TERMS OF ENGAGEMENT (DISPUTED ESTATE)

The following terms apply to all disputed estate clients within South Australia.

1. Introduction

We confirm that you wish for us to act for you in a South Australian disputed estate matter.

We are prepared to accept act for you in this matter upon your agreement to the following terms. 

2. Scope of the Legal Work

2.1 You have instructed us to act on your behalf with respect to your Disputed Estate.

2.2 We will accept instructions from you and representing you

3. Doing the Work

As previously advised, you have a primary legal practitioner responsible for and in control of this matter. This legal practitioner is also the person whom you may contact with regard to legal costs.  However there may be changes of legal practitioner responsible over time (which will be notified to you) and other legal practitioners or legal staff may work on the matter from time to time as we consider necessary.

4. Fees

5. Disbursements

5.1 As previously advised, in addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements). 

5.2 Out of pocket expenses incurred by us such as fees of barristers, agents, Government and local authorities fees, STD, international calls and couriers are charged at the cost to us. We do not charge for mobile or local telephone calls.

5.3 Should we see a need to incur expenses on your behalf which are unusual as to their nature or extent (including in litigious matters expenses which are unlikely to be recoverable from the other side if you win and obtain a costs order), we will provide you with advice and seek your specific instructions before incurring such expenses.

5.4 Disbursements are incurred by us as your agent. In the event that the disbursement is subject to GST you will be required to pay the GST.

6. Goods and Services Tax (‘GST’)

Our fees are subject to GST. Under these Terms the amounts or rates quoted for fees are inclusive of GST.

It is a term of this engagement that you, as client, pay not only our fee/s but any GST in respect of the fee/s.

To the extent that disbursements we incur for you or on your behalf are subject to GST, GST will also be payable by you in respect of those disbursements.

It is a term of this engagement that you, as client, pay not only the disbursements, but that you pay or reimburse us for any GST paid or payable in respect of the disbursements.

7. Legal Costs – Your Right to Know

You have the right to:

• negotiate a costs agreement with us;
• receive a bill of costs from us;
• request an itemised bill of costs after you receive a lump sum bill from us;
• request written reports about the progress of your matter and the costs incurred in your matter;
• apply for costs to be adjudicated within 6 months if you are unhappy with our costs;
• apply for the costs agreement to be set aside;
• make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging);
• accept or reject any offer we make for an interstate costs law to apply to your matter;
• notify us 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 us for a copy or obtain it from the Law Society of South Australia (or download it from their website).

8. Cost Estimates 

8.1 As previously advised, it is not possible at this time to provide an accurate estimate of the total costs. 

The major variables that will affect the calculation of these costs are:

• The extent that the claim is defended/pressed by the other side, including the extent to which they engage in interlocutory disputation;
• The availability of Courts and judges to hear the matter and the extent to which it may have to be adjourned because of unavailability of Courts or judges;
• The experience and cost of barrister which you instruct us to brief;
• The number of experts which turn out to be required, and the rates charged by them;
• The extent to which you require information and feedback as to the progress of the matter;
• The extent to which you cooperate with us in prosecuting the matter, by for example, promptly returning telephone calls and responding to letters or emails.

8.2 We emphasise that the estimate is just that, a preliminary estimate. It is not a quote or a fixed maximum charge.  The actual costs will be based on the work actually done and the expenses actually incurred. 

9. Updating of Advice

You have the right under clause 17 of Schedule 3 of the Legal Practitioners Act to be notified of any substantial change to the matters to be disclosed to you under clause 10 of Schedule 3, including any substantial change to the estimated costs of work. 

10. Litigation Matters 

10.1 The estimate in 8 above only refers to the costs we charge you. In addition, the Court may order you to pay other moneys, including some or all of the costs of other parties.

10.2 Your costs with us are payable by you according to our payment terms whether or not you may, if successful in your action, have rights to recover some of your costs from another party or parties.

10.3 The scale of fees which applies in the Court in which your action will run will usually determine what can be recovered from the other party if you are successful.

10.4 It is a term of this engagement that you, as client, are aware and acknowledge that you have been advised by us, that even if you are successful in obtaining an order for costs payable by other parties in the litigation, 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 these terms and in our experience it is likely to be no more than 50% to 70% of your costs due to us.  You will have to meet the difference in these 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 we have charged you.

10.5 If you are unsuccessful you may be liable to pay the costs of other parties to the litigation in addition to our costs. As we are not aware of the extent of the legal work which may be performed for the other side, it is difficult to be precise as to what the amount of such costs might be.  We would estimate these may be between 50% to 70% of the amount of your own legal costs.

10.6 If we negotiate a settlement of a litigation matter on your behalf we will disclose prior to the settlement 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 may be calculated.

11. Billing

11.1 We are entitled to bill you on an interim basis, or if you terminate your agreement with us, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill.

11.2 Accounts are to be paid within seven (7) days after delivery. Interest at the rate of [4.5%] per annum which is the Cash Rate Target as of the date the bill is issued plus 2%.  Interest begins to run on our accounts once they have remained unpaid for thirty (30) days and shall be compounding and calculated on a daily basis.  If an account does remain unpaid after seven (7) days after delivery, we may terminate the engagement.

11.3 The following avenues are available to you if you are not happy with a bill from us:

• requesting an itemised bill;
• discussing your concerns with us;
• having our costs adjudicated;
• applying to set aside our cost agreement;
• making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging).

For more information about your rights, please read the fact sheet titled Your Right to Challenge Legal Costs.  You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website).

12. No Apportionment of Liability

Where we act for two or more people or entities in a matter, each of you will be individually responsible for payment of our entire account whatever arrangements may be made between you.  You agree that you are personally liable for our costs and disbursements even if the matter involves our acting for other persons and/or organisations.  If you provide us 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 these terms of engagement, irrespective of the liability of any third or other party to pay our fees.

13. Trust Money

13.1 We require you to pay $1,900 into our trust account and for this amount to be maintained as our required continual trust account balance.

13.2 In addition to the continual trust balance referred to in 13.1, we may ask you to pay money into our trust account from time to time to cover reasonably anticipated expenses, including counsel fees, that may be in excess of the continual trust balance. These moneys are retained in our trust account for payment of disbursement or will be applied to our invoices (including GST) when they fall due for payment, or will be used in payment of particular expenses of this firm which are incurred on your behalf.

13.3 Should the matter proceed to trial, we will ask you to provide to us, at least 21 days prior to the trial date, the moneys reasonably estimated by us to cover the full cost of the trial, including counsel, court and witness fees. We will hold those moneys in our trust account against the anticipated costs and disbursements.

13.4 If you do not comply with any such request, we may cease acting for you in accordance with the following clause.

14. Termination

14.1. You have the right to terminate our services at any time.

14.2. Upon good cause such as failure to comply with the terms of this agreement or if in our view the necessary relationship of confidence no longer exists between us we have a right upon reasonable notice to terminate our engagement and cease acting for you, and in litigation
matters apply to be removed from the Court file as your legal practitioners.

14.3. All fees and expenses incurred prior to termination by either you or us are then immediately billable to you.

14.4. Subject to any Court order to the contrary or consequent agreement to the contrary, you agree that we are entitled to retain all moneys, papers and records relating to this matter until our bills are paid.

15. Conflicts of Interest

We will not intentionally become involved in a situation where there is a conflict of interest of a legal nature between you, us and/or another client but if through inadvertence or unforeseen circumstances this should occur we may be obliged to terminate the engagement in this matter. 

16. Storage of Records

16.1 We operate an electronic filing system. We do not store paper records for the majority of your documents.  In most cases we will scan your documents and give them back to you.

16.2 Your privacy is important to us. Boylan Lawyers (Boylan’s) privacy policy is framed in the context the Privacy Act 1988 and the Australian Privacy Principles contained therein.  Boylan’s collects personal information in the provision of legal services. The purpose of collection of this personal information is to enable Boylan’s staff to provide legal services.   In all cases, the consent of the client about supplying information is required. Confirmation of consent may be evidenced by the provision of a terms of engagement or instruction booklet signed by the client to whom the information relates.

16.3 We store your files for seven (7) years after completion of the matter. We do not charge for this storage but if you require us to retrieve anything stored by us after completion of the matter, you agree that we will charge you a reasonable fee for that service. You authorise us to destroy any of your files retained by us after seven (7) years following the completion of the matter. We encourage you to collect your file from us for your own records within seven (7) years after completion of the work.

16.4 All reasonable steps must be taken to keep personal information confidential, destroy or de-identify personal information if it is no longer needed for any purpose for which the information may be used or disclosed. The information obtained cannot be disclosed to any other person without the client’s consent being provided in the terms of engagement or through their instructions.

16.5 Boylan’s staff members are trained to maintain professional standards of confidentiality in their contact with clients, barristers and other professionals. Boylan’s has a policy of requiring staff to sign confidentiality agreements re the non-disclosure of personal information of clients. This is in addition to the staff being bound by the professional conduct rules.

16.6 Files are available only to staff members who have a need to use them for the purpose of providing the legal service. Computer data bases containing information are protected by passwords known only to Boylan’s staff. Boylan’s collect electronic data containing matter documents, such as; correspondence, statements, Court Documents, file notes, terms of engagement, client authorities and other documents relating to a specific matter.  Where this data is cloud hosted, the cloud hosting services are to be provided in Australia.  Boylan’s also collect electronic data containing client contact information, such as; name, address, email, phone number and other contact information.  Where this data is cloud hosted it may be hosted in Australia or overseas.  Whether data is hosted in Australia or Overseas through a cloud hosting provider, all reasonable steps will be taken to ensure the information is appropriately protected. Emailed information is handled confidentially according to Boylan’s policy and procedures.

16.7 Personal information held by Boylan’s has been provided, with consent, by clients themselves or referrers on their behalf. A client may have access to his/her personal details which are held in his/her own personal record in accord with the provisions of the Australian Privacy Principles. Information to be provided to client must be provided to him/her personally after it has been clearly established that he/she is the person about whom the information is requested.  If a client considers that Boylan’s has breached his/her privacy or this policy, he/she may complain to the Managing Partner.

17. Your Agreement to Work with Us

It is a term of this agreement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, information and documents, and pay accounts or pay money into trust when reasonably required.  If you do not work with us in these ways, then we may terminate this agreement.  In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which we have been acting for you.

18. Authorisation

It is a term of the engagement that should we receive any money from you or on your behalf other than for a specified purpose, we are at liberty to apply that money in payment of our outstanding accounts if nothing has been heard from you disputing the accounts within 7 days after delivery.

19. Copyright

We own the copyright in all documents we author in supplying our services and you have the right to use those documents only for the purposes for which they are supplied.

20. Applicable law

These Terms 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.

21. Your Agreement to These Terms

21.1 Please contact Boylan Lawyers if there is anything in these Terms which you do not understand or with which you disagree. You are also entitled to seek independent legal advice on the contents of the above Terms.

22. Cooling Off Period

We note that you have a cooling off period of 5 clear business days during which you may, by written notice, terminate this agreement.