Terms of Engagement

We will provide a description of our initial legal services to you in an engagement letter.  These terms apply to that and any further engagements when you receive these terms.  You accept these terms each time you instruct us unless we agree otherwise.

We act on clear instructions.  Where you can’t or won’t provide such instructions, we will cease work until instructions are received and won’t accept liability until there are instructions.  

When you instruct us you accept full liability to pay invoices for work done and for all costs, agency fees, expenses, taxes and disbursement costs incurred in respect of your instruction.  

If we provide professional services to you for the purposes of a business, or in relation to your business, you acknowledge that the provisions of the Consumer Guarantees Act 1993 shall not apply with respect to such professional services as per section 43 of that legislation.

You agree to immediately provide all information you possess that is relevant to any matter we act for you on.  You confirm you have or will provide full disclosure of all relevant information and matters.  Should any relevant information come to your attention at any time after your first consultation with us, you agree to provide it to us as soon as possible.   If it eventuates you did not provide full disclosure, we may terminate your retainer entirely at our discretion.

To the extent permitted by law, our total liability to you in connection with any matter or related matters, including interest and costs, will not exceed the lesser of four times the amount of professional fees we have invoiced you (on all matters) in the 18 months prior to the event giving rise to the claim where the fees have been paid, or $5,000,000 NZD.

We are only qualified to advise on New Zealand law.  We have no liability in relation to your exposure to foreign law.

The limitations in this clause apply to all kinds of legal liability arising from any aspect of our involvement in your matter, including the use and storage of information or data.

We will regularly liaise with you regarding the progress of your matters.   While we will deal with your matter promptly, we set the timeframe within which we will progress or complete your matter based on current staff and client workloads and deadlines.  We will keep you informed of progress, particularly if there are outside factors that are impeding progress.

We will hold in strict confidence all information and documentation we acquire through working for you.  We may disclose such information if you authorise that or if we must do so under applicable laws and regulations.  

We are not required to disclose to you any information we hold in relation to any other client.  

Where we provide an electronic service to you or communicate by electronic means, you consent to this.  We will take every reasonable precaution to ensure the communications are accurate, reliable, adequate, complete, confidential and secure. However, emails are susceptible to corruption, interception and unauthorised amendment.  Signing these terms or continuing to engage with us means you accept these risks that are outside of our control.

All files, documents and other written documents prepared by us on your behalf are always our property until paid for by you in full.  You are entitled to copies at your expense at our usual rates.  Copies of file contents will not be provided to you unless our fees and disbursements have been paid in full and/or you have reimbursed us for expenses relating to providing a copy of the file to you.  We will provide you with a PDF copy by email or an electronic link to a storage system, such as Dropbox.  

Original documents will be couriered to you at your expense.  

Where you instruct another firm, that firm cannot uplift our files and documents until either all our outstanding fees, disbursements, taxes and expenses are paid in full or that firm provides us with their undertaking to make payment on your behalf on a date we agree to.

Our fees are charged in accordance with NZLS guidelines. They are fair and reasonable, having regard to the circumstances of the matter, the nature of the work you have asked us to perform and the degree of urgency needed.  Our rates may be subject to change without any further notice to you.  They are based on time spent, expertise, importance, complexity, novelty, the value of property involved, urgency, the reasonable cost of running a law practice, the result, importance to you and number and complexity of the documents prepared or perused.

We keep a record of all time spent working for you. Our timesheets are for internal business purposes only and we are not obligated to provide a copy of these to you at any time.

Our invoice describes the work done and any expenses/disbursements incurred.  Under no circumstances are we are obligated to honour old rates. Separate charges will be made for other expenses as set out below.  Our fees are to be paid in New Zealand dollars only.

We are not obligated to inform you of the cost of each of the below charges in advance. Third party costs can change without notice to us and these are passed onto you. You can enquire with us if you wish to know the costs of expenses and disbursements to be charged at the outset of your instructions.

We charge all disbursements and travel expenses incurred on your behalf. We may charge a travel hourly rate for all travel that is of more than half an hour duration.  This will be agreed at the relevant time.  

We may charge a mileage rate as notified by Inland Revenue at the time of travel.

We will notify you if any fees or disbursements need to be paid for in advance.

All expenses/disbursements incurred on your behalf will be charged to you.

Expenses and disbursements and administration costs can include: file opening fees (including charges for postage, tolls, scans, photocopying), AML client due diligence checks, courier fees, court filing fees, Kiwisaver applications, water rate requests, company office searches, council searches, PPSR searches, LINZ search and registration fees, levies, e-dealing administration fees, payments of REA or other commissions, preparing undertakings, solicitor’s certificates, transfer of building guarantees, review of LIM, building, toxicology reports, bank requirements for loans/securities, Kiwisaver and/or HNZ documentation, preparing agreements, notices of sale, minutes, resolutions, agreements, agency fees, registrations, travel expenses (for both our time and our mileage), excess postage, toll calls, faxes, photocopying, scanning, forms, stationery, file retrieval costs, software, library costs, drafting and reviewing costs, submitting documents, government charges, bank charges, original documents filed in our deeds register, credit checks and default listings, administration fee for use of our electronic client webforms portal, and any other incidentals we deem necessary to carry out your instructions to us.  GST is payable on all services provided including for fees, disbursements, expenses and our chargeable administration costs.

We cannot always provide you with an estimate and we might not provide written quotes. If we do not know how significant the work involved will be or you provide less than full disclosure, our estimate could be wrong or not able to be relied on.

All estimates will be provided for fees only but disbursements, expenses or GST may also be chargeable. Estimates are provided on a “best guess” basis and are not a contractual obligation on us unless we specifically agree to that in writing.

If the work does not proceed as expected by us, or is much more complicated than we expected based on your disclosure, we reserve the right to charge for all additional work done to complete the work if you continue to instruct us.   Where we cannot complete your instructions for an applicable estimate, we will advise you in a timely manner and charge you for work undertaken to that point.  If you continue to instruct us, you agree it is at our applicable rates unless we agree otherwise.

Cowan Law maintains a trust account for all funds it receives from clients.  

You agree pursuant to rule 3.4(a) of the Rules of Client Care and Conduct that upon invoice to your last known address and/or email, you provide your irrevocable authority that our fees may be deducted from funds held in our trust account for you.

You also provide your irrevocable authority to us to request from any other solicitor who holds funds in their trust account for you, in respect of matters relating to work done by Cowan Law, to advance all fees/disbursements/expenses/taxes to us in full immediately upon the receipt of our invoice .  

We retain the right to immediately set off any credit funds held in our trust account on your behalf, against any fees or expenses which we have incurred on your behalf or any other monies which may be owed by you to us. You agree that any monies placed in trust for the advance payment of our fees are for the sole purpose of payment of our fees and no other purpose.

Where your matter results in the payment of funds into our trust account, you give us irrevocable authority to lodge those funds on interest bearing deposit (when and at our discretion) if we deem this to be in your best interests and in compliance with our professional obligations and you authorise us to deduct an administration charge of 5% of the interest derived (at our discretion) and/or deduct our fees, expenses, disbursements and other charges prior to the funds being distributed to you.

As we are not obligated to provide credit services to clients, we may also ask you to pre-pay some or all of our fees to us in advance or provide us with security for the payment of our fees and expenses (a “retainer”).  This may apply to new or existing clients.  Such payments will be into our trust account.

If you are instructing us in the capacity as a partner, director, shareholder, settlor, trustee or executor/administrator of an estate, your instructions are accepted on the basis that you remain at all times  personally liable (along with the company, trust, estate, limited partnership) to pay our  fees, disbursements, expenses and GST.  Where a director, trustee, executor, administrator or partner provides us with a personal guarantee for a company, partnership, trust or estate, you acknowledge you have received the opportunity to seek independent legal advice but have chosen to waive your right.  Where there is one or more parties instructing Cowan Law, liability is on a joint and several basis.

We are not obligated to provide clients with credit facilities.  At our sole discretion we may allocate a confidential credit limit to you.  We may increase or decrease this amount at our sole discretion and without notice to you. We may stop working for you, (and instruct others to stop working for you) if your credit limit is exceeded and payment is not received by us when you are invoiced.  You authorise any person, third party or agency to provide us with your confidential credit information at your expense at any time for us to assess your creditworthiness.

In consideration of us providing professional legal services and extending credit to you pursuant to these terms, you agree to mortgage all your estate and interest in all real estate owned by you from time to time.  Pursuant to this agreement to mortgage, you irrevocably grant us a power of attorney to execute and register on behalf of you a registerable mortgage in the form customarily employed by solicitors practicing in the Auckland District to secure all unpaid fees, expenses, disbursements, recoverable costs, damages, monies paid on your behalf because of our undertakings and taxes owed by you.

We will regularly issue interim invoices while work is in progress with a final invoice upon completion of your work. If your work is going to extend over a longer period, Cowan Law will bill you monthly.  If so, invoices will be calculated on the time spent on your matter.  

Payment terms are set out on our invoice.

Unless we agree in writing otherwise, all fees/disbursements/expenses/taxes must be paid in full immediately upon an invoice being rendered to you by email.  We reserve the right to stop working on all matters where accounts are overdue.

Until all outstanding monies owing to us are paid in full, you acknowledge that we have no obligation to provide or forward originals or copies of any file, documentation or deeds.   Cowan Law may charge interest to you at the rate of 14% per annum on all outstanding sums until that sum, accrued interest and collection costs (if any) are paid in full.   Interest will be calculated daily, and compounded quarterly and applied to your account. You can pay our invoice by internet banking (Cowan Law Trust Account, ASB Bank, Account number 12-3109-0143885-02.)

Where accounts remain unpaid and we have not agreed in writing an arrangement for the payment of outstanding fees, interest and disbursements, we may charge you our reasonable costs and disbursements (including any legal fees and court costs we may incur on a full solicitor/client basis) required to recover those amounts.

If Cowan Law is acting for you in any litigation and it becomes necessary to withdraw as your Counsel due to the non-payment of fees, you will meet all costs associated with Cowan Law withdrawing as Counsel, including Court filing fees and our time/travel costs for making any such application to the Court.  

If it is necessary for Cowan Law to file legal proceedings against you for any reason including a default by you in payment, we reserve the right to file Court proceedings in the Court closest to Cowan Law, or of our choice.  We may lodge a default against you with credit reporting agencies for all outstanding sums.

Where you give us any instruction and we rely on that instruction (for example by giving an undertaking to a third party) you may not revoke that instruction.   Otherwise, you may terminate our retainer on reasonable notice at any time. We may also terminate our retainer at any time in any of the circumstances set out in the Law Society’s Rules of Conduct and Client Care for Lawyers.  

If our retainer is terminated you must pay all fees and expenses and disbursements due and incurred up to the date of termination.

If our engagement is terminated, by either party, these terms continue to apply in respect of your instructions on  any matter.  If our account is not paid by the required date, we may cease working on your matter until payment is received.  Alternatively, we may cease working for you altogether.  We retain full custody of your papers or files until our account is paid in full (including interest and expenses). If the engagement is terminated by either party, you will pay all fees (including any un-rendered accounts to the point of termination date) and expenses/disbursements. Cowan Law will not be liable for any costs incurred by you from third parties as a result.

Your personal information will be held in accordance with our Privacy Policy, as updated from time to time and published on our website www.cowanlaw.co.nz .

If we need to take any legal or debt collection action to obtain payment of our fees, disbursements and/or expenses from you, you irrevocably authorise us to collect, retain, use and provide your personal information to third parties, agents and agencies for the purpose of a) ascertaining your creditworthiness and for b) debt collection purposes  in the event of your non-payment of any monies owed to us, and c) to disclose and register your non-payment as a default with any debt collection agency of our choice whether collected by us or third parties, and register that default and any matter pertaining to your credit worthiness and the collection of our unpaid fees, expenses and disbursements pursuant to provisions contained in the Privacy Act 2020.

We advise you that we may take CCTV and audio footage of any meetings with you, whether by electronic means or in person.  This is for the purpose of accuracy in taking your instructions, security and for evidential purposes should you make a complaint about us. By signing these terms and instructing us to act for you, you irrevocably agree we have your consent to obtain video and audio footage and that, where necessary, we can provide that footage, audio or transcript to the NZLS and LCRO if you make a complaint about us.

You authorise us (without any further contact with you) to destroy all files and documents for any matter you instruct us on seven years after our engagement ends, or earlier if we have converted those files and documents to electronic format, except for AML, FATCA, CRS, OIO & LINZ Authority & Instruction forms which we are required to retain for 10 years.  

Cowan Law will hold certain deeds and documents in safe custody for you.

Cowan Law periodically audits the deeds and documents held and if Cowan Law believe that certain deeds and documents have expired then you will be notified at your last known address to uplift the deed or document.  If Cowan Law does not receive any response from you within a timeframe set by us, you irrevocably authorise us to destroy the deed or document.

We have procedures in place to identify and respond to conflicts of interest.   If a conflict of interest arises we will advise you of this and follow the requirements and procedures set out in the New Zealand Law Society’s Rules of Conduct and Client Care for Lawyers.

Our duty of care is to the client(s) named in our letter of engagement.  We do not owe any duty of care to any other person and/or entity.  Specifically, if you are a company or other corporate or unincorporated entity, we do not act for your shareholders, related companies, directors, partners or members.  If any other person wishes to rely on our advice, they can only do so with our express written agreement.

We are not financial advisers regulated by the Financial Advisors Act 2008 or the Overseas Investment Act 2005.  We are not permitted to give you financial advice but may need to refer to or comment on your financial arrangements when this is incidental to the legal advice, we are giving you.  If you need financial advice, you must engage an authorised or registered financial adviser.  We can assist you to identify the level of advice you need.

We also do not provide accounting or tax advice.   We do not provide any GST or income tax advice under the GST Act or the Income Tax Act.    We can assist you to identify what type of  advice you may need and refer to you a reputable chartered accountant, lawyer or taxation specialist.

Under the AML/CFT Act we are required to:

• Conduct ongoing due diligence investigations to verify your identity, the identity of any person acting on your behalf, or the identity of any shareholder, trustee or beneficiary (if you are a company or trust).
• Report suspicious activities with the Financial Intelligence Unit.

In compliance with all legislation, you irrevocably authorise and agree we can verify your identity and address, and authorise the same for all offices held including as director, shareholder, trustee, partner, beneficiary, executor, and settlor.  Identity verification will include the collection of information and documents from you and reliable independent sources.

The information required may include your full name, date of birth, address or registered office, company identifier, nature/purpose of business, and source of funds/wealth.

We may ask for other information.  Under the AML/CFT Act we are not required to disclose any information to any other party that is a privileged communication. Communication is deemed not privileged if there is a prima facie case that it is made/received/compiled or prepared for a dishonest purpose or to enable or if the commission of an offence, or if the information relates to financial transactions recorded in our trust account.

If we, at our sole discretion, deem any source of wealth to be suspicious and/or it cannot be adequately verified by you/us, you agree we can unilaterally and immediately terminate our engagement with you without any consultation with you.

Upon receipt of your instructions (whether verbal or written) or receipt of a draft or signed agreement from you or an agent, you are deemed to have instructed us to act for you and you have accepted all rates, terms and conditions even if you have not been provided with our rates and/or these terms or signed them.  Our terms always apply and in all future matters whether or not you receive an amended version. We reserve the right to change our terms from time to time and we may not notify you of those changes.  By instructing us, you are deemed to have accepted all future amendments.

Our relationship with you is governed by New Zealand law and the New Zealand Courts have non-exclusive jurisdiction.  Any dispute concerning these terms, or our work for you, is to be resolved in the New Zealand courts under New Zealand law.  The Managing Partner of Cowan Law is Doug Cowan.  

Where you are a company or other corporate or unincorporated entity, we act only for the person who instructed us. We do not act for the shareholders, other directors or members or the beneficiaries of any Trust unless we expressly agree otherwise. We may require personal guarantees to be executed by any or all director(s) and/or trustee(s). Where only one director/trustee executes a personal guarantee, the guarantee given by any of a trustee, partner, director or executor will bind all other similar persons on a joint and several basis whether or not they individually agreed to the terms.  These terms are not affected by any change to the Cowan Law partnership or operating structure.

CLIENT INFORMATION

We are committed to complying with the Rules of Conduct and Client Care for Lawyers.   To assist you, the following information describes some key elements of those rules and explains rights you have as a consumer of legal services.

Whatever legal services we are providing, 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 your objectives with you and how they would 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.
• Let you know how to make a complaint and deal with any complaint promptly and fairly.

These obligations are subject to other overriding duties, including our duty to the Courts and the justice system of New Zealand.

In return for the commitment, we make to you, you will:

• Provide full honest disclosure of all relevant information and matters from the outset and during the entire time of our representation, in a timely way and required by us to facilitate our ethical and professional ability to act on your behalf.
• Comply with all New Zealand legislation and AML, FATCA and CRA and tax legislation.
• Promptly advise us, particularly if anything changes, with respect to your instructions.
• Agree to pay our fees, expenses and disbursements upon invoice in full and without delay.
• Promptly advise us if you wish us to stop working on your behalf, at which point you will be liable for the fees, disbursements and expenses incurred on your behalf up to that date.

The names and status of the person(s) who have overall responsibility for your work will be set out in our letter of engagement.

We maintain a procedure for managing any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly and by a senior staff member of Cowan Law.  If you have any concerns or complaints about staff, or actions taken by Cowan Law, or our fees, please contact our Managing Partner in the first instance by email to doug.cowan@cowanlaw.co.nz or through other means of communication set out on our website, www.cowanlaw.co.nz.  If the complaint is about Doug Cowan, you may contact Angie Burling, Partner by email to angie.burling@cowanlaw.co.nz etc.  We are committed to resolving any issues as soon as possible. The New Zealand Law Society (“NZLS”) also operates a complaints service and you can contact them on 0800 261 801 or by emailing complaints@lawsociety.org.nz or PO Box 5041, Wellington 6140 or Level 4, 17 Whitmore Street, Wellington. We strongly encourage our clients to raise issues with us first.

We hold professional indemnity insurance that meets or exceeds the minimum standards specified by NZLS.

NZLS maintains the Lawyers Fidelity Fund for the purpose of enabling clients of lawyers with protection against pecuniary loss arising from theft by lawyers.  There are maximum amounts payable under the LCA.  We refer clients to the NZLS website in respect of information relating to the Fidelity Fund.
‍https://www.lawsociety.org.nz/professional-practice/client-care-and-complaints/lawyers-fidelity-fund/.