Terms of Engagement

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:

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Not to be published, quoted or referred to in any public document; and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

You agree that any legal advice given to you by a partner or employee of our firm is given on behalf of our firm and not in their capacity as an individual and that no partner 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 partners or employees is responsible for providing, nor provides, any financial or investment advice in connection with any engagement.

Basis for Charging:
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:

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

Billing
In general we will send you an interim bill (generally monthly) while the work is in progress and a final bill on completion of the matter.

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 attached. 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 2 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
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 agentâ€™s fees, counselâ€™s fees, the fees and disbursements for other lawyers, courier and filing fees, file retrieval fees, searches and taxis where relevant.

Companies and 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.

Collection Cost
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.

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.

E-mail 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
We will keep your files for a ten (10) year period after completion of the matter. Your files will be archived and kept in storage for this period after which they will be destroyed, unless you instruct us in writing to the contrary. Archived files are stored off site in premises operated and maintained by a reputable security company. You will not be charged the costs of storage; however, should you require to have your file retrieved a 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 photocopying costs of duplicating your file will be payable by you in addition to the standard retrieval fee as well as any fees outstanding by you.

Important original documents will be held in safe custody or as you otherwise direct.

Should you require us to hold documents on your behalf in our safe custody facility we will not charge for this service. However, documents are stored at your risk. 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:

You may terminate our services by giving notice in writing at any time; and
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.

Disclosure
The following disclosure is required by Part 4 of the Securities Markets Act 1998. The procedures relating to receipt and distribution of the funds are as follows:

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.
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.
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 that time so that we will know who to credit and for what purpose.
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.
Where you request us to receive investment income, collection commission equal to 5% of the gross interest will be deducted from the income collected, (other than funds received from Cavell Leitch Pringle & Boyle Nominees Limited where the collection commission is payable by the Borrower).
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/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.