Retainer Agreement

You have instructed us to provide you legal services.

We will charge you professional fees for the work we do on:

• a fixed fee basis;
• a monthly invoice; or
• an hourly rate.

Subject to a written agreement with you to the contrary, the hourly rate charged by our professional staff are set out below:

• $580 plus GST for complex matters – for a Partner.
• $480 plus GST for standard matters – for a Partner.
• $380 plus GST for standard matters – for a Senior Solicitor.
• $320 plus GST for standard matters – for a Solicitor

You will be proportionately charged for work involving shorter periods less than an hour. Our charges are not structured in 6 minute 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. If our rates are changed during the course of a matter, you will be given 30 days’ notice in writing of any changes to our rates.

Disbursements

We may incur disbursements (being money which we pay or are liable to pay to others on your behalf). Disbursements may include items such as 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 separate disclosure and costs agreement, we will sign this on your behalf.

You will, at all times and without any exception, be responsible for disbursements which we incur in connection with your matter.

Internal Expenses

You will be responsible for internal expenses which we incur in connection with your matter. These include photocopying which is charged at 40 cents per page, courier and postage costs.

Based on your scope of work, where possible, we will provide you an estimate of our cost of the work. Where it is not possible, we will advise you. If you are not happy with this arrangement, we ask that you do not engage us.

Variables

• Some of the variables which may affect and change the costs estimate include:
• the number and duration of telephone calls or other communications;
• your prompt and efficient response to requests for information or instructions;
• whether your instructions are varied;
• whether documents have to be revised in light of varied instructions;
• volume of documents discovered during the course of your matter;
  the manner in which the other party proceeds and requests it makes;
• the lawyer or other persons with whom we deal and the level of co-operation with all persons involved;
• changes in the law; and
• the complexity or uncertainty concerning legal issues affecting your matter.

Please note that our estimates are an approximation only and not a fixed quote. The total costs may exceed our 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, if requested, we will provide you with a revised estimate.

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. Courts will usually order party/party costs and not solicitor/client basis. The amount of costs that the court may award you (if successful) or order you to pay (if unsuccessful) will also be influenced by whether or not an Offer of Compromise or a Calderbank settlement offer has been made in the proceedings. If such a settlement offer is made and not accepted, and at the hearing of the matter the maker of the offer achieves an outcome as favourable or more favourable than that set out in the offer, then (whilst always having a discretion) the court may (in the case of a Calderbank offer) or is likely to (in the case of an Offer of Compromise) award costs on an indemnity basis from the date the offer was made against the party who did not accept the offer.

If you do have a costs order in you favour, it may still be necessary to seek to enforce such costs order e.g. through an assessment process. This can be time consuming and costly. A costs assessor will consider whether a successful party is entitled to an input tax credit (GST) in respect of legal costs already paid, when assessing costs recoverable by the successful party. The possible costs associated with such potential enforcement proceedings are not dealt with in this document, but will be advised to you should the circumstances arise. It is also possible that you cannot recover any costs from the other party (for example if the party goes into liquidation or becomes bankrupt); nonetheless you will still have to pay us such that liability to pay our invoice sits with you.

If you win at first instance, you may still face the prospect of meeting the costs of defending your verdict, if the other side appeals.

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.

All courts have a discretion in respect of awarding costs. In some courts, for claims less than $20,000 you can recover are very limited costs.

Our usual policy is to issue a tax invoice on a monthly basis but we may issue tax invoices on a more infrequent basis depending on the nature of the work. All tax invoices are due and payable 14 days from the date of the tax invoice, unless the invoice states otherwise.

You accept the Costs Disclosure and Costs Agreement by: a) signing and returning our letter dealing with our fees or: b) continuing to instruct us. Upon acceptance, you agree to pay for our services on the term contained the Retainer Agreement (as defined above).

Interest at the maximum rate prescribed in Regulation 110A of the Legal Profession Regulation 2005 (“Regulation”) (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.

The Legal Profession Act 2004 (“the Act”) provides that we cannot take action for recovery of legal costs until 30 days after a tax invoice (which complies with the Act) has been delivered to you.

It is your right to:

• negotiate a costs agreement with us;
• receive a lump sum bill in respect of legal services provided;
• request and receive an itemised bill after receipt of a lump sum bill;
• be notified as soon as is reasonably practicable of any substantial change to any matter affecting costs;
• request in writing, and be provided with, a written report of the progress of any matter in which you retain us or a written report of the legal costs incurred by you to date;
• accept or reject any offer we make for an interstate costs law to apply to your matter; and
• notify us that you require an interstate costs law to apply to your matter.

We are entitled to charge you a reasonable amount for the provision of a progress report on your matter but may not charge for the provision of a written report on the legal costs incurred by you.

Nothing in these terms and conditions affects your rights under the Australian Consumer Law.

If you have a dispute in relation to any aspect of our legal costs you have the following avenues of redress:

• 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 relationship;
• 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;
• you may apply to the Costs Assessor to set aside some or all of these terms on the grounds they are not fair or reasonable; or
• you may refer a dispute about a tax invoice to the President of the Law Society or the Legal Services Commissioner for mediation if the amount in dispute is less than $10,000.

It is our policy that when acting for new clients, that we do one or more of the following:

• approve credit;
• ask the client to pay monies into our trust account;
• ask the client for their credit card details.

Unless otherwise agreed with you, we may determine not to incur fees or expenses in excess of the amount that we hold in trust on your behalf or for which credit is approved.

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, internal expenses and disbursements in accordance with the provisions of clause 88(3)(a)(i) of the Regulation.

On completion of your work, we will retain your documents for 7 years. Your (express or implied) agreement to these terms constitutes your authority for us to destroy the file after 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.

On completion of your work or following termination (by either party) of our services you will be liable for the cost of retrieving documents in storage and also any photocopying charges we incur and our professional fees in connection with the provision of your file to you or as directed by you.

We may cease to act for you or refuse to perform further work, including:

• while any of our tax invoices remain unpaid;
• if you do not within 7 days comply with any request to pay an amount in respect of disbursements or costs;
• if you fail to provide us with clear or timely instructions to enable us to advance your matter, for example, compromising our ability to comply with Court directions, orders or practice notes;
• if you refuse to accept our advice;
• if you indicate to us or we form the view that you have lost confidence in us;
• if there are any ethical grounds which we consider require us to cease acting for you, for example a conflict of interest;
• for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or
• if in our sole discretion we consider it is no longer appropriate to act for you.

We will give you 14 days written notice of termination of our services. You will be required to pay our costs incurred up to the date of termination. In the event of a termination under this clause, we will issue you our final invoice and you will pay this within 7 days of the invoice date.

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). In the event of a termination under this clause, we will issue you our final invoice and you will pay this within 7 days of the invoice date.

Without affecting any lien to which we are otherwise entitled at law over funds, papers and other property of yours in our possession:

• 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.
• our lien will continue notwithstanding that we cease to act for you.

We are required and committed to protecting your personal information in accordance with our obligations under the Privacy Act 1988 and the National Privacy Principles.

Disclosure of such information may be compelled by law (e.g. under the Social Security Act 1991 (Cth)). You also authorise us to disclose such information where necessary to others in furtherance of your claim/matter (e.g. within the law practice; to the Court; to the other party or parties to litigation; and to valuers, experts, barristers).

At all times we will seek to maintain the confidentiality of your information. However, we may be permitted or required by law to disclose confidential information. You agree that we may also, on a confidential basis, provide your information to third parties where we consider it is appropriate for the proper conduct of your matter.

Unless you instruct us in writing to the contrary, we are able to send and receive electronic mail. However, as such mail is not secure it may be copied, recorded, read or interfered with by third parties while in transit. If we 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 after transmission, for any delay or non-delivery of any document and for any damage caused to your system or any files by a transfer.

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 any charges.

The law of New South Wales governs these terms and legal costs in relation to any matter upon which we are instructed to act.

For more information about your rights, please read the facts sheet titled “Legal Costs – your right to know”. You can ask us for a copy, or obtain it from the NSW Law Society (or download it from its website).