Our Standard Retainer

Introduction

We believe that there should be transparency around the legal costs that we charge and how those costs are charged. The following is a copy of our standard retainer, more commonly called a costs agreement. It sets out the terms and conditions upon which we agree to act for you in your legal matters.

The retainer is written in non-technical language, but please do not hesitate to contact us if you have any queries or questions regarding its terms. Please read the article about the disclosure of legal costs and your rights. Note that you are also entitled to seek independent legal advice regarding these Terms and Conditions.

Important - Where we are instructed to act for you in a legal matter these Terms and Conditions constitute an offer by us to enter into a costs agreement with you to which Schedule 3 of the Legal Practitioners Act 1981 (S.A.) applies or is to apply. The offer can be accepted by you in writing or by other conduct. Conduct that will constitute acceptance is if you continue to instruct us in your legal matter after we have brought these Terms and Conditions to your attention.


1. Client

1.1 If you instruct us: (a) in your personal capacity, you are our client. (b) on behalf of an incorporated association, the association is our client. (c) on behalf of a company, the company is our client. (d) on behalf of a partnership, each partner is our client. (e) on behalf of a trust, each trustee is our client.

1.2 If you instruct us on behalf of another person then your warrant that you have authority to give those instructions. We may require the person to provide written confirmation of your authority to instruct us and the person's agreement to be bound by these Terms and Conditions.

1.3 If we are instructed to act for more than one person, then the liability of each person under these Terms and Conditions is joint and several.


2. Scope of Work

As soon as practicable after you first instruct us we will write to you confirming:

2.1 that we are able to act for you and the scope of legal work that you have asked us to carry out; and

2.2 any variation to these Terms and Conditions that have been expressly agreed to by you and us.


3. Legal Costs

3.1 Legal costs are the monies you may be charged or become liable to pay in respect of your legal matter and include professional fees, file costs and disbursements.

3.2 Professional fees Hourly Fee Rate (a) Unless we have agreed to a fixed fee we charge for our legal services on a time cost basis. This means our fees are calculated by reference to the amount of time we spend working on your legal matter. (b) Our standard fee rate is $352.00 per hour inclusive of GST. That fee rate will apply to your legal matter unless we agree in writing to a different rate. Our fee rate is calculated pro-rata for a part hour. The minimum unit of time that we record for any item of work is 2 minutes. If an item of work takes less than two minutes it is rounded up. (c) At the end of each financial year we may change our fee rate to reflect increases to the cost of living or running our legal practice. In that event, we will write to you to confirm any changes to our fee rate. You are not obligated to accept a change to our fee rate. If you do not accept the change, then we are entitled to cease acting for you. Your acceptance of a change to our fee rate may be communicated to us expressly or by paying bills that have been calculated using that rate. Fixed Fee (e) In some legal matters we may agree to a fixed fee. An example of this is a legal matter for the preparation of a standard agreement or legal work that is repetitious. In that event our fees will be the fee agreed regardless of the amount of time we spend working on your matter. (f) The fixed fee is exclusive of file costs, disbursements, GST and legal costs referred to in Clauses 9.1, 9.3, 11.1, 16.2, 20.4 and 21.1 each of which is charged in addition to the fixed fee. (g) A fixed fee agreement must be in writing and expressed as such. Note: A fixed fee agreement is not the same as an estimate. An estimate is not a binding on you or us. It is provided to you to assist you to understand the total legal costs that may be incurred in your legal matter.

3.3 File Costs (a) File costs are out of pocket expenses, office expenses or administrative fees attributable to your legal matter and are recoverable in the same manner as our professional fees. Common file costs are the cost of telephone calls, emails, facsimiles, parking, binding documents, photocopies, postage, couriers and company or land searches. Other file costs may be charged where they relate specifically to your legal matter. If your legal matter involves litigation, some file costs may not be recoverable even if you are successful in the litigation. (b) We have included a list of our charges for common file costs in the Schedule at the end of these Terms and Conditions.

3.4 Disbursements (a) Disbursements are amounts charged by someone else that relate specifically to your legal matter. These may include fees charged by accountants, barristers, courts, experts, medical practitioners and government departments. (b) We will seek your instructions to incur a disbursement if it is more than $100.00. If your legal matter involves litigation we will seek your instructions before we incur a disbursement that is unusual as it may not be recoverable even if you are successful in the litigation. We incur disbursements in your legal matter as your agent and you remain responsible for payment. We will not be required to accept or complete your instructions or do further work on your legal matter unless you provide a cheque made payable to the person to whom the disbursement is payable or deposit monies into our trust account to enable us to pay the disbursement. (c) If we pay any disbursement in respect of your legal matter from our own funds then it will be billed by us to you as a file cost.

3.5 Barrister's Fees (a) Barrister's fees can, and often do, constitute a large component of the legal costs relating to your legal matter. They are determined by the barrister having regard to his or her experience and expertise. They may, and often do, exceed any recommendation as to the charging of barrister's costs. Note: The South Australian Bar Association has published an Indicator for Counsel Fees but it has not been updated for some time and is not binding. Barrister's fees are negotiable, but a barrister is only required to accept a brief if the fee offered is acceptable to the barrister. (b) If you instruct us to engage a barrister for your legal matter we will ask the barrister to provide a written estimate of his or her fees, confirm that the estimate is acceptable to you and request that you deposit monies into our trust account to enable us to pay the barrister's fees. We will not be required to accept or complete your instructions or do further work on your legal matter until those monies have been deposited into our trust account. Note: Under Rule 99(c) of the South Australian Bar Association Inc. Barristers' Conduct Rules a barrister may refuse or return a brief if the solicitor does not agree to be responsible for the payment of the barrister's fee. The usual practice is for the barrister to require such agreement. As such, we must ensure that arrangements have been put in place for the payment of the barrister's fees before engaging the barrister.


4. Goods and Services Tax

4.1 You agree to pay or reimburse to us the GST applicable to the supply of any services by us under these Terms and Conditions or otherwise added to the legal costs relating to your legal matter.

4.2 Professional fees and file costs invoiced by us attract goods and services tax ("GST"). We will render a tax invoice that identifies the GST component. The GST component is payable by you in the same manner as the fees and file costs to which it relates. Disbursements paid out of monies in trust or using a cheque supplied by you, may also attract GST. We will if required request that the third party provide a tax invoice to you.


5. Estimate of Legal Costs

5.1 Where reasonably practicable we will provide to you an estimate of the total legal costs for your legal matter. Where it is not reasonably practicable, we will provide a range of estimates of the total legal costs and an explanation of the major variables that will affect those costs. An estimate will only include file costs and disbursements known to us when the estimate is given. Note: The total legal costs will vary depending upon the complexity of the legal matter, the extent of legal work required and other factors that cannot be quantified or accurately predicted in advance. An estimate is our opinion based on the information known to us at the time when the estimate is given. Some information may not be known or only emerge much later. The estimate may also be based on information supplied to us by another person (such as a barrister). In some legal matters complexities may emerge which were not anticipated or included in the original estimate. Note: The major variables that are likely to affect the total legal costs in your legal matter are summarised in our article entitled legal costs generally.

5.2 We emphasise that an estimate is not a quote or agreement for a fixed fee and is not binding on you or us. The legal costs billed to you will be based on the legal work actually done and the fees, file costs and disbursements actually incurred.


6. Litigation Matters

6.1 The legal costs described in Clause 3 are payable by you to us whether or not you have the right to recover monies (including legal costs) from another person.

6.2 In a litigious matter the court or tribunal may order a person to pay another person's legal costs. If the court or tribunal makes such an order, those costs will be calculated on the scale of costs used by the court or tribunal and are likely to be less, sometimes substantially less, than the legal costs you have agreed to pay us. Only in exceptional cases will a court or tribunal order that a person pay all of another person's legal costs. Note: Please read the article entitled Court costs for more information about court ordered costs (which includes estimates of the range of costs that you may recover if successful or which you may be ordered to pay if unsuccessful). It is also important to understand that a costs order of a court or tribunal in your favour does not guarantee that you will recover the costs. The recovery of the legal costs also depends upon the other party's capacity to pay. You may also have to incur further legal costs to enforce the costs order of the court of tribunal.

6.3 If we negotiate a settlement on your behalf, before the settlement is agreed we will give you a reasonable estimate of the legal costs payable by you if the matter is settled (including any legal costs that you may be required to pay to another party). If applicable, we will give you a reasonable estimate of any contribution towards your legal costs that is likely to be received from another person.


7. Billing

7.1 An itemised bill will be provided to you showing how our legal costs are made up.

7.2 A bill will be rendered upon completion of your legal matter if it is not protracted. If your legal matter is protracted bills will be rendered on an interim basis provided that no bill will be rendered less than 21 days after the delivery of a previous bill.

7.3 If we have discounted our legal costs, the discount will only be valid for 14 days from the date of the bill and conditional upon us receiving payment in full within that period. If payment is not received within that period we may render an amended bill reversing the discount.

7.4 If payment of our billis not made within: (a) 14 days we will be entitled to cease work on your legal matter and/or exercise any other legal rights or remedies that we may have; (b) 30 days we will be entitled to charge interest equal to 2% above the Reserve Bank of Australia Cash Target Rate as at the date of the bill.

7.5 Bills rendered by third parties will be payable in accordance with the trading terms of the third party.

7.6 The following avenues are available to you if you are not happy with a bill from us: (a) Request an itemised bill. (b) Discuss your concerns with us. (c) Having our costs adjudicated. (d) Applying to set aside our costs agreement. (e) Making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging).


8. No Apportionment

Where we act for you and another person in the same legal matter both of you will be responsible for the payment of our bills whatever arrangements may be made between you. You agree that you will be responsible for the payment of our bills in full irrespective of the liability of any other person.


9. Security for Legal Costs

9.1 We may request that you provide security for the payment of legal costs. If we have requested that you provide security we will not be required to accept or complete your instructions or perform any work on your legal matter until the security has been provided. The cost of preparing and completing the security will form part of the legal costs relating to your legal matter.

9.2 Whether or not we request security, you agree that we will have the first ranking charge over any monies that are due or payable to you by another person in connection with your legal matter. You irrevocably authorize us to direct that person to deposit the monies into our trust account in respect of your legal matter. You agree that upon the deposit of the monies into our trust account we may give a valid discharge to the person on your behalf. You also agree that monies deposited into our trust account in respect of your legal matter may then be applied to pay outstanding legal costs provided that we have complied with Clause 10.3.

9.3 Where our client is a company we may request its directors to provide a personal guarantee as security for the payment of legal costs. If we have requested the directors to provide a guarantee, we will not be required to accept or complete your instructions or perform any work on your legal matter until the guarantee has been provided. The cost of preparing and completing the guarantee will form part of the legal costs relating to your legal matter.


10. Deposit and Withdrawal of Trust Monies

10.1 We may from time to time request that you deposit monies into our trust account to meet anticipated legal costs. If we have requested that you deposit monies into our trust account, then we will not be required to accept or complete your instructions or perform any work on your legal matter until those monies have been deposited.

10.2 Without limiting Clause 10.1, if your legal matter involves litigation we will ask that you deposit into our trust account, at least 21 days prior to the trial date, monies reasonably estimated by us to cover the full cost of the trial including any barrister's fees, witness fees, court charges and our anticipated legal costs. We will not be required to prepare your legal matter for trial or accept or complete your instructions or perform any work on your legal matter until those monies have been deposited.

10.3 You irrevocably authorise us to withdraw monies deposited into our trust account to pay outstanding legal costs relating to your legal matter. However, if the monies have been deposited for the express purpose of paying a specific disbursement then they will be used to pay that disbursement. An example of this would be the deposit of monies into our trust account specifically to pay a barrister engaged in respect of your legal matter. However, before we withdraw monies from our trust account for the payment of legal costs, we will give you: (a) a request for payment, referring to the proposed withdrawal; or (b) written notice if withdrawal; or (c) a bill relating to our legal costs.


11. Investment of Trust Monies

11.1 We are not required to invest monies deposited in our trust account unless you request us to do so in writing. We are not a licensed financial adviser and cannot provide investment advice. Any investment must be specifically chosen by you based on your own independent judgment and financial advice. The investment will be at your risk and expense in all things. We may charge professional fees for our time in carrying out your instructions to invest or redeem trust monies.

11.2 We may ask that you provide a tax file number for the purpose of making or redeeming the investment. You are not required to provide a tax file number but TFN Withholding Tax may be deducted from the monies that have been invested if you do not provide a tax file number.


12. Transfer of Trust Monies

Where monies are deposited into our trust account in respect of your legal matter, you agree that we may transfer those monies to any other legal matter in which we act for you for the purpose of paying outstanding legal costs except where the monies have been deposited into our trust account for the payment of a specific disbursement.


13. Giving Instructions

13.1 You and any person who you authorise to give instructions in respect of your legal matter must provide instructions to us as and when necessary to progress your legal matter. You agree to reply to correspondence, emails and return telephone calls when reasonably required. If you do not provide instructions to us as and when necessary we may be unable to progress your legal matter and may cease to act for you. We may require your instructions in writing as a condition of carrying out those instructions.

13.2 You must promptly inform us of any change to your instructions upon becoming aware of the change or any other circumstance that may materially affect your or any authorised person's ability to provide instructions or that may materially adversely affect your ability to pay our legal costs.

13.3 We are not required to accept or complete your instructions if they are false or misleading and in that event we may cease to act for you.

13.4 In the case of any allegation of criminality, fraud or serious misconduct against another person, we cannot implement your instructions unless the allegation is relevant to your legal matter and there are reasonable grounds supported by evidence or other material to justify the allegation.


14. Performance of Legal Work

Subject to our rights and remedies we agree to follow your competent, lawful and proper instructions, provide legal services in respect of your matter as competently and as promptly as is reasonably practicable, act in your best interests in any matter in which we represent you and assist you to understand the legal issues relevant to your matter and make informed choices reasonably available to you.


15. Basis for Legal Advice

The legal services that we provide will be based on the law and court decisions in force at the time that we provide the services and will not take into account pending changes to the law or unresolved appeals from court decisions. You should not rely on legal advice that we have previously provided to you without first checking with us whether there have been any material changes to your circumstances, the law or court decisions that may affect that advice.


16. Confidentiality

16.1 We will not communicate to any third party any confidential information concerning you or your legal matter and will where appropriate assert legal professional privilege. However you authorise us to disclose information relating to your legal matter in any of the following circumstances: (a) To the extent necessary to carry out your instructions. (b) Where the information has lost its confidentiality. (c) Where we are required by law or a court or tribunal to disclose the information. (d) For the sole or dominant purpose of avoiding the probable commission of a serious criminal offence. (e) To prevent imminent serious physical harm to you or another person. (f) To our insurer, the Legal Profession Conduct Commissioner, The Law Society of South Australia, or a competent statutory authority having a lawful right to compel the production of the information.

16.2 Legal costs incurred in resolving or maintaining any claim for confidentiality or legal professional privilege on your behalf are charged and billed to your legal matter.


17. Taxation Advice

Unless we expressly agree in writing, the scope of the legal work that we undertake for you does not include the provision of advice on the taxation or revenue implications of your legal matter. It remains your responsibility to obtain independent accounting and financial advice concerning any taxation or revenue implications that affect your legal matter.


18. Cease Acting

We may cease to act for you for a serious or repeated breach of these terms and conditions. If we cease to act then we will not be required to accept or complete your instructions or perform any work in respect of your legal matter. If we elect to do any of those things this will only be on the basis that you have remedied the breach to our reasonable satisfaction.


19. Termination

19.1 You have the right to terminate our retainer under these Terms and Conditions by giving written notice of termination to us. We have a like right to terminate our retainer if there is good cause. Examples of good cause would be we have ceased to act for you, a conflict of interest emerges or the necessary relationship of trust and confidence no longer exists between us.

19.2 If the termination of our retainer requires the leave, permission or order of a court or tribunal, then any termination shall be subject to the court granting such leave, permission or order and these Terms and Conditions will continue to apply until such leave, permission or order is granted.

19.3 We will not be required to complete your instructions, perform any further work or accept any instructions after our retainer has been terminated. If your legal matter involves litigation, you agree that you will promptly file in the appropriate court or tribunal a notice that you are acting in person in the litigation in which we have been acting for you.

19.4 All legal costs incurred prior up to and including the date of termination remain payable by you. Legal costs that have not been billed are immediately billable to you. Subject to any order by a court or tribunal, you agree that we may retain all monies, documents, files and records relating to your legal matter until our bills have been paid.


20. Parties and Conflicts

20.1 Should you and another person instruct us to act in the same legal matter, then you agree that by giving those instructions you consent to us acting for both parties even although this may require us to act in a manner that may otherwise be contrary to your best interests viewed independently. You also agree that we may disclose confidential information concerning you and your legal matter to the other person. However, if a conflict of interest of a legal nature does arise, you agree that we may cease to act for you or the other person or both.

20.2 We will not intentionally become involved in a legal matter where there is a conflict of interest of a legal nature between us, you or another person. If through inadvertence or unforeseen circumstances a conflict emerges then we may be obligated to cease acting for you and terminate our retainer under these Terms and Conditions.

20.3 Should you instruct us to act against another person for whom we have previously acted and we agree to do so, then you agree that we may cease to act if it would otherwise be improper for us to continue acting for you even if there is not a conflict of interest of a legal nature. An example of this would be where acting for you could lead to the use of confidential information relating to the other person without his or her consent.

20.4 Legal costs incurred in resolving any conflict will be charged and billed as a separate legal matter and not included as part of any fixed fee agreement that has been provided to you in any legal matter.


21. Property in Files

21.1 Documents created by us in the course of your legal matter remain our property. Where you have requested a copy of any document, the cost of providing that copy will be charged to your legal matter as a photocopying cost. We shall be not required to provide any documents or a copy to you if our legal costs have not been paid.

21.2 Documents that you provide to us remain your property and will be returned on request or at the completion of your legal matter.


22. Copyright

We own the copyright and intellectual property in all documents that we prepare for you in respect of your legal matter. You may use those documents without restriction for the purpose that they are supplied, but may not copy them or re-use them without our prior written agreement.


23. Post Completion

23.1 Our professional obligations to you end upon completion of your legal matter or the termination of our retainer under these Terms and Conditions. In the event of any of those things, your file will be closed and we will have no obligation to provide any further legal services to you and are not responsible for stored documents. Our practice is to destroy documents and files after they have been stored for 7 years and you authorise us to destroy our file relating to your legal matter 7 years after closing our file.

23.2 If we do agree to store documents for you then the bailment thereby created shall be deemed to be for your sole benefit and we will not be liable for the risk of loss or damage to the documents. We may charge you a reasonable fee for the storage or retrieval of documents.


24. Disputes and Liability

24.1 You agree that any complaint regarding your legal matter shall be initially dealt with by mutual discussion. We and you agree to use all reasonable endeavours to resolve the complaint by discussion and where a resolution is reached to promptly record the resolution in writing and carry out the terms of the resolution.

24.2 If the complaint relates to legal costs, then the avenues referred to in Clause 7.6 are available to you even if you have not discussed the complaint with us.


25. Limitation of Liability

You agree that, to the extent permissible by law, our liability to you for any loss and damage is limited to and shall not exceed the amount that we are able to recover from our insurer. You also acknowledge and agree that our liability is limited by a scheme approved under Professional Standards Legislation.


26. Entire Agreement

These Terms and Conditions represent the entire agreement between you and us and any other statements or representations concerning the subject matter of these Terms and Conditions are hereby expressly negated to the full extent permitted by law applicable in South Australia.


27. Applicable Law

These Terms and Conditions are governed by the law of South Australia and we and you agree to submit to the jurisdiction of the courts of that State in respect of anything relating to these Terms and Conditions. We and you also agree that the courts of that State are the proper and most convenient forum for dealing with any legal dispute under these Terms and Conditions. Note: This also means that the law of South Australia applies to legal costs in relation to your legal matter.


28. Variation of Terms and Conditions

You agree that we may vary these Terms and Conditions from time to time. We will publish any variation on this web site before it takes effect. Any variation will only apply to legal matters in which you first instruct us after the publication of the variation, unless we are required by law to apply the variation to all legal matters in which we act.


29. Compliance with Law

Nothing in these Terms and Conditions shall be interpreted as requiring us or you to do anything contrary to the law applicable in South Australia.


30. Notices

Notice under these Terms and Conditions may be given by any lawful means including by email transmission to the last known email address of the intended recipient of the notice. Where notice is sent by email transmission it will be deemed to be received by the intended recipient on the next business day unless the email transmission is returned to the sender undelivered. In the case of any dispute concerning the giving of notice, the person giving the notice shall bear the onus of proving that notice was sent and the intended recipient of the notice shall bear the onus of proving that the notice was not received.


31. Interpretation

In this offer where the context requires or permits: "we", "us" and "our" refer to Allen Burtt Legal Services. "you" and "your" refers to the client and includes any person to or for whom we provide legal services when carrying out such instructions. "instruct" and "instructions" refer to instructions to perform legal work in a your legal matter. "person" includes an incorporated association, company, each partner of a partnership and each trustee of a trust. The plural includes the singular and vice versa. Words defined in Schedule 3 of the Legal Practitioners Act 1981 (S.A.) have the same meaning in these Terms and Conditions. If any provision of these Terms and Conditions is void, voidable or unenforceable, then such provision shall be read down so that it is valid and enforceable. If such provision cannot be read down, then it shall be severed with the other Terms and Conditions remain in full force and effect.


NOTES:

1. Applicable to new legal matters in which instructions are received on and after 1 July 2014.

2. Schedule 3 of the Legal Practitioners Act 1981 (S.A.) requires legal practitioners to disclose various things relating to legal costs and for adjudication of disputed costs. The Schedule automatically applies if the client first instructs the law practice in relation to the legal matter in South Australia. It can also apply in other circumstances, including where the law practice engages in legal practice principally in South Australia and has offered to enter into an agreement that Schedule 3 is to apply.