These Terms of Engagement, together with any engagement letter sent or provided by us (together, the Terms), shall apply to all services provided to you except where we mutually agree otherwise in writing.
Definitions and interpretation
Definitions
In addition to the defined terms in brackets and bold type throughout these Terms, the following definitions apply in these Terms:
CHK means Couch Harlowe Kovacevich Limited (NZCN 8695367).
We, us and our means CHK.
You and your means the client that has engaged, proposes to engage or formerly engaged CHK (as the case may be).
Rules of Conduct and Client Care means the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
AML/CFT Act means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
Interpretation
In these Terms, the following rules of interpretation apply:
Headings and subheadings have been inserted for convenience only and will not affect the interpretation of these Terms.
References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.
References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).
References to persons include natural persons, companies and any other body corporates (wherever incorporated) and unincorporated bodies (wherever formed).
A gender includes each other gender and the singular includes the plural and vice versa.
Derivations of any defined word or term shall have a corresponding meaning;
If these Terms are translated into any language other than English, the English language version shall prevail.
No rule of construction (including the contra proferentem rule) applies to the disadvantage of a party because that party (or its relevant advisor) was responsible for the drafting of these Terms or any part of it.
Our structure
Ownership and operation
Couch Harlowe Kovacevich is owned and operated by CHK, a limited liability company incorporated and registered in New Zealand with company number 8695367.
Incorporated law firm
We are an incorporated law firm in New Zealand that is regulated by the Lawyers and Conveyancers Act 2006 and the Rules of Conduct and Client Care.
Trading names
We operate under the trading name “Couch Harlowe Kovacevich”, along with the abbreviated trading name “CHK”.
Not a partnership
We are not a partnership (as the term “partnership” is defined in the Partnership Law Act 2019) and no such partnership exists between CHK, its directors and/or its shareholders.
The use of the title “Partner” by a lawyer at CHK is a commercial job title only and does not, and is not intended in any way to, signify that a partnership exists between CHK, its directors and/or its shareholders.
Any lawyer at CHK who uses the title "Partner" is a director of CHK (as the term “director” is defined in the Companies Act 1993).
Acceptance of these Terms
Physical signing not necessary
You do not need to physically sign these Terms in order to accept them.
Deemed acceptance
You agree that you will be deemed to have accepted, and become legally bound by, these Terms by continuing to instruct us to undertake work for you.
Other means of acceptance
Without limitation, you may also agree to these Terms by:
signing a document that confirms that you accept them;
confirming via email that you accept them; and/or
indicating that you wish to proceed with a matter and/or for us to undertake work for you.
Payment
Fees
We will charge a fee that is reasonable for the services that we provide to you.
Determining our fee
In determining our fee, we will take into account the hourly rates of our personnel who have worked on the matter, as well as other relevant criteria approved by the New Zealand Law Society (NZLS). This includes:
the skill, specialised knowledge and responsibility required;
the time expended;
the value of any property or money involved;
the importance of the matter to the client;
the complexity of the matter;
the number and importance of the documents prepared and/or perused; and
the urgency and circumstances in which the business is transacted and/or in which the matter must be completed.
Charge out rates
Upon your written request, we will inform you of our charge out rates for the people working on your matter(s) and (where we are able to do so) give you an estimate of the cost of our services.
Currency
All sums payable to us are payable in New Zealand currency, except where we agree otherwise in writing with you.
GST
New Zealand goods and services tax (GST) is payable by you on our fees and disbursements, except where we agree otherwise in writing with you.
Disbursements
We may incur and charge for disbursements, or engage and on-charge to you external consultants or advisers on your behalf, which are properly required in order for us to undertake our services to you. These include compliance costs and customer due diligence costs under the AML/CFT Act.
Office service charges
We will incur miscellaneous costs, and other out of pocket costs, in the ordinary course of providing legal services to you, which are generally described as office services costs.
Examples of these costs are courier charges, photocopying, printing costs, binding costs, information retrieval, costs for national or international phone calls, fax charges, data charges and costs for minor or short communications or calls not captured in our fees.
Unless determined otherwise by us and/or subsequently amended and notified in writing to you, we may charge for the costs under this clause 5.7 at a fixed office services charge of 3.0% as an additional charge on top of the base legal fee (i.e. net of GST).
Funds on interest bearing deposit
Where we place your money on interest bearing deposit, we reserve the right to charge you a commission of 5% on the interest earned.
Payment on request
On our written request, you will be obliged to pay to us all money due and owing by you to us.
Pre-payment
We may (at our sole discretion) ask you to pre-pay amounts to us or provide security for our fees and disbursements.
Interim invoices
We may (at our sole and absolute discretion) issue interim monthly invoices for our services, or at such other intervals that we consider necessary or appropriate.
Application of funds held
If we are holding money on your behalf and there are outstanding amounts owing by you to us, or a fee has been agreed by you on a matter, you authorise us to apply such money towards any outstanding amounts or (as applicable) the agreed fee.
Timing for payment
Our invoices are payable in full on receipt. If payment is not made within 14 days, then without prejudice to our other rights (whether in statute, at law or in equity) we may:
charge interest on the outstanding amount at the rate of 12% per annum (calculated daily, compounding monthly) until payment is made in full;
charge you collection costs on a solicitor/own client basis; and
cease our work for you immediately.
Estimates and quotes
Qualifications and assumptions
If we provide you with any estimate or quote for our services, it will (in all cases) be subject to the following qualifications and assumptions:
Your instructions are complete and accurately describe our required role on the matter.
The matter will proceed and be completed:
in the manner anticipated in your instructions; and
within any indicated or normal timeframe, or any timeframe expressly specified by us, in the estimate or quote or related correspondence.
No unforeseen impediments will arise, and no unforeseen or unexpected events will occur, that will require additional work or that will change the nature of the work required from us.
You will provide any and all information or instructions that we require to undertake our work in a timely and efficient manner.
All parties and other advisers and intermediaries involved in the matter will be cooperative and reasonable in their dealings with us and you and that any negotiations will not be unduly protracted.
Any third party or regulatory consents or approvals will be given in a timely manner and will not involve protracted negotiations or delays.
Our estimate or quote may need to be revised once all the available information in respect of the relevant matter has been provided.
GST and disbursements excluded
Unless specified otherwise by us in writing, GST and disbursements are excluded from any estimate or quote.
Cost breakdown
Any cost breakdown that we provide to support our estimate or quote is indicative only, and we may adjust any component of such cost breakdown if we consider it necessary or appropriate.
Work outside of scope
Any work you ask us to undertake outside of the scope of our estimate or quote will be charged for separately. This includes all additional work we undertake because any of our qualifications and assumptions (as stated above at clause 6.1) are not correct (whether in whole or in part).
Client Information
Customer due diligence
We are obliged to comply with all laws binding on us, including anti-money laundering laws and counter financing of terrorism laws (the Applicable Laws). As a result, we may be required to perform customer due diligence on:
you;
persons acting on your behalf; and
other relevant persons, such as your beneficial owners or persons who have effective control over you.
Collection of information
You expressly authorise us to collect information about you (including customer due diligence information) to:
confirm that information provided to us about you is true, complete and accurate;
undertake initial and on-going customer due diligence and monitoring in accordance with Applicable Laws;
undertake credit checks and enforce debt and legal obligations (including recovery of money owed to us); and
comply with any and all Applicable Laws, including reporting any unusual or suspicious activity.
Disclosure
You authorise any person or entity approved by us (in our sole and absolute discretion), including reporting agencies, credit providers and third-party databases, to disclose information to us in response to customer due diligence enquiries and accept that we may use customer due diligence services (including electronic based services from a third party) to verify your identity and conduct other customer due diligence or monitoring required under Applicable Laws.
Our rights
If the information or documents that are required to complete or continue your engagement with us are not provided, or it is suspected by us that the business relationship or transaction is unusual, may breach any Applicable Law or may otherwise relate to conduct that is illegal or unlawful in any country, then we may (with or without notice):
refuse to enter into a business relationship with you;
suspend our business relationship with you;
terminate our business relationship with you;
refuse to process a transaction (including by refusing to receive, hold and deposit money on trust for you); and
report any transaction.
Conflicts of interest
Discussion and solution
If a conflict of interest arises in relation to a matter that we have been instructed on, we will discuss that conflict with you and agree a possible solution.
Independent legal advice
Where we receive instructions that give rise to a conflict of interest, we may need to refer you and the other client to other lawyers for independent legal advice.
Cessation
Where we are already acting for you on a matter and a conflict arises, we may have to cease involvement on that matter without delay.
Termination
Right to terminate
You may terminate our engagement at any time, and we may terminate it in the circumstances permitted by the Rules of Conduct and Client Care.
Termination on reasonable notice
We may, by giving you reasonable written notice, terminate our engagement at any time.
Payment liability
If our engagement terminates you must pay to us all fees and disbursements incurred up to and including the date of termination.
Liability
Limitation of liability
To the maximum extent permitted by law, our total liability to you in connection with any matter (or series of related or connected matters) on which you engage us will not exceed:
NZ$5,000,000, if an amount is available to be paid out under our relevant insurance policies in respect of our liability to you; and
in any other case, the lower of an amount equal to three times our paid fees in the previous twelve months in respect of the matter (excluding disbursements and GST) or NZ$1,000,000.
Application
The limitations in this clause 10 apply:
to all forms of liability, whether in contract, tort (including negligence), equity or otherwise; and
to any persons or entities related to or associated with you that engage us on any matter (or series of related matters),
such that our aggregate liability to you and all those persons and entities will be subject to these limitations (and you will procure that those persons and entities agree to this).
Joint and several liability
If we are engaged by more than one client on a matter, each such client will be jointly and severally liable to us under these Terms.
Indemnity
Definition
In this clause 11, Third Party Claim means any claim, investigation, inquiry or proceeding against or into us and/or any of our personnel in connection with our services (including any trust account services) that is brought or made by any person other than you.
Indemnity for Third Party Claims
You hereby indemnify, and will keep indemnified, us and our personnel against any liability, loss, damage, cost or expense (including legal expenses) suffered or incurred in connection with a Third Party Claim, except to the extent that the Third Party Claim arises as a consequence of our fraud or gross negligence.
Files and Records
Electronic copies
We will keep electronic copies of our client files and records and you authorise us to make electronic copies of all documents that we receive from you or on your behalf.
Destruction and disposal
If we have made an electronic copy of a document, you authorise us to destroy or dispose of it (unless you first instruct us in writing not to).
Intellectual Property
Ownership
We will own all copyright that exists or is created in our work.
Licence
If you have paid our fees and other money you owe us for our work you will be deemed to be granted a non-exclusive licence to use our work. That licence is entirely personal to you and is not assignable or otherwise transferable in any respect (unless we agree otherwise in writing).
Confidentiality
Paramountcy
Preserving the confidentiality of all clients’ information is of paramount importance to us. Accordingly, we will not disclose confidential information obtained from you as a result of acting for you unless:
you provide your consent; or
we are required to make disclosure by law or by any legislative or regulatory authority or under the Rules of Conduct and Client Care.
Other clients
We are not, in any event, able to disclose to you information that we obtain through acting for other clients.
Electronic means
Where we provide any service to you by electronic means, or communicate with you by electronic means, we will take reasonable precautions to ensure that those services and communications are confidential and secure. However, we cannot guarantee this.
General provisions
Entire agreement
These Terms constitute the entire agreement of you and us relating to the matters dealt with in these Terms and supersede and extinguish any previous agreement (whether oral or written) between you and us in relation to such matters.
Assignment
You may not transfer or assign any of your rights or obligations under these Terms or in relation to any engagement of us on any matter.
Amendments
We may amend these Terms by:
giving you written notice of such amendments; and/or
placing new terms or material on our website.
Any other new terms or material regarding our services apply to all services we provide you after the date that we notify you or place the new terms or material on our website (the Amendment Date).
Any new terms or material relating to our Professional Indemnity Insurance, the Lawyer’s Fidelity Fund or our Complaints Policy will apply to our past, current, and future services from the Amendment Date.
Governing law and jurisdiction
These Terms and any other agreement we have with you are governed by New Zealand law and are subject to the non-exclusive jurisdiction of the New Zealand courts.
Special information for clients
Rules of Conduct and Client Care for Lawyers
The information in this clause 16 is required by the Rules of Conduct and Client Care for Lawyers, as issued by NZLS, and is to be provided by lawyers to their clients.
Fees
The basis on which fees will be charged by us in respect of a matter, and when payment of fees is to be made, are set out in these Terms.
Services
We will provide our services to you in a professional manner and give you a full statement of account for those services.
Professional indemnity insurance
We hold professional indemnity insurance that exceeds the minimum standards specified by NZLS. We will provide you with particulars of those minimum standards upon your request.
Lawyers Fidelity Fund
NZLS administers a Lawyers Fidelity Fund which provides clients with some protection against loss caused by theft by a lawyer of money or other assets entrusted to the lawyer.
Complaints
If you have a complaint about our services or charges, you may refer your complaint to the Partner at CHK who has overall responsibility for your work.
However, if you do not wish to refer your complaint to that person, or you are not satisfied with that person’s response to your complaint, you may refer your complaint to another Partner, whom you may contact by letter, by email at the email address for that Partner appearing on our website www.chk.law, by telephoning our office and asking to speak to that Partner, or by any other means.
The Law Society also maintains a complaints service and you are able to make a complaint to that service by contacting the Law Society, whose contact details are:
Postal Address: PO Box 5041, Lambton Quay, Wellington 6145 (DX SP20202), New Zealand. Telephone: 0800 264 801 Fax: +64 4 473 7909 Website: www.lawsociety.org.nz
Responsibility
The names and status of the person or persons who will have the general carriage of, or overall responsibility for, the services we agree to provide for you are set out in our engagement letter.
Personnel
If at any stage you would prefer a change in the personnel handling a matter, please contact either the Partner responsible for the matter or another Partner of CHK.
Client care and service
Whatever legal services we are providing to you, we must:
act competently, in a timely way, and in accordance with instructions received and arrangements made;
protect and promote your interests and act for you free from compromising influences or loyalties;
discuss with you your objectives and how they should best be achieved;
provide you with information about the work to be done, who will do it and the way the services will be provided;
charge you a fee that is fair and reasonable and let you know how and when you will be billed;
give you clear information and advice;
protect your privacy and ensure appropriate confidentiality;
treat you fairly, respectfully and without discrimination;
keep you informed about the work being done and advise you when it is completed; and
let you know how to make a complaint and deal with any complaint promptly and fairly.
The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
Questions
If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.