|
|
V1/16
Costs Disclosure and Conditional Costs Agreement
This document, together with our General Terms of Business, sets out the terms of our offer to provide legal services
to you and constitutes our costs agreement and disclosure pursuant to the Legal Profession Uniform Law ("the Uniform
Law").
You confirm that you have hereby been informed of your right to obtain independent legal advice before entering into this
Conditional Costs Agreement.
A. Scope of Work
You have instructed us to [INSERT].
B. Successful Outcome of the matter
We will only be entitled to receive payment of our Legal Costs from you in the event that you obtain a successful outcome.
The successful outcome of the matter, as agreed with you, is [INSERT (examples are: a financial recovery including by way
of negotiation, mediation or court process)].
C. Professional Fees [IF TIME BASED FEE AGREEMENT - DELETE AS REQUIRED]
We will charge you professional fees for the work we do based on hourly rates. The hourly rates charged by our professional
staff are set out below:
(a) $[INSERT] plus GST = $[INSERT] for a Partner.
(b) $[INSERT] plus GST = $[INSERT] for a Senior Associate.
(c) $[INSERT] plus GST = $[INSERT] for a Solicitor.
The solicitors with principal responsibility for assisting you in this matter are
(a) Partner Responsible [INSERT]
(b) Solicitor Responsible [INSERT]
You will be proportionately charged for work involving shorter periods less than an hour. Our charges are structured in
6 minute units. For example, the time charged for an attendance of up to 6 minutes will be 1 unit and the time charged for
an attendance between 6 and 12 minutes will be 2 units.
Our rates are reviewed on a regular basis and may change during the course of a matter. In relation to lengthy matters
this may impact upon our cost estimates (which may be revised accordingly). You will be given 30 days' notice in writing of
any changes to our charge out rates.
Fixed Fees [IF FIXED FEE AGREEMENT - DELETE AS REQUIRED]
We will charge you professional fees for the work we do on a fixed fee basis in the amount of:
$[INSERT] plus GST = $[INSERT]
D. Uplift Fees [IF UPLIFT IN FEE AGREEMENT - DELETE AS REQUIRED]
In the event that you obtain a successful outcome, we will charge an additional [INSERT] % "uplift" on our professional
fees.
E. Disbursements and Internal Expenses
Disbursements
We may incur disbursements (being money which we pay or are liable to pay to others on your behalf). Disbursements may
include search fees, court filing fees, process server fees, expert fees, witness expenses, travel expenses, transcript expenses
and barrister's fees.
Where you instruct us to brief a barrister or other expert and they provide a disclosure and costs agreement we will provide
this to you.
Internal Expenses
You will be responsible for internal expenses which we incur in carrying out your instructions. These include photocopying
which is charged at $[INSERT] plus GST = $[INSERT] per page.
F. Estimate of Professional Fees, Internal Expenses and Disbursements
On our present instructions, we estimate the cost of the work, inclusive of GST, to be:
Professional fees: $[INSERT]
Disbursements: $[INSERT]
Internal Expenses: $[INSERT]
TOTAL $[INSERT]
The uplift fee on the professional costs, which is additional to the above estimate, is estimated to be
$[INSERT] [DELETE AS REQUIRED]
Variables
Some of the variables which may impact upon the cost estimate provided above include the following:
(a) the number and duration of telephone calls or other communications;
(b) your prompt and efficient response to requests for information or instructions;
(c) whether your instructions are varied;
(d) whether documents have to be revised in light of varied instructions;
(e) the lawyer or other persons with whom we deal and the level of co-operation of the lawyer’s clients and
other persons involved;
(f) changes in the law; and
(g) the complexity or uncertainty concerning legal issues affecting your matter.
Please note that this is an estimate only and not a fixed quote. The total costs may exceed the estimate. While the estimate
is based on present information and instructions and our current understanding from you as to what services are required,
our costs may exceed the estimate if further information becomes available or circumstances change which affect these matters.
In this event we will provide you with a revised estimate as soon as practicable. Where there is a significant change in your
matter then as far as possible we will advise the impact of the change on the legal costs.
G. Costs Payable and Recoverable on Litigation Outcome
Even if you are successful in proceedings and have a costs order in your favour it is unlikely that you will recover all
of the costs you must pay us from another party. If you do have a costs order in your favour, it may still be necessary to
seek to enforce such costs order e.g. through the assessment system. This can be time consuming and costly. The possible costs
associated with such potential enforcement proceedings are not dealt with in this document, but will be advised to you should
the relevant circumstances arise. It is also possible that you cannot recover the costs from the other party (for example
if the party goes into liquidation or becomes bankrupt); nonetheless you will still have to pay us.
If you lose the litigation, then you will likely have to pay the costs of the other party - either an amount you can both
agree on or if no agreement can be reached then an amount of costs assessed by a costs assessor as payable. However, the Court
always has a discretion in relation to costs orders.
H. Acceptance of offer
If you accept this offer, you must sign and return this document to us. We will not do any work on this matter until this
is done. If you do so, you have entered into a Conditional Costs Agreement with us. This means that you will be bound by the
terms and conditions in this agreement, including being billed in accordance with it.
I. Cooling off period
If you wish to terminate this Conditional Costs Agreement, you may do so within five (5) clear business days of signing
it. The “cooling off” period ends at 5 pm on the fifth business day after the day on which this Conditional
Costs Agreement was signed. If you terminate within the cooling off period, we shall only charge you the costs (excluding
the uplift) incurred for work done that was performed on your instructions and with your knowledge up to termination.
If you are signing on behalf of the client, you confirm that you are authorised to do so.
Dated:
Client: [signature]
Dated:
Law practice: (signature_
General Terms of Business
1 Billing Arrangements
A tax invoice for our professional fees and internal expenses including any uplift fee will be issued on the successful
outcome of the matter.
As for disbursements we may issue a tax invoice monthly.
All tax invoices are due and payable 30 days from the date of the tax invoice. You consent to us sending our tax invoices
to you electronically at your usual email address or mobile phone number as specified by you.
2 Interest Charges
Interest at the maximum rate prescribed in Rule 75 of the Legal Profession Uniform General Rules 2015 (“Uniform
General Rules”) (being the Cash Rate Target set by the Reserve Bank of Australia plus 2%) will be charged on any
amounts unpaid after the expiry of 30 days after a tax invoice is given to you. Our tax invoices will specify the interest
rate to be charged.
3 Recovery of Costs
The Legal Profession Uniform Law (NSW) (“the Uniform Law”) provides that we cannot take action for
recovery of legal costs until 30 days after a tax invoice (which complies with the Uniform Law) has been given to you.
4 Your Rights
It is your right to:
(a) negotiate a costs agreement with us;
(b) negotiate the method of billing (e.g. task based or time based);
(c) request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;
(d) seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute
about legal costs;
(e) be notified as soon as is reasonably practicable of any significant change to any matter affecting costs;
(f) accept or reject any offer we make for an interstate costs law to apply to your matter; and
(g) notify us that you require an interstate costs law to apply to your matter.
If you request an itemised bill and the total amount of the legal costs specified in it exceeds the amount previously
specified in the lump sum bill for the same matter, the additional costs may be recovered by us only if:
(i) when the lump sum bill is given, we inform you in writing that the total amount of the legal costs specified in any
itemised bill may be higher than the amount specified in the lump sum bill, and
(ii) the costs are determined to be payable after a costs assessment or after a binding determination under section 292
of the Uniform Law.
Nothing in these terms affects your rights under the Australian Consumer Law.
5 Your Rights in relation to a Dispute concerning Costs
If you have a dispute in relation to any aspect of our legal costs you have the following avenues of redress:
(a) in the first instance we encourage you to discuss your concerns with us so that any issue can be identified and we
can have the opportunity of resolving the matter promptly and without it adversely impacting on our business relationship;
(b) you may apply to the Manager, Costs Assessment located at the Supreme Court of NSW for an assessment of our costs.
This application must be made within 12 months after the bill was provided or request for payment made or after the costs
were paid.
6 Authorisation to Transfer Money from Trust Account
You authorise us to receive directly into our trust account any judgment or settlement amount, or money received from
any source in furtherance of your work, and to pay our professional fees, any uplift fee, internal expenses and disbursements
in accordance with the provisions of Rule 42 of the Uniform General Rules. A trust statement will be forwarded to you upon
completion of the matter.
7 Retention of Your Documents
On completion of your work, or following termination (by either party) of our services, we will retain your documents
for 7 years. Your agreement to these terms constitutes your authority for us to destroy the file after those 7 years. The
authority does not relate to any documents which are deposited in safe custody which will, subject to agreement, be retained
on your behalf indefinitely. We are entitled to retain your documents while there is money owing to us for our costs.
You will be liable for the cost of storing and retrieving documents in storage and our professional fees in connection
with this.
8 Termination by Us
We may cease to act for you or refuse to perform further work, including:
(a) while any of our tax invoices remain unpaid;
(b) if you do not within 7 days comply with any request to pay an amount in respect of disbursements;
(c) if you fail to provide us with clear and timely instructions to enable us to advance your matter, for example, compromising
our ability to comply with Court directions, orders or practice notes;
(d) if you refuse to accept our advice;
(e) if you indicate to us or we form the view that you have lost confidence in us;
(f) if there are any ethical grounds which we consider require us to cease acting for you, for example a conflict
of interest;
(g) for any other reason outside our control which has the effect of compromising our ability to perform the work required
within the required timeframe;
(h) if in our sole discretion we consider it is no longer appropriate to act for you; or
(i) for just cause.
We will give you reasonable written notice of termination of our services. You will be required to pay our costs incurred
up to the date of termination.
9 Termination by You
You may terminate our services by written notice at any time. However, if you do so you will be required to pay our costs
incurred up to the date of termination (including if the matter is litigious, any cancellation fees or other fees such as
hearing allocation fees for which we remain responsible).
10 Lien
Without affecting any lien to which we are otherwise entitled at law over funds, papers and other property of yours:
(a) we shall be entitled to retain by way of lien any funds, property or papers of yours, which are from time to time
in our possession or control, until all costs, disbursements, interest and other moneys due to the firm have been paid; and
(b) our lien will continue notwithstanding that we cease to act for you.
11 Privacy
We will collect personal information from you in the course of providing our legal services. We may also obtain personal
information from third party searches, other investigations and, sometimes, from adverse parties.
We are required to collect the full name and address of our clients by Rule 93 of the Uniform General Rules. Accurate
name and address information must also be collected in order to comply with the trust account record keeping requirements
of Rule 47 of the Uniform General Rules and to comply with our duty to the courts.
Your personal information will only be used for the purposes for which it is collected or in accordance with the Privacy
Act 1988 (Cth). For example, we may use your personal information to provide advice and recommendations that take into account
your personal circumstances.
If you do not provide us with the full name and address information required by law we cannot act for you. If you do not
provide us with the other personal information that we request our advice may be wrong for you or misleading.
Depending on the nature of your matter the types of bodies to whom we may disclose your personal information include the
courts, the other party or parties to litigation, experts and barristers, the Office of State Revenue, PEXA Limited, the Land
and Property Information Division of the Department of Lands, the Registrar General and third parties involved in the completion
or processing of a transaction.
We do not disclose your information overseas unless your instructions involve dealing with parties located overseas. If
your matter involves parties overseas we may disclose select personal information to overseas recipients associated with that
matter in order to carry out your instructions.
We manage and protect your personal information in accordance with our privacy policy [which can be found on our firm
website or a copy of which we shall provide at your request]. Our privacy policy contains information about how you can access
and correct the personal information we hold about you and how you can raise any concerns about our personal information handling
practices. For more information, please contact us in writing.
12 Sending Material Electronically
We are able to send and receive documents electronically. However, as such transmission is not secure it may be copied,
recorded, read or interfered with by third parties while in transit. If you ask us to transmit any document electronically,
you release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with
that document, for any delay or non-delivery of any document and for any damage caused to your system or any files.
13 GST
Where applicable, GST is payable on our professional fees and expenses and will be clearly shown on our tax invoices.
By accepting these terms you agree to pay us an amount equivalent to the GST imposed on these charges.
14 Governing Law
The law of New South Wales governs these terms and legal costs in relation to any matter upon which we are instructed
to act.
|
|
|
