Thank you for instructing Etienne Lawyers to act on your behalf upon the Etienne Lawyers Business Start Up package.
It is our practice to confirm with our clients, the terms of the Business Start Up package.
Pursuant to our legal requirements under the provisions of the Legal Profession Act 2004 (the “Act”), we provide the following disclosure in respect of our fees and charges. This letter is intended to serve both as a disclosure pursuant to the Act and as an agreement in relation to the professional services which we will be performing on your behalf and the basis upon which our fees are to be calculated.
Before instructing us to continue on this or any matter, you should understand:
| (a) | The nature and extent of the work that we are going to perform on your behalf. |
| (b) | The probable cost of the matter. |
| (c) | The possible expenses for which you may become liable including our fees and disbursements and also the fees and disbursements of other parties that you may be required to bear. |
| (d) | The method by which you are to be charged for our service. |
| (e) | The time at which you are required to pay our accounts. |
| (f) | The appropriate avenues for expressing any dissatisfaction with our performance. |
Independent Legal Advice
You have the right to obtain independent legal advice before entering into this costs agreement.
Scope of Work
The scope of work excludes all forms of litigation. If Etienne Lawyers is requested to undertake litigious work a separate retainer will be required.
Under the Etienne Lawyers Business Start Up package Etienne Lawyers will provide the following commercial services for you and your business:
- Terms and conditions of trade for your business;
- Credit application;
- Charge documentation for money you may lend to the entity that conducts the business;
- Employment agreements;
- Consultancy agreements;
- Distribution agreements;
- Advise on real property leases;
- Advise on equipment and finance leases;
- Establishment of a family trust;
- Incorporation of a corporation;
- Trade mark application for any trade marks of the business;
- Documentation effecting a sale of an existing business to a company; and or
- Shareholders agreement.
Persons Responsible for the Work
We confirm that [the key contact person] will be primarily responsible for the work.From time to time it may be that other people within our office will assist with the conduct of this matter on your behalf.
Our Charges (fees and other expenses)
Our charges for carrying out the work referred to in Scope of Work above will be calculated on a time basis (as set out in the attached Terms and Conditions) with the exact charge to you depending upon how much time is involved in completing the work.
Present Estimate of our fees and expenses
The actual amount of our fees will depend upon the exact time spent in relation to your matter.We estimate that our fees (together with disbursements, counsel’s fees and other charges that we will incur on your behalf) for completing the work described in clause 1(a) above will total approximately $15,000.00.
Costs-when payable
We will only charge you our professional fees after 18 months after we are first engaged or upon the sale or amalgamation of the business if that occurs earlier.
Payment of Our Charges
You have two options of how to pay our charges.
Option 1 – Payment of charges over time
We will provide the scope of work upon securing a charge or traders bill of sale over the business, (as the case maybe). No payment will be required until after 18 months of our first being engaged. Interest will accrue on our fees at the rate of 12% per annum and you will pay the fees after 18 months at the minimum rate of $1,000 per month until the charges with interest are paid in full.
Option 2 – Redeemable Preference Share Profit Participation over time
We will receive a redeemable preference share in your company with the following rights and entitlements:
- the right to receive 7.5% of profits of the business each year;
- the right to receive upon the sale of the business 7.5% of the purchaser price of the business;
- the company will have the right at any time to redeem the redeemable preference share by paying to us our charges plus interest accrued and capitalized at the rate of 10% per annum. Any payments made by way of profit distribution will not be set off from the amount payable upon a redemption of the redeemable preference share. For example: If the charges are $15,000.00 and $5,000 has been paid by way of dividend under the redeemable preference share, then to redeem the share the $15,000 plus interest must be paid.
Joint and Several Liability
Where we have multiple clients named above, each person is jointly and severally liable for the full amount of the costs, fees and disbursements rendered from time to time.
Where the client is a corporation we are to act for the Company under the instructions of the directors jointly or severally.
In consideration of our acting upon the instructions of the directors each named director in this retainer agrees to guarantee and indemnify Etienne Lawyers for the due and punctual payment of all costs, fees and disbursements.
Our Terms of Engagement
A copy of our standard terms of engagement is enclosed. These terms will apply to all work performed on your file (except where those terms are varied in this letter).
Acceptance of Agreement
You must accept the offer in writing by entering into a charge with us as per option 1 or having your company issuing a redeemable preference share as per option 2.
General Terms
If you have any concerns whatsoever about the matters set out or contained in this costs disclosure and retainer agreement, please telephone Steven Brown immediately to discuss those matters. If you are not happy for us to proceed with work on the basis of these terms then you must advise us immediately.
We are always ready and willing to discuss any matters or concern in the interests of providing the best service possible.
Application of Retainer
These Terms and Conditions apply to all services provided by Etienne Lawyers to you and if applicable are to be read in conjunction with any other letter or email sent to you covering letter. If there is any inconsistency, the provisions of the covering letter will prevail.
Management and Supervision of Work
A lawyer or law clerk is allocated the responsibility of managing each new file and will be your prime contact. He or she will do most of the work on your file but may be assisted by others where their special skills or experience is needed. This is often the case given the increasing complexity in the legal environment. Occasionally it becomes necessary to change the contact person for your file and if that happens we will let you know who the new contact person is. Every file also has a Partner nominated to oversee the work done (called the Supervising Partner).
Billing Arrangements
In general, we will send you an interim account detailing the work done and the time spent on the work as well as any disbursements incurred at the end of each month while the work is in progress and a final bill on completion of the matter.
All bills are payable in accordance with the option you elect to pay the charges under. If bills are not paid within the time, then we reserve the right to:
- charge interest; and
- cease acting on that file and any other current file that we hold for you, or for any related client (this includes companies which are related to or controlled by you).
You are principally liable for our bills even though someone else may have agreed to pay the bill or to reimburse you for the bill.
Work charged on a time basis
Work which is not the subject of a specific quotation will be charged on the basis of the time we spend attending to it. Each file has an opening fee (presently $40.00).
Our hourly rates vary with the experience and specialist skills of our staff and are currently:
| Position | Hourly charge Out Rate (inclusive of GST) |
| Principal | $660.00 |
| Consultant | $660.00 |
| Senior Solicitor | $550.00 |
| Junior Solicitor | $330.00 |
| Paralegal | $220.00 |
Parts of an hour are charged proportionately, based on six minute units. All attendances (including telephone attendances) are recorded. Time will be recorded for all activities by all personnel taking part in the operation of the file including incoming and outgoing phone calls, incoming and outgoing letters and documents, research, travelling and all other attendances. Our fees include secretarial services, local phone calls, email transmissions, incidental photocopying and local faxes.
The hourly rate specified above are changed on 1 July each year and therefore any matter which spans more than one financial year is likely to reflect a change in the hourly rate charge from 1 July onwards. We reserve the right to alter or change our hourly rates from time to time.
You may minimise your legal fees by avoiding unnecessary telephone calls and attendances and, when requested, providing accurate information promptly.
Service Charges
We will also charge you for photocopying, outgoing facsimiles, long distance telephone charges, file opening fee and law stationer’s fees at our standard rates. These rates are currently:
If it is necessary to recover files from outside storage, those costs are payable by you.
Disbursements
We will either charge you, or pass onto you for payment, all other Out-of-pocket expense which we need to incur and which have not already been detailed. This could include such things as State and Federal duty, Government fees, stamp duty, agent’s fees, barrister’s fees, courier and filing fees, postage and other delivery charges, searches, taxis and stamp duty where relevant.
Amended Accounts
We reserve the right to issue you with an amended account at any time prior to the account being paid.
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Email transmissions
Since email is a legal method of simple and effective communication we will send most communications to you via email. If you do not require communication by email please request us and inform us of the method of communication you wish us to use.
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Assessment of Accounts
The Act gives you the right to have the charges in an account assessed by an assessor appointed by the Supreme Court, unless those charges are pursuant to a retainer or costs agreement in accordance with the Act. Under Division 6 of the Act, you have a right to have our costs reviewed, in whole or in part, even if they are wholly or partly paid.
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Retention of Documents
On completion of the work, we will retain in our document safe the original documents which you request us in writing to keep. Other documents and papers will be kept by us for a period of seven years after which time they will be destroyed with our file.
We are entitled to retain possession of papers and documents while money is owing to us for our charges and expenses.
Your files in a particular matter will normally be destroyed seven years after completion of the matter unless you instruct us in writing to the contrary. However, important original documents will be retained in safe custody or returned as you may direct. Please note that should you require the Firm to hold documents on your behalf in our safe custody facility, we will not charge for this service. However, documents are stored at your risk. You are strongly encouraged to make your own insurance arrangements to cover the perceived value of the relevant documents.
Original documents such as Wills and Certificates of Title are, of course, retained without limit and without charge until they are used or become obsolete.
Goods and Services Tax
The above costing arrangements include GST.
The account provided to you will be a tax account for GST purposes and will clearly show what items have had GST added.
The amount payable for any supply made under or in accordance with this arrangement on or after 1 July 2002 shall be increased by the GST imposed or in respect of that supply, if that supply is a “taxable supply”.
If at any time we are required to pay GST in respect to any supply made by us under or in accordance with this agreement you shall in addition to any other monies due and payable by you, pay to or reimburse us on demand the amount of any such GST.
If at any time we are required to pay GST in respect of any supply made by a third party (disbursement) you shall pay to that third party on demand the amount of such GST provided that we must pay to you an amount equal to the amount of any input tax credit claimable or to be claimed by us or on our behalf in respect of such supply.
You agree to do everything necessary to assist us to claim a GST input tax credit in respect of any taxable supply.
Any non payment or non reimbursement of GST by you to us or any non payment of GST by you to a third party pursuant to this agreement shall be treated as a fundamental breach of this agreement and have the same consequences under this agreement as non payment of any other monies due and owing by you.
Likewise, any non payment or non reimbursement by us pursuant to clause 3 will have comparable consequences.
For the purposes of this agreement: –
“Act” means the Legal Profession Act.
“GST” means the goods and services tax or similar tax imposed by and defined in the GST law.
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other Act specified in section 195-1 of that Act or any Act or Regulation pursuant to, associated with, amending or replacing that Act.
“input tax credit”, “supply” and “taxable supply” have the same meanings as the “GST law”.
Payments
Payments to Etienne Lawyers can be made: –
(a) direct to this office by cash or cheque;
(b) by depositing into our office bank account. The details of our account are as follows:
| Name: | Etienne Lawyers (Trust Account) |
| Bank: | Westpac Banking Corporation |
| Branch: | Cnr Market & Clarence Sts Sydney NSW |
| BSB: | 032-016 |
| Account No: | 31-7391 |
Failure to pay accounts or provide funds
For unpaid accounts, you will be liable to pay us interest at our current overdraft rate on any outstanding accounts which go past our trading terms. You authorise us to deduct and pay any accrued interest first from any funds received from you prior to paying the principal amount.
In the event that an account remains unpaid or funds that are requested by us are not forthcoming, Steven Brown may choose not to continue to act. We must adopt this practise in order to ensure prompt payment of accounts and continuity of service.
In some matters our failure to continue to act may lead to cost or other detriment being incurred by you for which you understand and agree that we cannot be held responsible.
For all matters where an account rendered to you remains outstanding for in excess of 90 days, work on the matter will automatically cease.
We reserve the right to require you to pay money into our trust account on account of future fees and costs, before we proceed with work on your file. We may also require you to pay money into trust before we brief barristers or incur other expenses on your behalf.
Instructions
We rely on you to provide clear and detailed instructions. If we cannot obtain the instructions we need to do the work properly, then we reserve the right to cease acting.
If you suffer loss as a result of our negligence and you have contributed to that loss by your own negligence, you agree that such loss will be apportioned between us as a Court considers fair.
Client service
If you are dissatisfied at any time with the service provided by the firm, we encourage you to speak with the Supervising Partner for the file.
We strive to maintain high standards of service and take any client complaints very seriously. We encourage open discussion about our performance.
Copyright
We retain copyright and other intellectual property ownership rights in the work that we do for you and the material we produce for you.
Termination
Either of us may terminate this Agreement at any time, by notice in writing. In either case, you will be required to pay our professional charges for work done, and for the charges and disbursements incurred, up to the date of termination.
Privacy
By instructing us you give your permission for us to send you information or material and to provide your name and address to related parties for them to provide you with information or material.
Authorisation to Transfer Money from Trust Account
You authorise us to receive money directly into our trust account any judgement or settlement money, or money received from any source in furtherance of your work, and to pay ourselves our costs, disbursements and expenses upon sending you our bill of costs requesting payment.