These Terms & Conditions, together with any covering letter we may provide to you (collectively Engagement Letter) contain the terms on which My Legal Advisor (referred to in the Engagement Letter as ‘we’, ‘us’ and ‘our’) provides legal services. It also includes certain disclosures that may be required under Division 3 of Part 4.3 of the Legal Profession Uniform Law (Vic) (Act).

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The Engagement Letter constitutes an offer to enter into a costs agreement, within the meaning of the Act, with the client noted in the covering letter (referred to in the Engagement Letter as ‘you’ and ‘your’), who is therefore liable to pay the legal costs for this matter (unless the covering letter states otherwise).

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The terms of any covering letter issues to you will prevail over these Terms & Conditions if there are any inconsistencies. 

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In this Engagement Letter, the term:

• fees means the amount we charge for legal services;

• disbursements means all costs (other than our fees) that we incur on your behalf, or which are otherwise payable by you in connection with the provision of legal services under this Engagement Letter, whether to:

  • us, our associated entities or third parties for office services (such as document production or attending to searching, stamping, collection, inquiry services, court filing or lodgement of documents for registration); or

  • third parties (such as Land Victoria search and registration fees, the Personal Property Securities Register search and registration fees, the Australian Securities and Investments Commission searching and lodgement fees, filing and search fees, stamp duty, court filing fees, an expert’s fees or legal costs payable to a barrister or other lawyer engaged by us on your behalf); and

• legal costs means amounts that you have been or may be charged, or are or may become liable to pay to us, for the provision of legal services under this Engagement Letter.  The term legal costs incorporates our professional fees (referred to in this Engagement Letter as our fees) and disbursements.

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1        Acceptance of Engagement Letter

Each of the persons noted as our client in the covering letter may accept the Engagement Letter by signing and returning the enclosed copy of the Engagement Letter.  If we do not receive a signed copy but you continue to instruct us in this matter, then you will be taken to have accepted the terms of the Engagement Letter.  We would, however, prefer that you sign and return the signed copy of the Engagement Letter.

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2        Our work for you

To provide you with the legal services you require, we need you to give us clear and complete instructions.

Our work does not extend beyond the scope of the work we have agreed with you.  Unless the covering letter states otherwise or we subsequently agree in writing with you otherwise:

• our advice can be relied on only by you;

• our advice will not be kept under review or revised, after it has been provided to you, to allow for changes in the law;

• any documents that we prepare for you are to be used solely for the specific purposes or circumstances as disclosed by you in the course of the specific retainer to which this Engagement Letter relates and for no other purpose; and

• we will not keep under review or revise any documents that we prepare for you, after they have been prepared in final form, to allow for changes in the law.

If we have listed specific items as ‘Exclusions from scope of work’ in the covering letter, this reflects your express instructions that our scope of work does not include those specific items.  We confirm that we will not advise you in relation to those items and we will not consider, review or advise you on the content of any advice you receive from any person in respect of those items.

In providing our advice we rely on all instructions and information (both written and oral) provided by you.

Often, we need to make assumptions in order to provide our advice.  Please review carefully any assumptions, and let us know immediately if any assumptions are incorrect or inappropriate, or if you think we have misunderstood your instructions.

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3        Communications

We will send all communications to the address you nominate.  Therefore, it is essential you keep all contact and address details current.

We may communicate with you by email.  Electronically transmitted information may not appear in the same format in which it is sent, can be copied and edited, and may contain computer viruses.  To the extent permitted by law, we are not liable for any loss or damage if this occurs.

Please let us know if you do not want us to communicate electronically with you.

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4        Confidential information

We possess confidential information in relation to the affairs of other clients, which may include information relevant to you or your matter.  Our duty of disclosure to you in respect of that information is expressly limited so that we are under no obligation to disclose to you any confidential information which may at any time be held by us as a result of any other matter conducted by the firm, or by an employee or partner of the firm, whether while an employee or partner of the firm or otherwise.

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5        Conflicts of interest

In each matter where we act for you, we will act as your independent legal advisers solely in your interests, unless you agree that we can act for another party as well.

We conduct conflict checks before accepting your instructions.  However, it is possible that a conflict of interest may not be identified or can arise during the course of your matter.  If that happens, we will discuss this with you, and if it is not possible for us to continue to act for you, we will help you to find a suitable replacement lawyer.

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6        Our legal costs

Our legal costs will be charged on the basis set out in the covering letter.  Our total legal costs include an amount for GST at the prevailing rates unless our legal services are GST-free.  If the prevailing rate of GST changes, we will adjust our legal costs to reflect the change.

If the basis on which we will charge for fees is our hourly rates, our fees will be charged based on the hourly rates from time to time of each person working on your matter.  Each such person has an hourly rate that reflects his or her skills and experience.  Our hourly rates include secretarial and word processing services.  The hourly rates for the people likely to be involved in your matter are set out in the covering letter.  Time spent is recorded in six-minute units (with time rounded up to the nearest unit of six minutes).

If the basis on which we will charge for fees is or includes fixed fees for a fixed scope of work described in the covering letter, we will charge you the fixed fees for the fixed scope of work.  However, if the work we are required to undertake exceeds, or is not included in, the fixed scope of work described in the covering letter, we will charge you at our hourly rates from time to time unless a further fixed fee arrangement is reached.

An estimate of our likely fees (with or without disbursements) may be provided to you.  This estimate is based on our current understanding of the circumstances and scope of work required, and therefore is not binding on us.

If your matter proceeds beyond the scope of work described in the covering letter, additional legal costs will be incurred and we will continue to charge you at our hourly rates from time to time.  A further estimate can be given at that time.

In addition to any variables otherwise set out in the Engagement Letter, the major variables that will affect the amount of our legal costs include:

• the complexity of the matter;

• any unforeseen complications;

• the extent of any negotiations with the other party or parties;

• the degree of urgency required; and

• the care, skill and attention required generally for the matter.

In litigious matters, the variables that will affect the amount of our legal costs also include:

• if the matter settles or proceeds to trial;

• the nature of the claim and the complexity of the work involved;

• if counsel needs to be retained and the extent of their involvement;

• the number and complexity of applications in the proceeding;

• the time spent on preparing submissions and witness statements;

• the number of potential witnesses we need to interview;

• the amount of work involved in properly briefing counsel for trial; and

• the duration of the trial.

In addition to our fees, our legal costs also incorporate disbursements which we may incur for goods and services supplied by us or our associated entities or by third parties in the course of working on your matter.  Except as otherwise specified in the covering letter, we will charge you for any such disbursements at cost.

The types of goods and services that the disbursements may include are set out in the definition of the term ‘disbursements’ contained in this schedule.

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7        Your rights

You have the right to:

• negotiate a costs agreement with us (the Engagement Letter, of which these terms form part, is a costs agreement);

• receive bills of costs from us;

• request an itemised bill within 30 days after receipt of a lump sum bill; and

• be notified of any substantial changes affecting your matter, as soon as practicable after we become aware of the change.

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8        Payment of our accounts

Unless otherwise set out in the engagement letter, all accounts are payable 7 days after they have been sent unless otherwise agreed in writing.  Our office account details for the payment of our accounts are as follows (these details are also set out in our accounts):

 

My Legal Advisor Pty Ltd

BSB:         013 304

ACC:         475 563 376

 

Each account will be a tax invoice for GST purposes where an amount for GST forms part of our legal costs and will briefly describe the work we have undertaken on your behalf.  If you would like an itemised account, you will need to request this within 14 days after you receive the account.  An itemised account describes in more detail how our fees are calculated.

We may ask you to pay an amount in advance to cover expenses or on account of legal costs. If this is required, we will provide you with our trust account details for this purpose.

 

Where we act for more than one client in a matter, all clients are jointly and severally liable for legal costs.

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9        Unpaid accounts

If our account remains unpaid, or you do not pay money in advance that we have requested, we may stop work until we are paid, and we may exercise our common law right to retain your documents until our account is paid.

If the account continues to remain unpaid, we may cease to act for you.

In any case, if an account is not paid after 7 days of being sent we may charge you interest at a rate not exceeding the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 2%, at the date the bill is issued.

More information about what happens if we cease to act for you is set out in section 19 of these terms (Ending our engagement).

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10      Trust money

If we receive money into our trust account on your behalf (in respect of any file/matter), you authorise us to withdraw that money, as well as any other trust money we hold for you on account of our legal costs, for the purpose of paying our legal costs as they arise (in respect of any file/matter).

You may revoke your authority by giving us seven (7) days’ notice in writing.  However, in this case, we may still withdraw money held on your behalf for our legal costs that were accrued up to the expiry of the notice period.

If we receive money to be paid to a third party, we will forward that money to the third party unless you instruct us to do otherwise.

If you require us to send any money that we are holding in our trust account on your behalf to an overseas account, we will:

• convert that money into the currency of the jurisdiction in which the overseas account is held, before sending the money, unless you instruct us in writing to do otherwise; and

• deduct any costs that we are charged, in connection with the transfer of money to an overseas account, from the money being transferred.

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11      Recovery of costs from another party

• Litigious matters

In litigious matters, the court may decide who will pay the successful party’s costs.

If your matter is successful, the court may order the other party to pay some of your legal costs.  These costs are known as ‘party/party costs’ and are calculated by applying the relevant court scale.  Such an order will not necessarily cover the whole of your legal costs.

If the court orders the other party to pay some of your legal costs, we estimate that you will recover an amount equivalent to approximately 50% to 70% of your total legal costs from the other party.

However, you are still responsible to pay all of our legal costs.  If you cannot recover the costs from the other party (for example, if a party goes into liquidation or is bankrupted), you will still be responsible to pay all of our legal costs.

• Litigious and non-litigious matters

In both litigious and non-litigious matters, you may have a contractual right to recover legal costs from another party.  Even if you are unable to recover these legal costs, you will still be responsible to pay all of our legal costs.

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12      Your liability for the costs of another party

In litigious matters, if your case is unsuccessful, the court may order you to pay some of the other party’s legal costs.  These costs will be calculated by applying the relevant court scale.  We estimate that this amount could equate to between about 50% and 70% of your total legal costs.

You will also be responsible to pay all of our legal costs.

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13      Progress reports

You have a right to request written reports about the progress of your matter and the legal costs incurred in your matter at any time.  Otherwise, we will give you a progress report at suitable intervals.

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14      Engagement of another lawyer

We may need to engage a barrister or other lawyer on your behalf to provide specialist advice or services.  We will consult you about the terms of this engagement, and provide you with a statement setting out the details of their legal costs before incurring the expense.

When we instruct a barrister or other lawyer on your behalf, we will usually do so as your agent.  Since you will be directly responsible for payment of their legal costs, we may ask you to provide us with sufficient funds in advance to pay these legal costs.  We are not responsible for estimates provided by a barrister or other lawyer.

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15      Your files and records

You agree that we can keep your files in electronic form.

If you do not tell us otherwise in writing, we may destroy your files after seven years from the completion of the matter, without any further notice to you.  However, this does not apply to any documents held for safe keeping, such as wills, powers of attorney, certificates of title or share certificates.

If you believe that any document held by us in your files is, or is reasonably likely to be, required in evidence in a legal proceeding, you will inform us of this fact urgently and request in writing that we do not destroy such document until it is no longer required, otherwise you may be committing an offence under the Crimes Act 1958 (Vic).

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16      Intellectual property

We own the copyright and all other intellectual property rights in everything we create in connection with your matter.  Unless we agree otherwise, what we create may be used by you only for the matter for which we created it.

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17      Confidentiality

The law imposes a duty of confidentiality on us.  We exercise special diligence in observing that duty.

By entering into this agreement, you authorise us to publicise that we have acted for you in this and other matters.

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18      Your privacy

We understand the importance of protecting the privacy of your personal information.  In handling personal information, we comply with the Privacy Act 1988 (Cth) (Privacy Act).

We collect, use, disclose and store your personal information in accordance with our privacy statement, a copy of which is available to you upon request.

Generally, we collect and use your personal information for the purposes of providing you with legal services.  A failure to provide your personal information may affect our ability to assist you.  Generally, the kinds of personal information we collect include your name, address, telephone number and email address.

To provide our legal services, we may disclose your information to third parties engaged to perform administrative or other services.  Any disclosure is always on a confidential basis.  We may also disclose your personal information if required or authorised by law.

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19      Ending our engagement

You may end our retainer and the Engagement Letter by written notice to us at any time.

We may end our retainer and the Engagement Letter if circumstances arise (such as a conflict of interest) that make it impossible or inappropriate for us to continue to act for you.  If this happens, we will notify you immediately.

If our retainer ends for any reason, you will be required to pay our legal costs up until that time.  If we have agreed a fixed fee, you agree to pay us what we reasonably consider reflects the work we have undertaken for you.

If we cease to act for you:

• we will not incur any liability as a result;

• we will remove our name from the court record in any court proceedings;

• you will receive a final account, which will include all outstanding legal costs;

• you will be required to pay our legal costs up until the date we ceased to act for you; and

• we may retain your documents until we are paid.

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20      Concerns about our legal costs or services

If you have any concerns about our legal costs or services, please speak to the partner responsible for the matter, who is identified in our letter to you.  If we cannot satisfactorily resolve your concerns, you may:

• seek a costs review by the Taxing Master (under Division 7 of Part 3.4 of the Act) within 12 months after the bill is given to you, or we request payment of costs, or you pay the costs.

• You may seek a costs review outside the 12 month time limit.  In these circumstances, the Taxing Master will not deal with the review if we can establish that to do so would, in all the circumstances, unfairly prejudice us;

• apply to VCAT to set aside our Engagement Letter;

• make a complaint to the Legal Services Commissioner within 60 days after the legal costs were payable, or, if an itemised bill was requested in respect of those costs, within 30 days after the request was complied with; or

• make a complaint to the Legal Services Commissioner up to four months after the end of the time limit referred to above.  However, you will be required to demonstrate to the Commissioner’s satisfaction that there was a reasonable cause for the delay in making the complaint, and that legal proceedings have not been commenced for the recovery or review of the legal costs that are the subject of the complaint.

For more information about your rights, please read the fact sheet entitled Legal costs - your right to know.  You can ask us for a copy, or obtain it from the Legal Services Commissioner (or download it from their website).

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21      Communications with other advisers, etc

From time to time your matter may require us to communicate with your other advisers, such as your accountant or financial adviser.  You agree that we may do so and may communicate to them, as appropriate, confidential and privileged material as well as accounts.

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22      Privilege

All confidential communications (whether written or verbal) that we provide to you for the purpose of providing legal advice are protected by client legal privilege.  This means that you cannot be compelled to disclose the contents of that advice or your instructions in any court proceedings relating to the matter.

In order to preserve your privilege in any communications, you must preserve the confidentiality of all written and verbal communications relating to the matter.  This means that you should check with us before:

• disclosing any information or documents (including written advices) between us relating to the matter to third parties; or

• referring to the details of the matter, including the contents of written advices that we have provided to you, in a non-confidential setting (such as by copying the contents of our advice into, or referring to the gist of that advice in, any form of communication with a third party).

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23      Credit references - Notice of disclosure of your credit information to a credit reporting agency

We may give information about you to a credit reporting agency for the purpose of obtaining a consumer credit report about you.

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24      Relevant law

The Engagement Letter is governed by the laws of Victoria.  If your matter relates to another state, territory or country a law corresponding to the Act may apply.  In that event you have the right to sign an engagement agreement under a corresponding law or to advise us that you require the corresponding law of another jurisdiction to apply.