged and may be disclosed or produced in response to legal, regulatory, or other investigations or proceedings. While certain communications regarding the trust account may be protected by legal privilege, the trust account records themselves, as financial or transactional documents, do not benefit from such privilege and are subject to disclosure unless protected by specific confidentiality obligations or statutory protections.
14.Unclaimed Funds Policy
14.1If we hold in our trust account on your behalf, more than NZ$5.00 but less than NZ$50.00:
(a)We will attempt to contact you by email and/or phone to obtain your instructions regarding return of your funds; and
(b)If we are unable to reach you or if you do not provide written instructions, you authorise us to pay such funds to a charity of our choice.
14.2Where the amount held on your behalf is NZ$5.00 or less, and those funds are held without instruction from you, for no less than three (3) months, you authorise us to pay such funds to a charity of our choice, without first contacting you in relation to those funds.
15.Fidelity Fund
15.1The New Zealand Law Society administers the Lawyer’s Fidelity Fund and provides you with some protection against theft of your money (up to NZ$100,000) if your money is held by us in our trust account or in an interest-bearing deposit account. However, this protection will not apply where you have instructed us to invest your money in an investment that is not included in the cover of the Lawyer’s Fidelity Fund (investments not covered include, but are not limited to, the purchase of shares on a stock exchange or the deposit of funds for investment purposes).
16.How we will Communicate with you
16.1When we start working with you, we will obtain your contact details, including email addresses, postal addresses, and telephone numbers via our onboarding processes. We are a modern firm and so we prefer to communicate via email, telephone, and text (though we are always happy to meet in person). It is over to you to let us know if your details change. Though every now and again we may make contact just to check you are still using the addresses and numbers you provided when you first engaged us.
16.2We will communicate with you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the Work being undertaken.
16.3We will make a concerted effort to report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the Work being undertaken. We welcome your contact to discuss progress with your work.
16.4Unless otherwise agreed with you, we may always communicate with you by electronic communication (email). Email and electronic transmission of confidential or privileged documents or advice is a convenient method of delivery. However, internet mail is not secure, and any communication of documents transmitted may be interfered with, contain computer viruses or other defects and we may not be successfully replicated on other systems. We will not be liable for any copying, recording, reading or interference by others during or after a transmission, for any delay or non-delivery or for any damage caused in connection with a transmission.
16.5If you have any doubts about the authenticity of any communications or documents purportedly sent by us, please contact us immediately.
16.6We have been known to come across or write some interesting articles and literature that may be relevant or of interest to you. If we think something we have seen or written might be worth a look (including our newsletter), we will send it to you. We will use the information that we collect from you to deliver these articles or items of interest. If you would prefer, we do not contact you in this way, just let us know.
17.Duty of Care
17.1Aside from our overarching duty to the Court, our duty of care is to you and not to any other person. Accordingly, we owe no liability to any other person, including for example any directors, shareholders, associated companies, employees, or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Work or who may rely on any advice we give, except as expressly agreed by us in writing.
17.2Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
17.3Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by you or third parties.
17.4Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability.
17.5Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for a reason beyond our reasonable control, and we will not be liable for any damage or loss caused.
18.Conflict of Interest
18.1We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Lawyers Rules. This may result in a situation arising where there is a risk of a conflict of interest arising. We have procedures in place to 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 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (The New Zealand Law Society Rules).
18.2Our acting for you does not restrict us from acting on separate matters for other clients, by reason only that their commercial or legal interests may differ from yours.
19.Commercial Competitors
19.1Subject to the Law Society’s Rules of Conduct and Client Care for Lawyers:
(a)We may accept instructions from other clients or potential clients working in the same or competing markets and who’s commercial (but not legal) interests’ conflict with your interests. This may include acting, on a non-exclusive and confidential basis, in a transaction or matter for other clients; and
(b)You consent to us not disclosing to you any information we hold for any other client.
20.Fair Trading Act 1986 and Consumer Guarantees Act 1993
20.1If and to the extent you acquire our services in trade, for the purposes of section 5D of the Fair-Trading Act 1986 and section 43 of the Consumer Guarantees Act 1993, you and we agree to the extent permitted by law that:
(a)You and we are all in trade;
(b)Sections 9, 12A, 13 and 14(1) of the Fair-Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 do not apply in relation to these terms or as between you and us; and
(c)It is fair and reasonable to exclude their application.
20.2Nothing in these terms modifies or negates your rights or remedies in the Fair-Trading Act 1986 or Consumer Guarantees Act 1993 if you have not acquired our services in trade.
21.Confidentiality and Personal Information
21.1We collect and retain information about you as part of providing services to you. We use this information to provide services to you; to inform you of changes in our business; to advise you of matters that we reasonably believe may be of interest to you and to advise you of matters that may impact on the way in which we may in the future provide services to you.
21.2We will hold in confidence (i.e. not disclose) all information concerning you or your affairs that we acquire while acting for you. We will not disclose any of this information to any other person except:
(a)To the extent necessary or desirable to enable us to carry out your instructions;
(b)As agreed by you;
(c)To facilitate our internal and professional administrative processes, including financial and business operations and reporting requirements;
(d)To obtain, maintain, and comply with the terms of our professional indemnity and other insurance policies;
(e)As necessary to protect our interests in respect of any complaint or dispute; or
(f)To the extent required or permitted by law.
21.3Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing services for you.
21.4While we will always seek to comply with our obligations to you, you authorise us to disclose any personal information to third parties for the purpose of providing the Work and any other purposes set out in these Terms.
21.5We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.
21.6You agree that we may store your information in any format we choose at our offices. The information we collect and hold about you will be kept at our offices and/or at secure file storage sites. If you are an individual, you have the right to access and correct this information. If you require access, please contact our Privacy Officer and Managing Director, Aasha Foley.
21.7For more information on how we handle your personal information please visit our privacy policy available on our website.
22.External Information
22.1We often obtain and rely on external information (e.g. from your accountant) or public records (e.g. from a government agency or registry) to carry out your instructions.
22.2This information may not always be accurate, complete, or up to date. We do not accept responsibility to investigate or verify external information or public records and will not be liable for any damage or loss caused by errors or omissions in them.
23.Retention of Documents, Records, and Information
23.1We will keep a record of all important documents which we receive or create for you on the following basis:
(a)We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of Wills);
(b)At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us; and
(c)If you ask us to, we will send copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 2020 or any other law. We may charge you our reasonable costs for doing this (but only if there is a large number of documents to copy or compile);
(d)Where we hold a document that belongs to a third party that you would like to see, you will need to provide us with that party’s written authority to uplift or obtain a copy of that document;
(e)Unless you instruct us in writing not to do so, you authorise us (without further reference to you) to destroy all files and documents in respect of the Work, seven (7) years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer);
(f)We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so; and
(g)We may return documents (either in hard or electronic form) to you rather than retain them.
24.Cyber Security & Data Protection
24.1We take reasonable steps to protect your information from unauthorised access or disclosure. In the unlikely event of a data breach affecting your personal information, we will notify you as soon as practicable in accordance with our legal obligations.
24.2We may store your information using secure cloud-based systems or allow staff to work remotely, provided that appropriate security measures are in place to protect your confidentiality.
24.3We may engage third-party service providers (such as document management or IT support). We take reasonable care in their selection but are not liable for their acts or omissions beyond what is required by law.
25.Use of Software, Technology & AI Platforms
25.1We may use technology, including artificial intelligence tools, to assist in providing legal services. We will not upload or disclose any confidential or privileged client information to such platforms unless it is fully anonymised and we are satisfied that doing so complies with our professional obligations and privacy laws. We confirm that our use of such technology is covered by our professional indemnity insurance.
26.Intellectual Property
26.1We own copyright in all documents and works we create while performing services and in the legal work for you but grant you a non-exclusive license to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt, or use the documents without our written permission. Reproducing any documents may also be dangerous, as we will have provided the documents to you based on your specific requirements which may not be appropriate for use by that third party. We are, however, always happy to help a friend of yours to do the things that we helped you to do; so, feel free just to let third parties know where to find us.
27.Professional Indemnity Insurance
27.1We hold professional indemnity insurance which exceeds the minimum standards set by the Law Society.
28.Limitation of Liability
28.1To the extent permitted by law, our aggregate liability to you (whether in contract, tort, equity, or otherwise) in connection with our Work is limited to the lesser of:
(a)The sum of NZ$2,000,000 (two million New Zealand dollars); and
(b)The maximum amount available to be paid out and actually paid out under the professional indemnity insurance policy held by Foley Douglas at the time the claim is made.
28.2This limitation applies to any and all claims arising out of or in connection with our engagement for a matter (or range of matters) and applies to you and any of your associates or related parties, executors or assigns. We will not be liable for any indirect or consequential loss or damage, or for any loss of profits, revenue, or anticipated savings.
28.3We will not be liable:
(a)In respect of any kind of damage or loss (including loss of profits) relating to any work performed for you; or
(b)To the extent that any damages or loss is caused or contributed to by your conduct or the conduct of your officers, employees, or agents.
28.4If you claim compensation, damages, or contribution from us for loss or damage from acts or defaults (including negligence) on our part and some or all of that loss or damage was due to or contributed by:
(a)Your own acts or defaults or by the acts or defaults of other persons for whose actions of defaults you are responsible; or
(b)The act or defaults of one or more other persons, not being partners, employees, or agents for whose conduct we are responsible, then our liability to you will be several and not joint with these other persons. We will be liable only for that proportion of the loss or damage which our acts or defaults bear relative to the totality of the conduct of all persons causing or contributing to the loss or damage. This applies to the extent permitted by law.
29.Time Limits for any claim against us
29.1Any claim you have against us must be filed within two (2) years after the date of the act or omission on which the claim is based. Otherwise, the claim cannot be filed, and we will have no liability for that act or omission or for its consequences (to the extent permitted by law).
29.2In these terms, “claim” and “the date of the act or omission on which the claim is based” have the same meaning as the Limitation Act 2010.
29.3This time limit overrides the time period under the Limitation Act 2010 and applied regardless of when any fact relevant to the claim was first discovered or able to be discovered.
30.Termination of our Services & Engagement
30.1You may terminate our engagement with you at any time; if you were to do so, we would appreciate knowing why.
30.2We may terminate our retainer in any of the circumstances set out in the New Zealand Law Society Rules or at law, including the existence of a conflict of interest, non-payment of fees and failure to provide instructions.
30.3If our retainer is terminated, you must pay us all fees, disbursements and office expenses incurred up to the date of termination.
30.4Despite any termination, you agree to pay our Fees and disbursements, together with GST, incurred up to termination and for any work we are required to do in relation to the matter after termination. Further, the provisions of these Terms relating to reliance, confidentiality and ownership of information, files, limitation of liability and governing law shall continue to apply after termination.
31.Ethical and Sustainable Practices (ESG and Modern Slavery)
31.1Foley Douglas is committed to conducting its business ethically, sustainably, and with respect for human rights. We strive to integrate environmental, social, and governance (ESG) considerations into our operations and decision-making processes.
31.2We maintain a zero-tolerance approach to modern slavery, forced labour, and human trafficking within our own operations and supply chains. We expect our suppliers, partners, and clients to uphold similar standards and comply with all applicable laws and international conventions aimed at eradicating modern slavery.
31.3Where the Work we undertake for you involves activities or supply chains that may present risks related to modern slavery or other significant ESG concerns, we may, as part of our due diligence or in response to your instructions, request information from you regarding your own policies, practices, and compliance in these areas. You agree to provide such information promptly and accurately.
31.4Unless explicitly agreed in a separate written engagement, our services do not include providing advice on your compliance with ESG standards, modern slavery legislation, or related ethical sourcing requirements. Our role in such matters will be limited to the specific scope of Work outlined in our engagement letter or as otherwise agreed.
31.5We will not be liable for any loss, damage, or liability arising from your non-compliance with any ESG standards, modern slavery legislation, or related ethical obligations, unless such liability arises directly from our negligent provision of specific, agreed-upon advice on such matters.
32.Force Majeure
32.1We are not liable for any delay or failure to perform our obligations due to events beyond our reasonable control, including natural disasters, pandemics, or government restrictions.
33.New Zealand Law & Disputes
33.1Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction. In the event of a dispute between us, we will work with you pursuant to our Feedback and Complaints Process, and in accordance with our duties and rules of professional conduct, to resolve that dispute. If we cannot resolve a dispute with you, the New Zealand Law Society and/or the Courts of New Zealand will hear any disputes that arise between us.
34.Feedback and Complaints Process
34.1Your satisfaction with our Work is fundamental to us and our enjoyment of what we do for a living. If you are ever unhappy with something we have done, a Fee charged or the advice we have provided, we want to know about it and we will not be offended when you raise it. We would love an opportunity to remedy an issue, and if we cannot and you leave us, we really want to know how to avoid the same thing happening again. By the same token, our team love hearing positive feedback and we cherish an opportunity to hear about what we are doing well.
34.2We maintain a procedure for handling any complaints by clients. Any complaint will be dealt with promptly and fairly. You may refer any complaint either to the person who has overall responsibility for your work or to any of our Directors, by:
(a)Letter: Level 2, 286 Victoria Street, Hamilton Central, Hamilton 3204;
(b)Email: [email protected]; or
(c)Telephone: (07) 929 4300
34.3The New Zealand Law Society has a complaints service, and complaints may be directed to:
Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Email: [email protected]
Phone: 0800 261 801
35.Law Society’s Client Care and Service Information
35.1The Law Society’s client care and service information is set out below. Whatever legal services 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 in which 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.
35.2The 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 to the justice system.
35.3If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.