quinn emanuel trial lawyers | sydney

Level 15, 111 Elizabeth Street, Sydney NSW 2000, Australia | TEL +61 2 9146 3500 FAX +61 2 9146 3600


Privileged & Confidential


Dear Client,


Engagement Letter - Recall of affected motor vehicle fitted with a Takata manufactured airbag in Australia


We are pleased to confirm your engagement of Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel) to represent you in relation to representative proceedings arising out of the recall of affected vehicles fitted with a Takata manufactured airbag (the “Engagement”).


1.0 Summary


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We understand that you have entered, or will enter, into a separate agreement (the “Litigation Funding Agreement”) with Regency Funding Pty Limited (the “Funder”) with respect to the funding of the representative proceedings and Engagement (class actions) (the “Litigation”).


Please refer to the website https://www.productsafety.gov.au/news/takata-airbag-recalls-affecting- australian-consumers to confirm whether your car is one of the vehicles affected.


Our immediate tasks will be to:


  1. investigate and advise you in respect of your rights and interests in connection with the Litigation (the “Claims”);

  2. draft and prepare the relevant pleadings and legal documents to pursue the Claims and to commence the Litigation;

  3. conduct the Litigation;

  4. protect your rights and act in your best interests in relation to the Claims and the resolution of the Litigation; and

  5. assist with any settlement negotiations concerning the Claims and the Litigation (including any alternative dispute resolution process).


We estimate that our fees and disbursements (the “Legal Costs”) for these tasks in acting for you and for all other people with like Claims against the Respondents who enter into a Litigation Funding Agreement and by whom we are engaged (together the “Claimants”) will not exceed $5,500,000.00 (plus GST). This figure includes our professional fees, barrister fees, ancillary charges and disbursements.


The above figure is an estimate, and should be viewed as guidance only. It is based on our present understanding of the present circumstances.

If the scope of the work required by the Litigation and the Claims changes, or if there is a significant change to anything previously disclosed to you, we will update you accordingly. We confirm that the major variables that will affect the calculation of these Legal Costs include, amongst other things:


  1. how far the matter must go before it is concluded;

  2. the amount of evidence required to be gathered;

  3. the tactics adopted by the Respondents;

  4. the number of witnesses required to provide reports, information and evidence;

  5. the length of the trial in the Litigation, if this matter is not concluded earlier; and

  6. unexpected problems, the co-operation of other persons and administrative and other delays beyond our control.


We may perform work pursuant to this Retainer through agents or employees. This work will be carried out by legal practitioners as may be nominated by us from time to time.


The lawyers and support staff we initially propose to principally use on this matter, as well as their contact details and our charge out rates (excluding GST), are listed below:



Lawyer


Position


Contact Details


Charge Out Rate (A$)

Damian Scattini

Partner

(02) 9146 3888

damianscattini@quinnemanuel.com

$840.00 p/h

Meagan Bertolatti

Associate

(02) 9146 3548

meaganbertolatti@quinnemanuel.com

$490.00 p/h

Sean Cullen

Paralegal

(02) 9146 3609

seancullen@quinnemanuel.com

$290.00 p/h


Without any duplication or additional cost, Damian Scattini and Meagan Bertolatti will both keep abreast of this matter and you should feel free to contact either of us at any time about the work provided for under this retainer (the “Retainer”) or the progress of your matter. We will provide you with updates about the work provided for under this Retainer or the progress of your matter on the same terms as are detailed in this Retainer and the Litigation Funding Agreement.


2.0 Details of the Engagement


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The purpose of this letter is to set out and confirm the scope of legal services and the terms of our Engagement in relation to the Litigation. These terms will constitute a costs agreement for the purposes of the Legal Profession Uniform Law (NSW) and all associated regulations and rules (the “Uniform Law”).


Scope of Engagement & Relationship between this Retainer & the Litigation Funding Agreement


As mentioned above, we are to represent you in relation to the Engagement and your Claims in respect of the Litigation.


This Retainer must be read in conjunction with the Litigation Funding Agreement at all times. In particular, clause 11.5 sets out our duty to you in the event of a perceived or potential conflict with the interests of the funder. We encourage you to read that clause carefully.

Pursuant to the Litigation Funding Agreement, the Funder agrees to pay our Legal Costs for which you are liable under this Retainer, on the terms outlined in the Litigation Funding Agreement. We are authorised by this Retainer to make day-to-day decisions in relation to the conduct of the Litigation.


You acknowledge and accept that we may have been, or will be, retained by other Claimants to pursue Claims on their behalf in the Litigation. In conducting the Litigation pursuant to the terms of this Engagement, we will do work for the common benefit of all Claimants who retain us in relation to their Claims (the "Common Work"), as well as work in connection with your specific Claim (the “Individual Work”). You will be charged for both the Common Work and the Individual Work.


You acknowledge that, prior to you signing this Retainer, we may have already undertaken work in relation to the Claims, and that this work was to your benefit and the common benefit of all Claimants, We confirm that the cost of performing this work is included in the estimate of Legal Costs contained in this Retainer. Under this Retainer, you authorise us to charge for and recover any amount of Legal Costs incurred, or which may be incurred, in respect of work performed prior to, or after, you entering into this Retainer.


We and the Funder have agreed to conduct the Litigation in accordance with the Litigation Funding Agreement.


We note that this Retainer must be read in conjunction with the Litigation Funding Agreement.


Legal Advice & Negotiation about this Retainer


This Retainer is a legally binding agreement. You should not sign it unless you have understood everything in it. We also advise of your right to seek independent legal advice in relation to this Retainer and the Litigation Funding Agreement, prior to signing, and otherwise agreeing to the terms of this Retainer.


Legal Costs & Payment


Our fees are based on the amount of time we spend on this matter. We will also pass on any disbursements that we incur on this matter. Together, these fees and disbursements are our Legal Costs for this matter.


Our Legal Costs will be paid by the Funder, in accordance with the Litigation Funding Agreement. By signing this Retainer, you expressly authorise us and the Funder to deal with the payment of Legal Costs incurred by us in the course of the Litigation in accordance with the provisions of the Litigation Funding Agreement.


This includes circumstances where an amount of any costs order in your favour, even if recovered, is considerably less than the total amount of the Legal Costs payable under the terms of this Retainer and, in those circumstances, you authorise us to recover the amount of the difference from any judgment for damages or settlement.


As you will appreciate, forecasting Legal Costs in litigation is inherently difficult due to the large number of factors beyond our control that can impact on costs. We will provide updated fee estimates in relation to the Engagement as the matter progresses. As noted above, a detailed explanation of our Legal Costs, and your rights in relation to those Legal Costs, are set out in Annexure A. Should there be any substantial changes to anything contained in our Terms of Engagement, you will be informed as soon as is reasonably practicable.

Your liability for Legal Costs will be funded by the Funder, or carried by us on a No Win-No Fee basis, and recovered by us and/or the Funder (as applicable) out of any judgment for damages or settlement received in the event of a successful outcome. We reiterate, as set out in the Litigation Funding Agreement, that regardless of the outcome of the Litigation or your Claim, as long as you comply with your obligations under this Retainer and the Litigation Funding Agreement you will not be liable for any Legal Costs out of your own pocket.


Where it is necessary by way of court order, application or otherwise for there to be an assessment, taxation or costing in respect of any costs order (adverse or in your favour) in relation to the Litigation and/or your Claims, the fees and disbursements for that assessment, taxation or costing will be charged as a disbursement to be paid by the Funder. This does not apply if the relevant cost order arises from any dispute between you and either us or the Funder.


Our Point of Contact


Pursuant to the terms of the Litigation Funding Agreement, we will also communicate directly with the Funder in relation to this matter. We will, of course, also provide you with regular updates in respect of the Litigation.


Responsibilities of each Claimant


In order to represent you effectively, it is important that you provide us with complete and accurate information regarding the subject matter of this Retainer, and that you keep us informed on a timely basis of all relevant developments. In addition, it is essential that you provide us with timely assistance and cooperation in connection with the work provided for by this Retainer.


It is important that all documents that are potentially relevant to the Litigation (both electronic and hard copy) are retained and, in particular, are not deleted or otherwise disposed of. A duty to preserve potentially relevant information is triggered when Litigation is reasonably anticipated or commenced. We will of course discuss your obligations with you further, but it you have any questions in this regard now, please let us know.


Settlement


If Litigation has been commenced in the court, settlement of your Claim cannot be concluded until court approval has been obtained. In that context, the court will assess whether the proposed settlement is fair and reasonable to the Claimants in all of the circumstances.


You agree that, in the absence of manifest error, our calculation of the value of the Claimants’ Claims for these purposes will be final and binding on each Claimant (including you).


Receipt & Application of Proceeds of the Claim


If the Litigation is successful, either through a judgment for damages or a settlement, moneys may be received from the Respondents, or any other party to the Litigation against whom any adverse costs order is made in your favour. Those moneys will be the proceeds of the Claim (the “Proceeds of the Claim”).


Any dispute regarding the application of any Proceeds of the Claim between you, us and/or the Funder, other than an objection to a proposed settlement filed with the Court, shall be resolved by the mechanisms set out in the Litigation Funding Agreement or a court approved settlement distribution scheme.

Termination


If you breach any of your obligations under this Retainer or if we become satisfied that:


  1. you have lost confidence in us;

  2. we believe, on reasonable grounds, that we have a conflict of interest;

  3. we believe that the Litigation and/or your Claims do not enjoy reasonable prospects of success;

  4. the Funder is, or is about to become, insolvent;

  5. the Funder is no longer funding the Litigation or the Claims; or

  6. we are notified by the Funder that it has given notice of termination to you under the Litigation Funding Agreement.


We are entitled to terminate this Retainer, having provided you first with reasonable written notice of our intention to do so and our reasons for so doing. In the event of such termination, we will remain entitled to be paid for any work carried out on your behalf up to that date.


Acknowledgement of Terms


This Retainer is an offer to enter into a costs agreement, which you can accept in writing or by continuing to instruct us. We have enclosed an executed copy of this letter. If the Retainer accurately reflects our agreement with you, please confirm that by signing and returning a copy to us. Should you continue to instruct us after receiving this Retainer, that conduct will constitute acceptance of all terms set out in this Engagement letter.


We are not bound by this Retainer until both the following have occurred:


  1. you return a signed Retainer to us or continue to instruct us after receiving this Retainer; and

  2. you sign a Litigation Funding Agreement with the Funder.


Please call us to discuss any questions you may have regarding this Retainer. We also encourage you to consult with an independent lawyer about any of the provisions in this Engagement letter.


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We very much look forward to working with you on this Engagement. Yours sincerely,


Damian Scattini, Partner

+61 2 9146 3500

Damianscattini@quinnemanuel.com

STATEMENT TO BE SIGNED BY CLIENT:


I have read this letter and I understand and agree to its contents. Name:

Vehicle Make/Model:


Date:


Signature:

quinn emanuel trial lawyers | sydney

Level 15, 111 Elizabeth Street, Sydney NSW 2000, Australia | TEL +61 2 9146 3500 FAX +61 2 9146 3600



ANNEXURE A TERMS OF ENGAGEMENT


PART A – Costs and Billing


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1.0 Billing Arrangements


    1. The legal costs, legal fees, costs orders and disbursements for and relating to work done pursuant to this Retainer, are, subject to the terms of this Retainer and the Litigation Funding Agreement, to be paid by the Funder. Given this, to the extent that they are applicable in these circumstances, your and our rights and obligations in respect of the Retainer, include, in addition to those outlined in the Engagement letter to which these terms are annexed, these terms.


    2. Our usual policy is to issue a tax invoice on a monthly basis but we may issue tax invoices on a more frequent basis depending on the nature of the work. All tax invoices are due and payable 30 days from the date of the tax invoice. You consent to us sending our tax invoices to you electronically at your usual email address or mobile phone number or specified by you.


    3. You may accept this Retainer by:


      1. signing and returning this document to us; or

      2. continuing to instruct us.


Upon acceptance, you agree to pay for our services on these terms.


2.0 Ancillary Charges


    1. We will charge separately for certain ancillary services we provide, such as photocopying, scanning, paralegal overtime and word processing.


    2. We pass along out-of-pocket costs and charges that we incur on our clients' behalf. These typically include courier charges, deposition videography, transcript charges and administrative charges.


    3. Other charges for substantial document reproduction and document imaging will be billed to you based on market prices. We will obtain and provide quotes for these charges.


3.0 Disbursements


    1. Additionally, we charge for computerised legal research at market rates (Westlaw or Lexis fees), travel costs, meal charges and parking charges, filing fees, telephone toll charges, fees for experts and other consultants retained on your behalf, and similar charges.


    2. In some cases, particularly if the amount is large, we may forward an invoice from an outside vendor or service directly to you for payment, which will also be due and payable upon receipt. Failure to pay such invoice upon request will be grounds for us to withdraw from our representation.


4.0 Recording Time


4.1. Our charges are structured in six minute units. For example, the time charges for an attendance of up to six minutes will be one unit and the time charged for an attendance between six and 12 minutes will be two units.


5.0 Goods & Services Tax (GST)


5.1. Where applicable, GST is payable on our professional fees and expenses and will clearly be shown on our tax invoices. By accepting the Engagement letter, you agree to pay us an amount equivalent to the GST imposed on these charges.


6.0 Interest


    1. Interest at the maximum rate prescribed in Rule 75 of the Legal Profession Uniform General Rules 2015 (the “Uniform General Rules”) (being the Cash Rate Target set by the Reserve Bank of Australia plus 2%) 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.


    2. The Uniform General Rules provide 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.


7.0 Engaging Another Law Practice


7.1. We may, with your approval, engage another law practice or expert counsel (for example, a barrister) on your behalf. In that event we will inform you, as soon as reasonably practicable, of the prescribed information concerning the costs of that law practice. You may, if appropriate, be asked to enter into a costs agreement with them.


8.0 Changes to Rates


8.1. We note that the hourly rates set out in the body of the Engagement letter are subject to adjustment annually. We will, of course, notify you if these are changed, 30 days before they become effective. In lengthy matters this may impact upon our costs estimate (which may be revised accordingly).


9.0 Variables


    1. Some of the variables which may impact upon the costs estimate provided in the main Engagement letter include the following:


      1. actions taken by third parties in relation to the Engagement, for example in any judicial or administrative proceedings;

      2. rulings by a court or tribunal in respect of any proceedings relating to the Engagement;

      3. the number and duration of telephone calls or other communications;

      4. your prompt and efficient response to requests for information or instructions;

      5. whether your instructions are varied;


        07435-00001/10108398.1

      6. whether documents have to be revised in light of varied instructions;

      7. the lawyer or other persons with whom we deal and the level of co-operation of the lawyer’s clients and other persons involved;

      8. changes in the law; and

      9. the complexity or uncertainty concerning legal issues affecting your matter.


10.0 Your Rights in relation to Billing and Costs


    1. It is your right to:


      1. negotiate a costs agreement with us;

      2. negotiate the method of billing (eg. task based or time based);

      3. receive a lump sum bill in respect of legal services provided;

      4. request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;

      5. seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs;

      6. be notified as soon as is reasonably practicable of any substantial change to any matter affecting costs;

      7. request in writing, and be provided with, 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;

      8. accept or reject any offer we make for an interstate costs law to apply to your matter; and

      9. notify us that you require an interstate costs law to apply to your matter.


    2. 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.


    3. Nothing in these terms and conditions affects your rights under the Australian Consumer Law.


11.0 Your Right to Dispute Costs


    1. If you have a dispute in relation to any aspect of our legal costs you have the following avenues of redress:


      1. in the first instance, we encourage you to discuss your concerns with us so that any issue can be identified and we can have the opportunity of resolving the matter promptly and without it adversely impacting on our business relationship; or

      2. you may apply to the Manager, Costs Assessment of the Supreme Court of NSW 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.


12.0 Costs Recoverable on Litigation Outcome


    1. We are required by the Act to provide you with an estimate of the range of costs that may be recovered by you if you are successful in any litigation related to the Engagement and the range of costs that you may be ordered to pay if you are unsuccessful in the litigation. It should be appreciated that an order by a court for the payment of costs in your favour will not necessarily cover the whole of your legal costs.

    2. Based on our instructions, we estimate that:


      1. approximately 40-60% of costs are recoverable by you if you win the litigation, or

      2. approximately 40-60% of costs are payable by you to the opposing side if you lose the litigation.

    3. Our figures are estimates and should be viewed as guidance only.

    4. Please note:

      1. all courts have discretion in respect of awarding costs. Costs are normally awarded in favour of the successful party in the proceedings. In some courts (such as the Small Claims Division of the Local Court) and for claims less than $20,000 in the Local Court, the amount of costs you can recover are very limited;

      2. the amount of costs that the court may award you (if successful) or order you to pay (if unsuccessful) will also be influenced by whether or not an offer of compromise or a Calderbank settlement offer has been made in the proceedings. If such a settlement offer is made and not accepted, and at the hearing of the matter the maker of the offer achieves an outcome as favourable or more favourable than that set out in the offer, then (whilst always having a discretion) the court may (in the case of a Calderbank offer) or is likely to (in the case of an offer of compromise) award costs on an indemnity basis from the date the offer was made against the party who did not accept the offer;

      3. the estimated ranges of costs are prepared bearing in mind that only a certain percentage of your total legal costs are recoverable or may be payable. Simply put, even if you win and obtain an order that the other party pays your costs, you will still be out of pocket with respect to legal costs charged by us on the solicitor/client basis;

      4. if you win at first instance, you may still face the prospect of meeting the costs of defending your verdict, if the other side appeals. If you lose at first instance, you may be advised to appeal;

      5. any cost estimates provided with respect to an appeal are very uncertain as the costs associated with an appeal will depend upon many factors including initial trial length, findings by the court of first instance, nature of appeal to be run and which party is appealing. The possible costs associated with winning or losing on appeal are not dealt with in this document, but will be advised to you should an appeal follow the result at first instance;

      6. even if you are successful in proceedings and have a costs order in your favour, it may still be necessary to seek to enforce such costs order through the court system. This can be time consuming and costly. The possible costs associated with such potential enforcement proceedings are not dealt with in this document, but will be advised to you should the relevant circumstances arise;

      7. courts and costs assessors take into account whether a successful party is entitled to an input tax credit in respect of legal costs already paid, when assessing costs recoverable by the successful party; and

      8. where a Court orders a payment of costs or lawyers' fees, and that payment is made to us, you authorise us to credit it against any amounts owed to us. Please note you will still be obligated to pay for any unpaid portion of our bills as they become due.

        13.0 Our Lien 19.0 Privacy


        13.1. Without affecting any other lien to which we are otherwise entitled at law over funds, papers and other property of yours in our possession, you agree that we shall be entitled to retain by way of lien any funds, property or papers of yours, which are from time to time in our possession or control, until all costs, disbursements, interest and other moneys due to us have been paid, and that our lien will continue notwithstanding that we cease to act for you.


        PART B – Our Engagement


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        14.0 Legal Services Only


        14.1. The advice provided in relation to the Engagement is of a legal nature only. You agree that you will not look to or rely upon us for any investment, accounting, financial or other non-legal advice.


        15.0 Changes to Our Engagement


        15.1. Any changes to the scope of the Engagement must be agreed in writing, and may require an additional Engagement letter.


        16.0 Conflicts


        16.1. We will take all reasonable care in the performance of the Engagement to avoid any conflicts of interest. As soon as we are aware of any circumstance in which we perceive a conflict arising, we will promptly inform you and take such action as may be reasonable and necessary to protect your interest


        16.2 In we notify you and the Funder that we believe that circumstances have arisen such that we may be in a position of conflict with respect to any obligations we owe to you and any obligations we may owe to the Funder, then you and the Funder agree that, in order to resolve that conflict, we may seek independent advice from counsel, the costs of which will be treated as part of the legal costs to be paid by the Funder.


        17.0 Future Conflicts

          1. We will collect personal information from you in the course of providing our legal services. We may also obtain personal information from third party searches, other investigations and, sometimes, from adverse parties.


          2. We are required to collect the full name and address of our clients by Rule 93 of the Uniform General Rules. Accurate name and address information must also be collected in order to comply with the trust account record keeping requirements of Rule 47 of the Uniform General Rules and to comply with our duty to the courts.


          3. We are required and committed to protecting your personal information in accordance with our obligations under the Privacy Act 1988 (Cth) and the National Privacy Principles.


          4. Personal information about you, provided by you and other sources, is protected under the Privacy Amendment (Private Sector) Act 2000 (Cth). Disclosure of such information may be compelled by law (eg. under the Social Security Act 1991 (Cth)).


          5. You also authorise us to disclose such information where necessary to others in furtherance of your claim/matter.


        20.0 Protection of Confidential Information


        20.1. We will protect your confidential information, and will not disclose such information unless you authorise us to or unless we are required by law. You agree that we may, on a confidential basis, provide your information to third parties where we consider it appropriate for the proper conduct of your matter.


        20.2 You authorise us to provide all Claimants and the Funder with confidential updates of the progress of the Litigation and in doing so, you do not intend to waive any privilege (between us and you) which may attach to such communications.


        21.0 Retention of Your Documents


        17.1. Our firm has many lawyers and numerous offices. You consent and understand that, provided it does not give rise to a legal conflict of interest, lawyers in our other offices may be representing other clients in unrelated matters against you, and that we may represent other clients in the future against you. A legal conflict of interest means, for example, where there is a real possibility that your confidential information which we possess could be used to your detriment.


        18.0 No Guarantee of Result


          1. In providing legal advice to you, we may from time to time express opinions or beliefs regarding the likely effectiveness of various courses of action or about results that may be anticipated.


          2. You understand that any such statements are opinions and beliefs only and are not promises or guarantees. We cannot and do not guarantee any particular course or outcome of the Engagement.

          1. Once the Engagement has concluded, and subject to payment of all outstanding fees and disbursements, you may request the return of files relating to the work to be performed pursuant to the Retainer. We may charge you for the reasonable costs of retrieval, assembly, copying and transfer of all files or materials in any format.


          2. It is our practice to retain the permanent records of the matter, in accordance with our records retention policy, for a period of not less than 7 years after the Engagement has ended.


          3. If you do not request the files in writing before the end of our retention period, upon the expiration of that period we will have no further obligation to retain the files and may, at our discretion, destroy the files without further notice to you. The 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.

        22.0 Termination


          1. Above all, our relationship with you must be based on trust, confidence and clear understanding. Accordingly, but subject to the Litigation Funding Agreement, you may terminate this representation at any time, with or without cause. Subject to the rules of professional responsibility, we also reserve the right to withdraw with reasonable written notice if, among other things:

            1. you refuse or fail to cooperate with us or to follow our advice on a material matter; or

            2. any fact or circumstance arises that, in our view, renders our continuing representation unlawful or unethical.


    1. Any termination of our representation of you would be subject to such approval as may be required from the Funder, and any court in which we are appearing on your behalf. In the event of termination by either of us, fees and costs for work performed prior to termination will still be payable to the extent permitted by law.


23.0 Applicable Law


23.1. The laws in force in New South Wales govern this Agreement.


24.0 Severability


24.1. Should any part of this Retainer be rendered or declared invalid by a court, the part of the Retainer that has been declared invalid shall be severed, and should not invalidate the remaining Retainer. The remaining clauses shall remain in full force and effect.