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Our General Terms of Business

The  Legal  Profession  Act  (NSW)  2004,  (the  Act)  requires  us  make  various  disclosures  including  disclosing  the  terms upon which we provide our services. The following general terms, when read together with our engagement letter (which sets out the  scope  and  estimated  cost  of  the  work  you  require  us  to  perform),  will  constitute  our  offer  to  provide  you with  legal services and our offer for you to enter into a costs agreement with us.

1. The Work

The  scope  of  the  work  will  be  set  out  in  our
engagement letter which will be forwarded to you:

  • For  new  clients -  upon  receipt  of  your  client application form and your instructions; or
  • For   existing   clients - upon   receipt   of   your instructions.
2. Acceptance of engagement

When  you  receive  our  engagement  letter,  you  may enter  into  a  costs  agreement  with  us  orally  or  in writing  or  by  signing  and  returning  the  engagement letter to us. If you do not provide us with your written objection  to  our  offer  to  provide  you  with  legal services  and  continue  to  instruct  us,  we  will  assume that the terms of our offer are accepted and we will provide our services on these terms and those in the engagement letter. Upon acceptance you agree to pay for our services on these terms.

3. Estimate of fees and expenses (costs)

The Act requires us to provide you with an estimate of our costs. This can be difficult as costs can be influenced by factors outside of our control.

Our engagement letter will include the estimate of our costs. Please note that this is an estimate only and not a fixed quote and our costs may exceed the estimate. While the estimate will be 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 impact on these matters. In this event we will provide you with a revised estimate for approval.

We are required by the Act to notify you of any substantial change to any matter affecting our costs as soon as is reasonably practicable.

4. Calculation of fees and expenses

Generally our fees (including fees that are fixed by agreement with you) are based on hourly rates as disclosed in our retainer letter. Where we bill on an hourly rate basis, each hour of work is divided into 10, 6 minute time units. We charge 1 unit for each attendance like a letter or a telephone call whether by a professional or by our support staff which takes 6 minutes or less. Attendances, which take longer than 6 minutes, are charged according to the number of units required to perform those tasks and are rounded up to the nearest 6 minute time unit.

Certain of our fees are fixed by law in relation to probate and administration matters. For further details see the attached Schedule.

Lawyers and paralegals perform all legal services. The work carried out by support staff is work which does not require the skill of a lawyer or paralegal such as filing, serving documents, searching records, making certain telephone calls and delivering documents.

In addition you will be responsible for expenses which we incur on your behalf in carrying out your instructions. Examples of these expenses are also set out in detail in the attached Schedule.
For administrative convenience, certain expenses such as internal copying charges, telephone expenses, printing, postage, bank charges and file retrieval charges will be collected under the heading “Expenses (internal)”. You can request a breakdown of these amounts at any time.
 
If you instruct us to brief a barrister or other expert, we will obtain a written disclosure of their fees for your approval.

Our costs 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 (which may be revised accordingly). You will be given at least 30 days’ notice in writing of any foreshadowed changes to our charge out rates.

5. GST

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 these charges.

6. Billing arrangements

Our usual policy is to bill on a monthly basis but we may issue tax invoices on a more frequent basis depending on the nature of the work (for example, Family Law matters are generally billed fortnightly and Property Law matters may be billed at specific stages which will be identified in our engagement letter). All accounts are due and payable 14 days from invoice date.

All accounts are prepared in Australian currency and hence we require all accounts to be paid in Australian currency. If accounts are paid in the currency of an overseas country you will be liable to meet all costs incurred in connection with converting money to Australian currency including but not limited to conversion fees and transfer fees.

7. Funding of matters

Unless otherwise agreed with you (for example, in certain property matters), we require a matter to be fully funded as it progresses (for example by your making suitable credit arrangements).

In relation to contested matters we require, amongst other things, that adequate monies on account be received at least 6 weeks before the impending trial or other proceeding, in respect of all substantial anticipated expenses to be incurred in connection with the trial or other proceeding. These expenses include: the fees of counsel, expert witnesses, and where applicable, mediators and arbitrators.

If monies on account are not provided as required above, then (without prejudice to any other rights) we may cease providing services until the situation is resolved to our satisfaction or cease to act altogether.

8. Payment Methods

There are several payment methods available for the payment of accounts including cheques, electronic funds transfers, credit cards, allocation of funds held in trust.

  • Credit card authorisation
    To start working on your instructions, we may require you to provide us with your credit card details where indicated on the relevant client application form. By providing your credit card details you irrevocably authorise us to debit the amount outstanding from your credit card on the due date of payment being 14 days from invoice date unless your account has been paid or you have objected to the tax invoice in the interim. A surcharge may apply if you are paying by credit card. Please see the attached Schedule for credit card charges.
     
  • Funds deposited into our Trust Account
    As noted above we may ask you to pay us money on account of our fees and expenses. That money may be applied to pay our account 14 days from invoice date providing we receive no objection from you.
9. Credit provided by us

All credit is approved at the discretion of Swaab Attorneys and may be withdrawn at any time for any or no reason upon the provision of written notice. In the case of corporate and trust clients, the provision of credit may be conditional upon a deed of guarantee being entered into between individuals of that entity, and us. If this is the case, we will provide you with a deed of guarantee for execution.

If any credit limit extended by us is exceeded by you or withdrawn by us, and appropriate alternative arrangements are not put in place, then (without prejudice to any other rights) we may cease to continue to provide services until the situation is resolved to our satisfaction or cease to act altogether.

10. Interest charges

Interest at the maximum rate prescribed in Regulation 110A of the Legal Profession Regulation 2005 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 relevant interest rate is also available upon enquiry.

11. Recovery of costs

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.

12. Caveat

If costs are outstanding to the firm by you, you grant us an equitable interest in any real property (to the extent it is owned by you) which entitles the firm to lodge a caveat over that real property to secure the repayment of the sum of those outstanding costs, any interest charged in accordance with these terms (or interest otherwise payable under law) and any costs incurred when seeking to recover those costs and interest, and you also grant us a mortgage or a charge over any real property to the extent it is owned by you to secure the recovery of those costs and interest.

13. Recovery of costs if the matter involves

litigation or becomes litigious If your matter concerns litigation or becomes litigious then, depending upon the nature of the litigation, an order may be made requiring another party to pay your costs of the proceedings. Any cost order does not affect your responsibility to pay our costs. It must be pointed out that even if an order is made in your favour, in most jurisdictions, you will generally only be entitled to recover in the order of 60-70% of costs incurred on your behalf, and in some jurisdictions recovery can be even less.

It is also possible that the court may order you to pay another party’s legal costs (for instance if you lose the case). Those costs will be additional to the costs payable to us.
Where applicable, our engagement letter provides estimated ranges of likely cost recovery if you are successful or if you are unsuccessful in the litigation.

14. Your rights

It is your right to:

  • negotiate a costs agreement with us;
  • receive an account in respect of legal services provided;
  • demand and receive an itemised account within 30 days of receipt of a lump sum account;
  • be notified as soon as is reasonably practicable of any substantial change to any matter affecting our costs;
  • request in writing, and our obligation to provide, 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.

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 as a consumer under the Australian Consumer Law.

15. Your rights in relation to a dispute concerning costs

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 in an open and frank manner, so that any issue can be identified and we can have the opportunity of resolving the matter promptly, without it adversely impacting on our business relationship.
  • you may apply to the Manager, Costs Assessment, in the Attorney General’s Department for an assessment of our costs. This application must be made within 12 months after the bill was provided or request for payment made or after the costs were paid in full, whichever is the earliest.
  • 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.
  • you may refer a dispute about an account to the Law Society Council or the Legal Services Commissioner for mediation if the amount in dispute is less than $10,000.
16. Waiver

The Act requires, generally speaking, that unless you agree in writing to waive the right to disclosure, our standard terms must be provided to you every time we do work for you. Under this clause 16 you waive your right to a further copy of our standard terms for a period of 12 months, (unless we amend those terms) although we will continue to provide you with estimates as to your legal costs.

17. Your rights in relation to costs where work concerns a jurisdiction outside New South Wales

Where the work you require us to do concerns a jurisdiction outside NSW, you may:

accept a written agreement with us which requires that the cost regulations of that jurisdiction shall apply to the work you require us to do; or

notify us under the law of that jurisdiction that you require the cost regulations of that jurisdiction to apply to the work you require us to do. Any such notification must be made within any time limit so stipulated in that jurisdiction.

18. Retention and copying of your documents

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 7 years after the date of our final tax invoice. This 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 our file to you or as directed by you (as per the attached Schedule).

19. Termination by us

We may cease to act for you or refuse to perform further work, amongst other things:

  • 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 future 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 written notice of termination of our services, together with the grounds upon which that termination is based. You will be required to pay our costs incurred up to the date of termination.

20. Termination by you

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 time of termination (including if the matter is litigious, any cancellation fees for which we remain responsible).

21. Privacy

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. Our privacy policy may be viewed on our website www.swaab.com.au and is also available on request.

22. Confidentiality

At all times we will seek to maintain the confidentiality of your information. However, we may be required to disclose confidential information if required by law, subject to any claims of confidentiality or claims for privilege you may instruct us to make. We may also, on a confidential basis, provide your information to associated third parties where we consider it is appropriate for the proper conduct of your matter.

23. Sending material by email

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 you ask us to 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.

24. Consent to receiving newsletters and other publications

We shall assume you consent to us sending you newsletters (both in electronic and hard copy form) from time to time. If you no longer wish to receive such material please notify us by emailing your request to mail@swaab.com.au.

25. These terms survive termination

The termination of our arrangements with you does not affect the provisions of these terms which are intended or expressed to have effect thereafter including but not limited to paragraphs: 7, 8, 9, 10, 12, 13, 14, 15, 18, 20, 21, 22, 23, 24, 25.

26. Governing Law

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

27. Notice

Notice shall be deemed to be properly served when given in writing and sent to the address or email address last notified by the other party. Notice may be served by mail or email transmission. If sent by mail, notice will be deemed to have been given 48 hours after posting. If served by email, notice will be deemed to have been given on the same day as transmission.

Association Memberships
Tristan Jepson Memorial Foundation
  • 2017 - Winner Lawyers Weekly 30 Under 30 Awards
  • 2017 - Finalist Lawyers Weekly Australian Law Awards
  • 2017 - Finalist Lawyers Weekly Women in Law Awards