Terms of Engagement
1. Before starting work on your matter, I am required to set out in writing the general terms on which Henry Lloyd Davis Pty Ltd (ACN 650 291 839), an incorporated South Australian legal practice, will act for you.
1.1. This legal document is referred to as The Terms of Engagement. The purpose of the Terms of Engagement is to advise you of the basis on which I will act for you in this matter;
1.2. In fulfilling my obligations under The Terms of Engagement, I will take instructions from you.
Acceptance
2. You can accept the Terms of Engagement by signing this letter and returning it to me, or by instructing me (by email or letter) to start our work under these Terms of Engagement.
Once accepted, the Terms of Engagement form the agreement between me and you.
Scope of Work
3. The scope of the work to be carried out by me under these Terms of Engagement is outlined in the proposal letter.
Cost Estimates
4. I will provide you with the cost estimate of the fees you will incur with me in carrying out your instructions will be.
My estimate is subject to the following factors:
4.1. The complexity of the matters involved in performing the work;
4.2. The extent of the communications I have with you in relation to the work;
4.3. The number of drafts necessary to complete the work in accordance with your instructions;
4.4. The number and complexity of issues that arise during the course of the work that were not evident at the time of the estimate; and
4.5. The approach of other parties involved in the matter and the amount of communication with them that is necessary to perform the work.
Please note that this is the estimate only and should not be regarded as a fixed quote.
The actual costs you incur will be based on the work actually done and the expenses actually incurred.
Further estimates will be provided along the way.
Legal Fees
5. Unless otherwise specified in the Proposal Letter, I charge for our services based on hourly rates. The Principal and law clerks have relevant hourly charge rates set according to their experience, skills, and qualifications, and having regard to the nature of the work to be undertaken. Law clerks have not yet completed their law degrees or graduate diploma requirements. All legal work performed by Law clerks is done under my direct supervision.
5.1. The time I charge includes time spent on your matter and includes interviews, considering and preparing documents or correspondence, telephone calls, attending at meetings, undertaking research and travelling in the course of undertaking work for you and on your matter;
5.2. Our rates of charge for time spent are different from the rates set out in the Scales of Fees published by the Supreme Court of South Australia. Although time charging is common there may be other legal practitioners who would be prepared to act for you and charge according to the scale. You are entitled to seek independent legal advice regarding this or any other condition of the Terms of Engagement;
5.3. Our rates are likely to result in a higher charge than if the Court Scale of Fees were used and other lawyers might be prepared to do the work for a lesser fee;
5.4. You are also liable for disbursements (that is – out of pocket expenses including Barrister’s fees, except if agreed upon);
5.5. I will charge the following hourly rates exclusive of GST:
• for the work performed by the Principal: $500.00; and
• for the work performed by a law clerk: $300.00;
5.6. I will notify you of any new hourly rates I propose to charge. You are not obliged to accept such proposed rates, but if you do not accept them, I am entitled to cease acting for you. If you do accept the new rates, either expressly or by paying bills expressly calculated by reference to those new rates, they will be binding on you.
Disbursements
6. I will charge you for any out-of-pocket expenses (I call them disbursements) that I incur in connection with your matters. Examples of out-of-pocket expenses are search fees, registration fees, stamp duty, agent’s fees, storage retrieval fees, special postage or courier fees, bulk photocopying costs and taxi fares. Disbursements will either be itemised on our accounts or invoiced separately.
6.1. Should I see a need to incur expenses on your behalf which are unusual as to their nature or extent (including, in court matters, expenses which are unlikely to be recoverable from the other side if you win and obtain a costs order), I will provide you with advice and seek your specific instructions before incurring such expenses.
6.2. Disbursements are incurred by me as your agent. If a disbursement is subject to GST, you need to pay the GST.
Goods and Services Tax (‘GST’)
7. In addition to the rates referred to above, you are liable to pay an additional amount to reimburse me for the GST payable (if any) on any supply I make to you in the course of providing legal services.
You will also, if requested, let me have the information I need to calculate the GST payable (if any) in respect of the supply of legal services to you.
Legal Costs – Your Right to Know
8. You have the right to:
8.1. negotiate a costs agreement with me;
8.2. receive a bill of costs from me;
8.3. request an itemised bill of costs after you receive a lump sum bill from me;
8.4. request written reports about the progress of your matter and the costs incurred in your matter;
8.5. apply for costs to be adjudicated within 6 months if you are unhappy with our costs;
8.6. apply for the costs agreement to be set aside;
8.7. make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging);
8.8. accept or reject any offer I make for an interstate costs law to apply to your matter; and
8.9. notify me that you require an interstate costs law to apply to your matter.
For more information about your rights, please read the fact sheet titled Legal Costs – Your Right to Know. You can ask me for a copy or obtain it from the Law Society of South Australia (or download it from its website).
Updating of Advice
9. You have the right under Clause 7 of Schedule 3 of the Legal Practitioners Act 1981 (SA) to be notified of any substantial change to the matters to be disclosed to you under Clause 9 of Schedule 3, including any substantial change to the estimated costs of work.
Litigation Matters (Cases in Court)
10. If you have asked me to represent you in Court, these terms also apply in addition to those as described above. In these cases, the above costs estimate only refers to the costs I charge you.
In addition, the Court may order you to pay other moneys, including some or all of the costs of other parties to your court case.
10.1. You agree to pay our fees and disbursements according to our payment terms set out in the Terms of Engagement. You agree to pay these fees and disbursements whether or not you have rights to recover some of your costs from another party or parties if you are successful in your case.
10.2. The Scale of Fees which applies in the Court in which your case will run will usually determine how much money can be recovered from the other party if you are successful. My fees under the Terms of Engagement may be significantly higher than the relevant Scale.
10.3. You are aware and acknowledge that you have been advised by me, that even if you are successful in obtaining an order for costs payable by other parties in the case, such an order will not necessarily cover the whole of your legal costs. It is likely to be for an amount substantially less than the costs payable under the Terms of Engagement (in our experience it is likely to be no more than 50 per cent of your costs due to me, and for cases in the Magistrates Court it is likely to be even less than that percentage).
10.4. You will have to meet the difference between our accounts and any awarded costs from your own pocket. It is only in the most exceptional circumstances that a Court would order the losing party to pay all of the costs which I have charged you and even then, you will have to recover money from the other party who may not have the money to pay you.
10.5. If you are unsuccessful in your case in Court, you may be liable to pay the costs of other parties to the case in addition to our costs. As I am not aware of the extent of the legal work which may be performed for the other parties, it is difficult to be precise as to what the amount of such costs might be. I can only estimate these at between 50 and 100 per cent of the amount of your own legal costs.
10.6. If I negotiate a settlement of your case before any such settlement, I will give you a reasonable estimate of our costs and an estimate of the contribution to those costs likely to be received from another party so that the likely minimum net amount that you will receive can be calculated.
Legal Agent Fees
11. It might be necessary for me to engage a legal agent in your matter (such as a barrister, country or interstate lawyer or costs consultant) who may be needed to act on your behalf.
11.1. A barrister may be engaged to provide an opinion or to present your case in Court;
11.2. Interstate or country lawyers may be engaged to attend to things that need to be done at a relevant location; and
11.3. Costs consultants may be engaged to work out your entitlement to (or liability for) legal costs.
Billing and Payment
12. Every fortnight I will send you invoices for the work I have done unless otherwise is agreed between you and me.
You agree to pay all interim and final invoices within 14 days, otherwise, I may choose to stop working on your matter.
Interest for Overdue Accounts
13. Interest at the Reserve Bank of Australia Cash Rate Target (as of the date the bill is issued) plus 2% will be charged on overdue accounts.
Interest begins to run on our accounts once they have remained unpaid for 14 days.
Also, if an account remains unpaid after that time, I may terminate the Terms of Engagement.
No Apportionment of Liability
14. Where I act for two or more people or entities in a matter, each of the clients are individually responsible for payment of the entire account whatever arrangements may be made between them.
14.1. You agree that you are personally liable for the costs and disbursements even if the matter involves my acting for other persons and/or organisations;
14.2. If you provide me with instructions for or on behalf of a third party or jointly with another party, you will be personally liable to pay for our services in accordance with the Terms of Engagement, irrespective of the liability of any third or other party to pay our fees.
Termination
15. You have the right to terminate my services at any time.
15.1. Upon good cause, such as failure to comply with the Terms of Engagement or if in our view the necessary relationship of confidence between you and me no longer exists, I have a right upon reasonable notice to terminate the Terms of Engagement and cease acting for you, and in litigation matters apply to be removed from the Court file as your legal practitioner;
15.2. All fees and disbursements incurred prior to termination by either you or me are then immediately payable by you;
15.3. If I have undertaken work for you on a lump sum fee basis, then you must pay that part of our lump sum fee that I reasonably estimate has been incurred in respect of the legal services provided to you up to the date of termination, plus disbursements;
15.4. Subject to any court order to the contrary or consequent agreement to the contrary, you agree that I am entitled to retain all moneys, papers and records relating to this matter until our bills are fully paid.
Confidentiality
16. Any confidential information I obtain from you will be kept confidential and will not be disclosed to anyone unless it is done in the course of carrying out our engagement, disclosure is required by law, or the information ceases to be confidential. I am not required to disclose to you or use for your benefit any confidential information I have obtained from, or on behalf of another client.
Intellectual property
17. I retain copyright and other intellectual property ownership rights in the work that I do for you.
All file notes and documents drafted by me in the course of providing legal services under the Terms of Engagement remain our intellectual property.
Storage of Files
18. I will store your files electronically using cloud-based file storage services for seven years following completion of the matter.
18.1. If you require me to retrieve any of your files stored by me after completion of the matter, you agree that I may charge you a reasonable fee for the work required to locate, retrieve, and provide those files to you;
18.2. You authorise me to destroy (delete) any of your files retained by me after seven years following the completion of the matter.
Communications
19. It is a condition of the Terms of Engagement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, and pay accounts or pay money into trust when reasonably required. If you do not work with me in these ways, then I may terminate the Terms of Engagement. In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which I have been acting for you.
Credit Agencies
20. You authorise me to obtain your consumer credit information from a credit reporting agency. If you do not pay the accounts in accordance with the Terms of Engagement, you acknowledge that I may refer the fact of non-payment to a credit reporting agency which in turn may exchange that information with credit providers.
Limitation of liability
21. This clause sets out the limitations which apply to my liability to you should you have reasons to make a claim against me.
21.1. If any loss you sustain is caused or contributed to by your breach of the Terms of Engagement or negligence, then my liability for your loss will be reduced in accordance with the provisions of any applicable statute, or otherwise to such extent as is just and equitable having regard to the extent to which such loss was caused or contributed to by your breach of the Terms of Engagement or your negligence;
21.2. My liability for any loss or damage suffered by you arising out of the services I provide (including liability for any negligent act or omission or misrepresentation of mine), is limited to the amount to which I am entitled to be indemnified under the following:
• The compulsory professional indemnity insurance required to be held by me under the Legal Practitioners Act 1981 (SA); and
• Any additional insurance (including but not limited to professional indemnity) held by me;
21.3. The term ‘liability’ includes liabilities arising in tort, contract, by virtue of any statute or otherwise;
21.4. The term ‘loss or damage’ includes loss or damage incurred directly, indirectly, or consequentially but excludes any loss or damage arising from any fraudulent or unlawful conduct on our part;
21.5. You agree to release me from all claims arising in connection with the provision of services under the Terms of Engagement to the extent that my liability would exceed the limit on my liability under this clause;
21.6. Nothing in the Terms of Engagement excludes, restricts, or modifies the application of the provisions of any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any of the terms of the Terms of Engagement (including these Standard Terms of Engagement) to be void;
21.7. The Terms of Engagement are the only communications governing our relationship.
Subject to this section, I will have no liability for any other statements or representations concerning our relationship with you. All representations to exercise reasonable care or render our services with due care and skill, which might otherwise be implied by statute, common law or custom, are expressly excluded. If any representations are of importance to you, you should ensure they are expressly set out in the Terms of Engagement before accepting them.
Applicable law
22. The Terms of Engagement are governed by South Australian law.
All parties consent to the non-exclusive jurisdiction of the courts of South Australia with regard to any dispute arising under or out of them.
Your Agreement
23. I welcome and value feedback from my clients.
If I can do something better or if I am not performing to your satisfaction, please let me know.
Please do not hesitate to contact me if there is anything in the Terms of Engagement which you do not understand, with which you disagree or which you wish to discuss.
You are also entitled to seek independent legal advice on the Terms of Engagement.
I look forward to working with you.
Kind Regards,
Henry Lloyd Davis
Principal
