TERMS OF ENGAGEMENT (ESTATE PLANNING)

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

1. Introduction

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

Before commencing work we are required to set out the following general terms on which we accept instructions.

2. Scope of the Legal Work

You have instructed us to advise you with regards to an estate planning matter.

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

6.1 In addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements).

6.2 Out of pocket expenses incurred by us such as fees of barristers, court fees, 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.

6.3 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.

6.4 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.

7. 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.

8. 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).

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. Billing

10.1 Subject to the other terms of this agreement, we are entitled to bill you on an interim basis, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill.

10.2 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.

10.3 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).

11. 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.

12. Trust Money

12.1 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.

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

13. Termination

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

13.2 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.

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

13.4 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.

14. 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. 

15. Storage of Records

15.1 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.

15.2 Your privacy is important to us. Boylan Lawyers (Boylans) privacy policy is framed in the context the Privacy Act 1988 and the Australian Privacy Principles contained therein.  Boylans collects personal information in the provision of legal services. The purpose of collection of this personal information is to enable Boylans 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.

15.3 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.

15.4 Boylans staff members are trained to maintain professional standards of confidentiality in their contact with clients, barristers and other professionals. Boylans 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.

15.5 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 Boylans staff. Boylans 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.  Boylans 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 Boylans policy and procedures.

15.6 Personal information held by Boylans 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 Boylans has breached his/her privacy or this policy, he/she may complain to the Managing Partner.

16. 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.

17. 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.

18. 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.

19. 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.

20. Your Agreement to These Terms

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.

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

Part 2—Higher Courts costs scale

Note—

The amounts allowable under this Scale may be increased under rule 192.5 of the Rules.

3—Higher Courts costs scale

• Subject to subrule (2), the Higher Courts costs scale is set out in the following

 

Higher Courts costs scale
Item	Description	Amount
Documents
1	Drawing any document of importance, other than documents mentioned under item 2, 10 or 11 (including original and the lawyer’s file copy).	$37.50—for each ¼ page.
2	Drawing proofs, indices, formal lists, extracts from other documents, lists of authorities, or other formal documents (including original and the lawyer’s file copy).	$19.00—for each ¼ page.
3	Engrossing documents, when copying or scanning is not appropriate (including original and the lawyer’s file copy).	$5.50—for each ¼ page.
4	Perusing documents (including electronic documents).	a range between $2.75 and $10.75—for each ¼ page.
5	Examining documents (including electronic documents), when a perusal is not justified.	$0.70—for each ¼ page.
6	Documents produced by copying or scanning, or receiving emails, faxes or any other electronic transmissions.	$0.40—for each sheet.
Attendances and Communications
7	Attendances and oral communications, whether personal or by electronic communication, including attendances to swear or take affidavits.	Either: (a)  for each 6 minute unit by a lawyer involving skill—$40.00; (b)  for each 6 minute unit by a lawyer not involving skill—$24.00; (c)  for each 6 minute unit by a non- lawyer employed or engaged by a lawyer—$19.00; or (d)  for arranging appointments, including all work involved—$27.00 per person.
8	Attending hearings, including preparation, and when not attending as instructing lawyer for counsel.	Either: (a)  for an ordinary hearing—$200.00; or (b)  if protracted (beyond 5 units), for each 6 minute unit of hearing time— $40.00.
9	Filing or delivery of documents other than personal service, when no other attendance is properly allowable.	$27.00.

 

Higher Courts costs scale
Item	Description	Amount
Correspondence
10	Correspondence, including original to send and the lawyer’s file copy, and the ordinary postal or transmission expenses—whether sent by letter, email, SMS or fax.	$27.00—for each ¼ page.
11	Circular correspondence, including original to send and the lawyer’s file copy, and the ordinary postal or transmission, expenses—after the first.	$13.50—for each letter, including copying for subsequent pages (regardless of the number of pages).
Miscellaneous
12	Paying disbursements by whatever means and including all work and associated expenses.	$27.00
13	Preparation of Pleadings Books, Tender Books, Application Books, Appeal Books and Briefs, including indices, pagination and binding.	$2.00—for each page.
14	Lump sum on a default judgment.	$2,731.00.

 

 

• The table in subrule (1) is subject to the notes in rule

4—Notes

General

• The amount allowed for each of the items in the table in rule 3(1) is to be at the discretion of the taxing officer, who is at liberty, in the particular circumstances of the matter, to disallow an item entirely or allow a greater or lesser amount for an

Example—

The taxing officer may allow a greater amount where the matter is of importance or difficulty.

• The costs allowed in the scale do not include Goods and Services Tax (GST), which is to be added except in the following circumstances—
  • GST must not be included in a claim for costs if the receiving party is able to recover GST as an input tax credit;
  • if the receiving party is able to obtain an input tax credit for only a proportion of the GST, only the portion which is not eligible for credit can be claimed;
  • if there is a dispute as to whether GST is properly claimed, the receiving party must provide a certificate signed by the lawyers or auditors of the receiving party as to the extent of any input tax credit available to the receiving

Attendances

• A 6-minute unit comprises 6 minutes or part thereof, but no part will be allowed as a full unit if it is unreasonable to do
• When a lawyer is instructing counsel, the lower attendance rate should be allowed if the lawyer is merely assisting by being present, but the higher rate should be allowed if the lawyer is more actively involved, for example, by proofing witnesses, preparing indices,

 

Documents and perusals

• Unless the taxing officer considers that there is good reason to depart from it, pages for items in the tables in subrules 3(1) and 3(2) must be measured by compliance with the prescribed formats under rule 31.2 of the Rules and on the basis that a full page contains 44 lines and a quarter page contains 11 lines, where—
  • a part of a quarter page is to be treated as a full quarter page; and
  • each page of a claim for costs may be allowed as a standard
• If a document is prepared in a size other than A4, the amounts to be allowed may be increased or decreased in the discretion of the taxing
• In relation to perusals—
  • a rate towards the maximum rate for perusal is appropriate for documents such as pleadings, particulars, advices and opinions and for more complicated medical and expert reports;
  • a middle range figure is appropriate for standard expert reports, lists of documents and medical reports;
  • a rate towards the lower rate is appropriate for notices of acting, notices of change of address for service, ordinary correspondence, special damages vouchers and the like; and
  • in cases in which a large volume of documents must be perused, an hourly rate may be allowed by the taxing officer instead of a perusal

Copying, scanning and emailing

• When a substantial number of sheets are, or should be, photocopied or scanned at the same time, regard may be had to commercial photocopying rates in respect of multiple copies of the same document, for each sheet after the first.
• When multiple emails or SMSs are claimed, those dealing with the same issues over a period of 48 hours extending over not more than 3 consecutive business days will be treated as

Disbursements

• Allowable disbursements must whenever possible be included in the same item as the corresponding claim for lawyer’s costs, but within the disbursements
• Only the amount of a disbursement actually paid or payable must be shown in the claim for costs as a disbursement; and, if a disbursement is yet to be paid, this must be specially
• Such allowance for kilometrage by motor vehicle or other conveyance will be made as the taxing officer considers

Schedule of Costs

• A claim for costs must show—
  • the time spent on attendance (when applicable);
  • the number of A4 pages (or the equivalent) contained in any document for which a charge is made;
  • the name of a lawyer and the status of a clerk in respect of whom an attendance is charged;

• a separate identifying number for each item and the date of the item;
• the items of work and disbursements in chronological order with a total of disbursements and counsel fees after the total of the solicitor’s charges; and
• succinctly the nature of the work done and, where possible, use recognised abbreviations;

Examples—

att of sol X on cl, tel call by sol Y on cnsl, ltr to witnss, att of sol Z at dir hrng

where ‘sol’ denotes solicitor, ‘cl’ denotes client, ‘cnsl’ denotes counsel, ‘ltr’ denotes letter and ‘att’ denotes attendance.

• Copies of accounts for counsel fees and other external disbursements must be attached to the claim for costs.
• When the Court is required to tax costs both as between party and party and lawyer and client, the appropriate form must be modified by the applicant so as to provide for the inclusion of both party and party and lawyer and client costs and the respondents’ respective responses.