Master Costs Agreement

1        Purpose

This Master Costs Agreement sets out the terms on which Finance Law agrees to provide legal services to you from time to time.

It is intended to govern all matters on which you instruct us unless we agree otherwise in writing.

For each new matter, we will send you a Matter Confirmation identifying:

• the matter;

• the borrower (if applicable);

• the security property (where relevant);

• the agreed professional fee;

• any additional fixed fees that apply under Schedule 1; and

• the estimated disbursements.

Together, this Master Costs Agreement, the applicable Matter Confirmation, Schedule 1 – Additional Fees, Schedule 2 – Hourly Rates and any Conditional Costs Agreement applicable to the matter constitute the agreement between us.

2         Definitions

3          Scope of Engagement

We are engaged to provide legal services in connection with lending, finance, security, enforcement, recovery, insolvency and other commercial matters on which you instruct us.

Depending on the matter, our services may include:

• advising on legal issues;

• preparing and negotiating legal documents;

• preparing finance and security documentation;

• undertaking legal due diligence;

• advising on settlement requirements;

• satisfying conditions precedent;

• arranging execution of documents;

• attending settlement;

• registering securities;

• conducting enforcement action;

• recovery proceedings;

• insolvency advice;

• litigation;

• negotiating settlements;

• and any other legal services we agree to provide.

Each Matter Confirmation will identify the scope of the particular engagement.

4         Our Role

We act as your legal advisers.

Our role is to provide legal advice and legal services.

We do not provide:

• financial advice;

• taxation advice;

• accounting advice;

• valuation advice;

• investment advice; or

• credit advice,

unless expressly agreed in writing.

You remain responsible for your own commercial decisions.

5         Scope of Each Matter

Unless otherwise agreed in writing, our engagement is limited to the scope described in the relevant Matter Confirmation.

The following are not included unless specifically agreed:

• enforcement proceedings;

• litigation;

• insolvency appointments;

• variations after settlement;

• refinances;

• restructures;

• recovery action;

• disputes;

• appeals;

• regulatory advice;

• taxation advice;

• corporate advice; and

• any other work outside the agreed scope.

If additional work becomes necessary we may:

• agree an additional fixed fee;

• charge under Schedule 1;

• or enter into a separate costs agreement.

6         Professional fees

6.1       Pricing Models

The professional fees applicable to each matter will be specified in the relevant Matter Confirmation.

Depending on the nature of the matter, our professional fees may be charged using one or more of the following pricing models:

a           a fixed fee;

b          deferred professional fees;

c           hourly rates (pay as you go);

d          a capped fee;

e           a conditional costs agreement or success fee arrangement, where permitted by law;

f            a hybrid fee arrangement comprising any combination of the above; or

g           any other pricing arrangement agreed in writing.

6.2       Matter Confirmation

The Matter Confirmation will identify, where applicable:

a           the pricing model applying to the matter;

b          the agreed professional fee or the basis upon which the fee will be calculated;

c           any applicable additional fees under Schedule 1;

d          estimated disbursements;

e           the billing arrangements;

f            any deferred payment arrangements;

g           any conditional costs agreement or success fee arrangement;

h          any special commercial terms applicable to the matter.

6.3      Fixed Fees

Where a fixed fee is agreed that fee includes all professional work reasonably required to complete the agreed scope of work described in the Matter Confirmation.

Unless expressly stated otherwise, a fixed fee does not include:

a           disbursements;

b          Schedule 1 – Additional Fixed Fees;

c           work outside the agreed scope;

d          enforcement, litigation or insolvency work;

e           post-completion variations or restructures; or

f            any other work requiring separate instructions.

6.4       Deferred Professional Fees

Where deferred professional fees are agreed, payment of our professional fees is deferred until the occurrence of a Recovery Event specified in the Matter Confirmation.

Unless otherwise agreed, deferred professional fees become immediately due and payable upon the first Recovery Event.

6.5      Hourly Rates

Where professional fees are charged on a time-costed basis, work will be charged at the hourly rates published by Finance Law and current at the time the work is performed, unless otherwise agreed in writing.

Time is recorded in six-minute units or such other minimum unit as permitted by law.

6.6     Conditional Costs Agreements and Success Fees

Where the Matter Confirmation specifies that the matter is conducted under a Conditional Costs Agreement or a success fee arrangement, the applicable Conditional Costs Agreement forms part of this Agreement.

That Schedule sets out the applicable success event, the method of calculating the success fee, and any disclosures required by law.

6.7      Hybrid Pricing

A Matter Confirmation may provide for a combination of pricing models, including fixed fees, deferred fees, hourly rates, capped fees or conditional costs arrangements.

6.8      Schedule 1 – Additional Fees

Schedule 1 forms part of this Master Costs Agreement.

Where additional work identified in Schedule 1 is undertaken, the applicable fixed fee will be payable in addition to the professional fee specified in the Matter Confirmation unless otherwise expressly stated.

6.9       GST

Unless otherwise stated, all professional fees, hourly rates and Schedule 1 additional fees are exclusive of GST. GST will be added where required by law.

7          Estimates

Any estimate we provide is an estimate only.

It is not a quotation and is not binding unless expressly stated to be a fixed fee.

If there is any inconsistency between an estimate and a Matter Confirmation, the Matter Confirmation prevails.

8          Disbursements

Professional fees do not include disbursements.

Disbursements include amounts paid to third parties on your behalf including:

• title searches;

• ASIC searches;

• PPSR registrations;

• government registration fees;

• PEXA fees;

• VOI costs;

• courier charges;

• process servers;

• settlement agents;

• barristers;

• expert witnesses;

• filing fees;

• travel expenses; and

• any other third-party expense reasonably incurred in carrying out your instructions.

Where practical, we will provide an estimate of anticipated disbursements.

Actual disbursements may differ from the estimate.

9         Billing

We may issue invoices:

• upon receiving instructions;

• during the course of the matter;

• upon completion of a stage of work;

• upon the occurrence of a Recovery Event;

• at settlement;

• upon completion of the matter;

• if the matter is suspended;

• if the matter is terminated; or

• whenever we reasonably consider it appropriate.

Unless otherwise agreed, invoices are payable within 7 days.

Appointment Terms

10          Our Relationship

10.1        We act as your legal advisers in relation to each matter described in a Matter Confirmation.

10.2      We will:

a           act honestly, competently and in accordance with our professional obligations;

b          exercise our independent professional judgment in conducting each matter;

c           keep you informed of material developments; and

d          use reasonable skill and care in providing our legal services.

10.3      We do not guarantee:

a           the outcome of any matter;

b          recovery of any debt or security;

c           the enforceability of any security;

d          the commercial success of any transaction; or

e           the solvency or conduct of any person.

11          Instructions

11.1        We are entitled to rely upon instructions received from:

a           any person you nominate;

b          any director, secretary, employee or authorised representative of a corporate client;

c           any broker, manager, fund manager, investment manager or intermediary authorised by you;

d          any person who reasonably appears to have authority to provide instructions.

11.2       Unless we have actual knowledge to the contrary, we are not required to investigate whether a person giving instructions has authority.

11.3       We may rely upon instructions received by email or other electronic communication that reasonably appears to originate from an authorised person.

11.4       Where we act for more than one client on a matter, each client:

a           appoints each other client as its agent for giving instructions relating to the conduct of that matter; and

b          is jointly and severally liable for our fees unless otherwise agreed.

12          Conduct of the Matter

12.1        You appoint us to manage the legal conduct of each matter.

12.2       Subject to your instructions and our professional obligations, we may determine:

a           the sequence in which work is undertaken;

b          the legal strategy adopted;

c           the timing of attendances;

d          communications with third parties;

e           drafting decisions;

f            settlement procedures;

g           registration processes; and

h          any administrative or procedural steps reasonably required to progress the matter.

12.3       We may take routine or administrative steps without obtaining further approval where those steps are reasonably necessary to progress the matter.

12.4       We will seek your instructions before making decisions that materially affect your legal rights or commercial position.

13            Client Responsibilities

13.1       You agree to:

a           provide accurate and complete information;

b          promptly provide all documents reasonably requested;

c           promptly respond to requests for instructions;

d          ensure sufficient funds are available to meet professional fees and disbursements;

e           promptly notify us of any material change affecting the matter.

13.2      We are entitled to rely upon information provided by you without independently verifying its accuracy unless we are aware that it may be incorrect.

13.3      We are not responsible for any loss arising from:

a           inaccurate or incomplete instructions;

b          misleading information;

c           delays in receiving instructions;

d          your failure to disclose relevant information.

14         Active Management of Matters

14.1       We conduct matters on the basis they will be actively progressed.

14.2       If instructions, documents or funding are not provided within a reasonable time we may:

a           suspend work;

b          postpone settlement;

c           decline to undertake further work;

d          close the file; or

e           terminate our engagement in accordance with this Agreement.

14.3      We are not responsible for any delay, additional costs or prejudice resulting from your failure to provide timely instructions or funding.

15           Funding

15.1        You must pay all invoices in accordance with this Agreement.

15.2      We may require payment:

a           before commencing work;

b          before incurring disbursements;

c           before settlement;

d          before undertaking urgent work;

e           at any other time we reasonably consider appropriate.

15.3      We are not obliged to incur disbursements or continue acting unless satisfactory funding arrangements are in place.

16         Suspension of Work

16.1      We may suspend work immediately if:

a           any invoice remains unpaid after its due date;

b          requested trust monies are not provided;

c           required instructions are not received;

d          you breach this Agreement;

e           continuing to act would expose us to unacceptable legal, professional or reputational risk.

16.2       During any suspension we may cease all work.

16.3       We accept no responsibility for any delay, loss of priority, expiry of limitation periods or other consequences arising from a suspension permitted under this Agreement.

17         Termination

By You

17.1       You may terminate our engagement at any time by written notice.

17.2     You remain liable for:

a           all professional fees incurred;

b          all disbursements incurred;

c           all work completed prior to termination.

By Us

17.3      Subject to our professional obligations, we may cease acting immediately where:

a           invoices remain unpaid;

b          adequate funding is not maintained;

c           you fail to provide instructions;

d          a conflict of interest arises;

e           you require us to act contrary to law or our professional obligations;

f            continuing would expose us to unacceptable legal, commercial or reputational risk;

g           the relationship of trust and confidence has broken down.

17.4      Upon termination:

a           all outstanding amounts immediately become due;

b          we may cease all work;

c           our lien and security rights continue.

General Terms

18        Lien

18.1      Until all amounts owing to us have been paid in full, we have a lien over:

a           all documents;

b          all files;

c           all trust money;

d          all settlement proceeds;

e           all property held by us on your behalf; and

f            any other property over which a solicitor's lien may arise at law.

18.2      Our lien:

a           applies to all amounts owing to us, whether arising under this or any other matter;

b          survives completion or termination of our engagement; and

c           may be exercised to the fullest extent permitted by law.

18.3      Nothing in this Agreement limits any lien, equitable right or other remedy available to us.

19           Security Interest

19.1         As continuing security for payment of all amounts owing to us, you grant us a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) over:

a           all rights to payment arising from any matter on which we act;

b          all present and future debts owing to you relating to that matter;

c           all mortgages, charges, guarantees, indemnities and other security supporting those rights;

d          all proceeds of those rights, including repayments, settlements, enforcement recoveries and sale proceeds.

19.2      You consent to us:

a           registering that security interest;

b          maintaining that registration;

c           amending that registration; and

d          enforcing that security if an amount owing to us remains unpaid.

19.3     You must do anything reasonably requested by us to perfect or maintain that security interest.

19.4     Our security interest is in addition to, and does not replace:

a           our solicitor's lien;

b          any right of set-off;

c           our contractual rights; or

d          any other remedy available at law.

20        Trust Money

20.1      Where permitted by law, you irrevocably authorise us to deduct from any trust money or settlement funds held on your behalf:

a           professional fees;

b          disbursements;

c           any interest payable under this Agreement;

d          recovery costs; and

e           any other amount owing to us.

20.2    We may make those deductions without further notice once the relevant amount becomes payable.

21         Confidentiality

21.1       We will maintain the confidentiality of your information in accordance with our professional obligations.

21.2     We may disclose confidential information where reasonably necessary:

a           to carry out your instructions;

b          to engage barristers, experts or consultants;

c           to settlement agents, PEXA participants and service providers;

d          to regulators, courts or government authorities;

e           where required by law;

f            where authorised by you.

21.3      We may use external service providers to assist in delivering our legal services provided appropriate confidentiality obligations apply.

22         Conflicts

22.1       We act for lenders, financiers, investors and commercial clients across Australia.

22.2      Unless prohibited by law or our professional obligations, you acknowledge that we may act for other clients whose commercial interests differ from yours provided the matters are unrelated.

22.3      We may cease acting if a conflict arises which prevents us from continuing.

23          Electronic Communications

23.1        You authorise us to communicate electronically.

23.2      Electronic communications include:

a           email;

b          secure client portals;

c           electronic signing platforms;

d          SMS;

e           encrypted messaging systems used in the ordinary course of business.

23.3     You acknowledge electronic communications carry risks including:

a           delay;

b          interception;

c           corruption;

d          malware; and

e           unauthorised access.

23.4     To the extent permitted by law, we are not responsible for losses arising solely from those inherent risks.

24         Technology and Artificial Intelligence

24.1       We may use technology, automation systems and artificial intelligence to assist in providing our legal services.

24.2     Technology may be used for:

a           document preparation;

b          document review;

c           legal research;

d          workflow management;

e           precedent management;

f            knowledge management;

g           quality assurance;

h          administrative support.

24.3     Any technology used by us supports—but does not replace—the professional judgment of our legal practitioners.

24.4     All legal advice remains subject to appropriate review by an Australian legal practitioner before it is provided to you.

24.5      We will take reasonable steps to ensure any technology we use is consistent with our professional obligations concerning confidentiality, legal professional privilege and protection of client information.

24.6      We may use technology in accordance with this clause.

25          Ownership of Documents and Intellectual Property

25.1        All legal documents, precedents, drafting methodologies, workflows and know-how developed by us remain our intellectual property.

25.2      You receive a licence to use documents prepared for you solely for the matter for which they were created.

25.3     You must not:

a           reproduce our precedents for future transactions;

b          permit another law firm to adapt our documents;

c           commercially exploit our documents;

d          without our prior written consent.

25.4     Nothing prevents you retaining copies of documents for your own records or regulatory compliance.

26         Document Retention

26.1       We may retain files electronically.

26.2     Unless required by law, we may destroy files seven years after completion of the matter or such longer period as we determine.

26.3      Retrieval of archived files may incur a reasonable administrative charge.

27          Non-Solicitation

27.1        During our engagement and for twelve months afterwards you must not, without our written consent, directly or indirectly:

a           employ;

b          engage;

c           solicit; or

d          encourage to leave,

any employee or contractor who has had material involvement in your matters.

This clause does not prevent recruitment through a genuinely open public advertisement that is not specifically directed at our personnel.

28        Limitation of Liability

28.1      Our liability is limited to the maximum extent permitted by law, including any limitation available under the Professional Standards Legislation.

28.2     Nothing in this Agreement excludes any liability which cannot lawfully be excluded.

29        Variation

29.1       We may amend this Master Costs Agreement from time to time. Any amendment only applies to matters accepted after the amended Master Costs Agreement is provided to you or otherwise made available to you.

29.2      Any amended version will apply only to Matters accepted after we notify you of the amendment unless otherwise agreed.

30         Entire Agreement

This Master Costs Agreement, the applicable Matter Confirmation, Schedule 1 – Additional Fees, Schedule 2 – Hourly Rates and any Conditional Costs Agreement applicable to the matter constitute the entire agreement between the parties in relation to that matter.

31          Order of Precedence

If there is any inconsistency between the documents forming the agreement for a matter:

the Matter Confirmation prevails in relation to the matter details, scope of work, pricing model, professional fees, Recovery Event, application of recovery proceeds and any special commercial terms;

a           any Conditional Costs Agreement prevails in relation to the conditional costs arrangement and any uplift or success fee;

b          Schedule 1 prevails in relation to additional fees;

c           Schedule 2 prevails in relation to hourly rates; and

d          this Master Costs Agreement prevails in all other respects.

That clause will tie the whole document suite together and mirrors what you've already put into the Matter Confirmations.

32        Governing Law

This Agreement is governed by the laws of New South Wales.

The parties submit to the exclusive jurisdiction of the courts of New South Wales.