Conditions of sale
General Conditions of Business
As at 16 January 2012
These Conditions apply to all sales conducted and
services provided by the Company and any goods
which are held by the Company for valuation, storage
or any other purposes.
1. Definitions
In these Conditions the following words and expressions
shall (unless the context otherwise requires) have the
following meanings:
'Agreed Reserve' means the confidential minimum
Sale Price at which a Lot may be sold as agreed
in writing by the Seller and the Company on the
Consignment Agreement Form or otherwise.
'Auctioneer' means the representative of the Company
conducting the auction.
'Buyer' means the person to whom a Lot is knocked
down by the Auctioneer or a person who purchases
a Lot sold by the Company on behalf of a Seller by
private treaty or tender or any other sales process.
'Catalogue' includes any advertisement, brochure,
price list and other publication produced by the
Company.
'Charges' means charges and expenses paid or
payable by the Company in respect of a Lot as set out
in these Conditions, including legal expenses, packing
or shipping costs, taxes, levies, removal and storage
charges and interest, plus any GST payable. The
relevant charges and expenses will be passed on to the
Seller and/or Buyer at the price paid or payable by the
Company plus 10%, or otherwise as is set out in writing
or agreed by the Company and Seller and/or Buyer.
'Claims' means all sums of money, debts, dues, suits,
actions, causes of action, proceedings, arbitrations,
claims, accounts, liabilities, losses, demands, costs,
expenses, notices or any other type of claim howsoever
arising out of these Conditions or anything relating to
the subject matter of these Conditions.
'The Company' means Leonard Joel Pty Ltd ABN 27
136 908 597 trading as Leonard Joel unless written
notification to the contrary is provided.
'Consignment Agreement Form' means the form
signed, and a copy of which is received, by the Seller
containing the terms on which the Seller submits a Lot
or Lots for sale by the Company or the form used to
provide a record of an item or items taken into custody
for evaluation, research or advice.
'Dollars' or '$' means Australian currency.
'Estimated Selling Range' means the estimated Sale
Price range of a Lot.
'Expenses' includes all fees, charges and expenses
listed on the front page of the Consignment Agreement
Form and/or correspondence annexed to it and/or as
agreed in writing between the Company and the Seller.
'Forgery' means an imitation intended by the maker or
any other person to deceive as to authorship, origin,
date, age, period, provenance, culture, source or
composition, which at the date of the Sale had a value
materially less than it would have had if the Lot had not
been such an imitation, and which is not stated to be
such an imitation in the description of the Lot given in
the Catalogue. A Lot will not be a Forgery by reason of
any damage to and/or restoration and/or modification
work (including repairing or over painting) having been
carried out on the Lot, where that damage, restoration
or modification work (as the case may be) does not
substantially affect the identity of the Lot as one
conforming to the description of the Lot given unless
there was an intention to deceive
'GST' means a tax payable under the New Tax System
(Goods and Services Tax) Act 1999 as amended.
'Hammer Price' means the price in Dollars (including
GST, if any) at which a Lot is knocked down by the
Auctioneer to the Buyer unless it is auctioned again
('Second Auction') as a result of a dispute in which
event it means the price at which the Lot is knocked
down by the Auctioneer to the Buyer at the Second
Auction.
'Indemnity Fee' means the mandatory fee paid by
the Seller on all sold Lots with the exception of V Lots
and referred to in the Consignment Agreement Form,
being 1.5% of the Hammer Price, plus GST.
'Lot' means any item or items consigned by or on
behalf of the Seller to the Company with a view to its
sale at auction or by private treaty and includes a V Lot.
'Lot Number' means the number allocated by the
Company to a Lot prior to auction.
'Offer Fee' means the flat fee paid by the Seller
regardless of whether a Lot sells and referred to in the
Consignment Agreement Form.
'Premium' (unless otherwise stated in a relevant auction
Catalogue) means 20% of the Hammer Price paid by
the Buyer, plus GST.
'Purchase Price' means the aggregate of the Sale Price,
the Premium, any GST payable on the Sale Price and/or
the Premium and the Charges.
'Sale' means any private treaty or auction sale at which
a Lot is offered for sale.
'Sale Price' means the Hammer Price if sold at auction
or the price agreed by the Buyer at private treaty
(including GST, if any).
'Sale Proceeds' means the net amount payable
to the Seller, being the Sale Price less the Seller's
Commission, Expenses and any other amount payable
to the Company by the Seller as agreed between
the Company and the Seller (in whatever capacity
and howsoever arising, whether in relation to these
Conditions or otherwise).
'Second Auction' has the meaning set out in the
definition of Hammer Price.
'Seller' means in relation to any Lot the person or other
entity named as the Seller on the front page of the
Consignment Agreement Form who offers the Lot for
sale.
'Seller's Commission' means the amount paid by
the Seller to the Company on the sale of a Lot that is
calculated on the Sale Price at the rate agreed in writing
by the Seller and the Company on the Consignment
Agreement Form or otherwise, plus GST.
'V Lot' means any motor vehicle or marine vessel
consigned by or on behalf of the Seller to the Company
with a view to its sale at auction or by private treaty.
2. The Company as agent
2.1 The Company is the agent of the Seller in relation
to the sale of a Lot (except where it is expressly stated in
writing to be selling as principal) and is not responsible
for any default by the Seller or the Buyer.
2.2 The Seller instructs and authorises the Company
to:
(a) sell the Lot as the Seller's agent in accordance with
these Conditions;
(b) receive and hold all Sale Proceeds on the Seller's
behalf;
(c) sign on the Seller's behalf any documentation
necessary to transfer ownership of the Lot to the Buyer;
(d) allow the Lot to be inspected by prospective
Buyers prior to the Sale, at any time and in any manner
or place agreeable to the Company; and
(e) remove any Lot from the frame, holder, case or
covering to examine it.
3. The Company's discretion
3.1 The Auctioneer has the right at his or her sole
discretion to refuse any bid, to divide any Lot, to
combine two or more Lots, to withdraw any Lot from
Sale and, if there is a dispute or the Auctioneer or
the Company is of the opinion that there has been a
misunderstanding or mistake regarding a Sale or a Lot
the subject of a Sale, to rescind the Sale and put any Lot
up for a Second Auction.
3.2 If a Sale is rescinded, the Company may:
(a) put the Lot up for a Second Auction at a
subsequent Sale; or
(b) offer the Lot for sale by private treaty; or
(c) withdraw the Lot from sale.
3.3 The Company may refuse entry to its premises
or to any private premises at which it is conducting
an auction by any person or persons at its absolute
discretion.
4. Risk of personal loss or injury
The Company shall be under no liability for any injury,
damage or loss sustained by any person while on the
Company's premises or any Sale premises or where a
Lot, or a part of a Lot, may be on view from time to
time, except where the Company (and its employees or
agents) has not acted with due care and skill.
5. The Company's Estimated Selling Range and
descriptions
5.1 (a) Any Estimated Selling Range given by the
Company is a statement of opinion and should not be
relied upon as a representation as to the Sale Price a
Lot may achieve at a Sale.
(b) The Company reserves the right to revise the
Estimated Selling Range at any time with the agreement
of the Seller.
5.2 The Seller acknowledges that the Company is
entitled to rely on the accuracy of a description of a Lot
provided by or on behalf of the Seller.
5.3 The Company shall not be liable for any error,
misstatement or omission in the description of a Lot in
any Catalogue, unless the Company (and its employees
or agents) has engaged in misleading or deceptive
conduct.
6. Warranties of Seller
6.1 The Seller warrants to the Company and the Buyer
that:
(a) the Seller owns the Lot or the Seller is authorised
to sell the Lot by the owner (in which case, an original
signed authorisation by the owner must be provided to
the Company);
(b) the Lot is free from all liens, charges encumbrances
and third party claims including a claim by a spouse;
(c) the Seller has complied with all requirements,
legal or otherwise, in relation to any export or import
of the Lot and has notified the Company in writing
of any failure by third parties to comply with such
requirements in the past;
(d) the Lot and any written provenance given by the
Seller to the Company are authentic;
(e) the Seller has notified the Company in writing of:
(i) any material alterations to the Lot of which the
Seller is aware;
(ii) any concerns expressed by third parties in relation
to the authenticity, provenance, origin, age, condition
or quality of the Lot;
(iii) all information in the Seller's possession as to the
provenance and identification of the Lot including, in
respect of a V Lot, whether that V Lot complies with
the provisions of any road traffic or maritime Acts and
Regulations,
and that information is correct; and
(f) the Lot is fit for its purpose and safe if used for the
purpose for which it was designed and free from any
defect not obvious on external inspection.
6.2 For motor vehicles and number plates the Seller
will provide to the Company prior to the Sale all legal
and requisite title and registration certificates, permits
and other documents to transfer title of the Lot to the
Buyer.
6.3 The Seller acknowledges that the Company
relies on any information provided by the Seller and
the Seller agrees to indemnify and keep indemnified
the Company against all Claims arising out of or in
connection with this information.
6.4 The Seller agrees to indemnify and keep
indemnified the Company and or the Buyer against all
Claims arising from the Seller's actual or alleged breach
of any warranty in these Conditions.
7. Commission and Expenses
7.1 The Seller shall pay to the Company the Seller's
Commission and any other Expenses set out in the
Consignment Agreement Form.
7.2 The Company may deduct and retain the Seller's
Commission from the amount paid by the Buyer for
the Lot as soon as the Purchase Price, or part of it, is
received and before the Sale Proceeds are paid to the
Seller.
7.3 The Seller shall pay to the Company the relevant
Offer Fee on a Lot being offered for sale whether or not
the Lot is sold.
8. Reserves
8.1 All Lots will be sold without reserve unless there
is an Agreed Reserve. If a Lot has an Agreed Reserve
then it will be offered subject to the Agreed Reserve.
8.2 If there is an Agreed Reserve:
(a) it may only be changed with the written consent
of the Company although the Company may at its own
discretion consent to an oral request for a reduction
(but not an increase);
(b) only the Auctioneer may place a bid on behalf of
the Seller;
(c) neither the Seller nor any person on the Seller's
behalf may bid on the Lot;
(d) if the Auctioneer is of the opinion that the Seller or
a person on the Seller's behalf may have bid on the Lot,
the Auctioneer may knock down the Lot to the Seller
without observing the Agreed Reserve and the Seller
shall pay to the Company the Premium in addition to
the Seller's Commission and Expenses.
8.3 If a Seller purports to place a reserve on a Lot but
that reserve is not an Agreed Reserve, the Company will
sell the Lot without reserve unless the Seller withdraws
the Lot from Sale in accordance with clause 11.
8.4 If there is no Agreed Reserve, the Company shall
not be liable if the Sale Price of the Lot is less than the
Estimated Selling Range.
8.5 Where the Agreed Reserve for a Lot is $5,000 or
less and the Lot is offered for sale and is unsold, the
Company reserves the right to lower the Agreed
Reserve at each subsequent auctions for the Lot for a
subsequent Sale at subsequent auctions by up to 20%
for each subsequent auction.
9. Risk
9.1 Any V Lot in the power, possession or custody
of the Company (including during transportation by
employees or agents of the Company) shall at all times
remain at the risk of the Seller until the legal risk passes
to the Buyer (see clause 9.8 below) and, except where
the Company (and its employees or agents) has not
acted with due care and skill, the Company shall not be
liable for any Claims relating to any V Lot.
9.2 The Seller shall not make any Claim against the
Company in respect of loss of or damage to any V Lot,
except where the loss or damage is as a result of the
Company (and its employees or agents) not acting with
due care and skill, and, other than in circumstances
where the Company (and its employees or agents) has
not acted with due care and skill, the Seller indemnifies
the Company against all Claims relating to or caused by
any V Lot.
9.3 The Seller shall insure any V Lot in the power,
possession or custody of the Company for no less than
the maximum value of the V Lot as estimated by the
Company for loss of or any damage to the V Lot and
shall maintain that insurance until the Lot has been sold
and the Seller has been notified by the Company that
the Purchase Price has been received.
9.4 In respect of Lots that are not V Lots, the Company
indemnifies the Seller against some risks arising from
fire and other insurable perils, theft following forcible
entry, hold up and water damage to the extent of the
Company's insurer's liability to it in that regard. In the
event of a loss, except where the loss is as a result of the
Company (and its employees or agents) not acting with
due care and skill, the Seller may only claim an amount
up to:
(a) in the case of unsold Lots:
(i) the Agreed Reserve; or
(ii) in the absence of an Agreed Reserve, the low end
of the Estimated Selling Range; or
(iii) in the absence of (a) or (b) above, an amount
included in a loss assessment provided by the Company
or, if disputed by the Seller, by an independent loss
assessor appointed by the Company; or
(b) in the event that the loss occurs after the fall of
the Auctioneer's hammer and the Lot is sold but the
Company has not yet received payment from the Buyer
as cleared funds, an amount equal to the net proceeds
which would have been due to the Seller.
9.5 The company will charge the seller the Indemnity
fee for providing the Indemnity referred to in clause 9.4
if the lot is sold.
9.6 The Company's own insurance will subsist until
payment is made by the Buyer or, in the case of unsold
Lots, until the expiry of 7 days after notice from the
Company requiring the Seller to collect the unsold Lot.
9.7 Subject to clauses 9.4, the Company will not be
liable for any Claims relating to or caused by any Lot
or by the Seller, except where the Company (and its
employees or agents) has not acted with due care and
skill, and the Seller indemnifies the Company against all
Claims relating to or caused by any Lot, except where
the Company (and its employees or agents) has not
acted with due care and skill.
9.8 A purchased Lot shall be at the Buyer's risk in all
respects from the fall of the Auctioneer's hammer
whether or not payment has been made and neither
the Company nor the Seller shall thereafter be liable
for, and the Buyer indemnifies the Company against,
any loss or damage of any kind, except where the
Company (and its employees or agents) has not acted
with due care and skill.
9.9 The Company advises all Buyers to arrange for
their own insurance cover for purchased Lots effective
from the fall of the Auctioneer's hammer to protect
their interests as the Company cannot warrant that the
Seller has insured its interests in the Lots or that the
Company's insurance cover will extend to all risks.
9.10 Where the Company has exercised due care
and skill, the Company:
(a) does not accept responsibility for Lots damaged
by insect infestation or by changes in atmospheric
conditions; and
(b) shall not be liable for such damage nor for any
other damage to glass or to picture frames.
10. Payment to Seller
10.1 The Company is only liable to the Seller for
payment of the Sale Proceeds if the Purchase Price has
been received in cleared funds by the Company.
10.2 If the full Purchase Price has been received in
cleared funds by the Company within 21 days of the
date of the Sale, the Company shall pay the Sale
Proceeds to the Seller not later than 35 days after
the date of the Sale. Unless an alternative method of
payment shall have been agreed in writing with the
Seller, payment shall be made by sending to the Seller
a cheque by post at the Seller's risk.
10.3 If the Purchase Price has not been received in
full by the Company within 21 days of the date of the
Sale, the Company shall pay the Sale Proceeds within 6
business days after the date on which the full Purchase
Price is received in cleared funds from the Buyer.
10.4 If the Buyer fails to pay the Purchase Price within
21 days after the date of the Sale then the Company will
give notice of this to the Seller. If the Seller does not
give written instructions to the Company in response to
this notice within 7 days then the Company may do any
of the following for and on behalf of the Seller (who will
give the Company any assistance it may require):
(a) agree terms for the payment of the Purchase Price
with the Buyer;
(b) remove, store and further insure the Lot sold;
(c) settle any Claim by or against the Buyer;
(d) take such steps as the Company shall at its absolute
discretion consider necessary to collect the monies due
from the Buyer;
(e) rescind the Sale and refund any monies to the
Buyer;
(f) offer the Lot for resale by private treaty or auction
on the same terms as appear in the Consignment
Agreement Form;
(g) appoint a solicitor or other agent to do any of the
above.
10.5 Any monies recovered by and paid to the
Company by the Buyer shall be applied in the following
order (in each case together with interest) to the
payment of:
(a) any legal or other costs incurred by the Company;
(b) the Expenses;
(c) the Premium;
(d) the Seller's Commission; and
any balance remaining shall be paid by the Company to
the Seller (or, if appropriate, the Buyer).
10.6 In the event that there is a shortfall, any such
shortfall shall be made good by the Seller to the
Company on demand.
10.7 If, within 7 days of receipt of the notice referred
to in clause 10.4, the Seller informs the Company that
the Seller wishes to take delivery of the Lot, the Seller
shall be entitled to do so but only upon prior payment
of the Offer Fee and any legal and other costs incurred
by the Company so as to provide the Company with a
full indemnity in respect of those costs.
10.8 If the Company rescinds a Sale because the Lot
is proved to its reasonable satisfaction to be a Forgery
(see clause 15.5) and the Company has accounted
to the Seller for the Sale Proceeds, the Seller must
immediately refund the Sale Proceeds to the Company,
which will then refund the Purchase Price to the Buyer
and make the Lot available to the Seller for collection.
11. Withdrawal fees
11.1 A Seller may only withdraw a Lot from sale by
written notice signed by the Seller.
11.2 If a Seller withdraws a Lot from sale either at
any time after 30 days have elapsed after signing the
Consignment Agreement Form or after the Company
has photographed the Lot and/or allocated a Lot
Number to the Lot (whichever is the earlier) but before
the Lot has been advertised and/or catalogued for
auction, the Seller shall pay to the Company the
Expenses plus a withdrawal fee equal to 15% plus GST
of the higher of:
(a) the average of the Estimated Selling Range high
and low estimates; and
(b) the Agreed Reserve.
11.3 If a Seller withdraws a Lot from sale after the
Company has advertised and/or catalogued the Lot for
auction but before the Lot has been put on view, the
Seller shall pay to the Company the Expenses plus a
withdrawal fee equal to 25% plus GST of the higher of:
(a) the average of the Estimated Selling Range high
and low estimates; and
(b) the Agreed Reserve.
11.4 If a Seller withdraws a Lot from sale after the
Lot has been put on view at the sale venue or in the
Company's premises up to and including 28 days
after the Sale, the Seller shall pay to the Company the
Expenses plus a withdrawal fee equal to 30% plus GST
of the higher of:
(a) the average of the Estimated Selling Range high
and low estimates; and
(b) the Agreed Reserve.
11.5 If a Seller purports to change the Agreed
Reserve at any time without the consent of the
Company, the Seller shall be deemed to have
withdrawn the Lot from sale.
11.6 If the Company or the Seller is restrained by
order of any Court or other competent authority from
selling a Lot or if the Company has reasonable cause
for believing that either:
(a) the Company or the Seller is so restrained or
otherwise not legally entitled to sell the Lot;
(b) the Seller is in breach of any one or more of the
warranties of the Seller, or
(c) the description of the Lot given to the Company
by the Seller is inaccurate or misleading in any material
respect,
then the Company may by notice in writing to the
Seller decline to sell the Lot in question and the Seller
shall be deemed to have withdrawn the Lot from sale.
11.7 If a Lot is withdrawn from sale or deemed to
have been withdrawn then the Seller shall arrange for
collection and removal of the Lot at Seller's expense
within 2 business days after the date of withdrawal
provided that the Seller has paid the Expenses and the
applicable withdrawal fee.
11.8 If the Company incurs any legal and other costs
investigating or defending any Claims concerning the
ownership of a Lot, the accuracy of the description of
the Lot contained in the Catalogue or the warranties of
the Seller, the Seller shall indemnify the Company for
all such costs.
11.9 The Company is authorised by the Seller to
apply any money held by the Company on behalf of the
Seller to the payment or reimbursement of any amount
payable by the Seller to the Company including the
Expenses and the withdrawal fees.
11.10 The Company may claim a lien on any goods
held by the Company for the Seller until all money
payable to the Company by the Seller has been paid
and, if it is not paid within 28 days, may exercise a
power of sale over those goods.
12. Photography and illustration
12.1 The Company shall have the right to
photograph and make illustrations of any Lot and to use
at its discretion in the normal course of business such
photographs and illustrations, and any photograph or
illustration of a Lot owned and supplied by the Seller,
whether or not in conjunction with the Sale.
12.2 Where the Seller agrees to the cost of such
photographs and illustrations being incurred (and
the amount to be incurred), the Seller is liable for the
payment of that cost.
12.3 The copyright of all photographs taken and
illustrations made of any Lot by and on behalf of
the Company shall be the absolute property of the
Company.
13. Unsold Lots
13.1 The Seller must request from the Company
confirmation as to whether or not a Lot has been sold
at the Sale. If a Lot is unsold the Seller shall advise
the Company that the Seller wishes to collect the Lot
and shall arrange for its removal from the premises of
the Company or the Sale premises. The Seller must
pay to the Company the Offer Fee and all Expenses,
and the estimated cost of delivery of the Lot if the
Company agrees to arrange redelivery to the Seller
before removal of an unsold Lot.
13.2 If a Lot is unsold at the Sale, the Company is
authorised by the Seller as the Seller's sole agent to sell
the Lot by private treaty or by auction for a price that is
not less than the Agreed Reserve at any time within 28
days after the Sale, provided that:
(a) if the highest offer for an unsold Lot is referred to
the Seller then the Seller may accept that offer; and
(b) if the maker of the offer wishes to withdraw the
offer then they must do so in writing prior to the
communication to them by the Company of the Seller's
acceptance of the offer.
13.3 If the Seller sells a Lot that was unsold at the
Sale:
(a) within 90 days after the Sale to a person who was
registered to bid at the Sale; or
(b) within 28 days after the Sale to any person,
the Seller must notify the Company in writing of the
terms of the Seller's Sale within 7 days and pay the
Seller's Commission, the Offer Fee and the Premium
to the Company within 7 days after the Seller's Sale as
though the Company had sold the Lot on behalf of the
Seller.
13.4 If an unsold Lot is not collected by the Seller or
sold by the Company within 28 days after the Sale and
after the Company has given to the Seller 7 days' notice
to arrange for its collection, then the Seller authorises
the Company to dispose of the unsold Lot by public
auction without reserve and to deduct from the Sale
receipts all monies owing by the Seller to the Company.
14. The Buyer
14.1 The Auctioneer may knock down a Lot to the
person who, at his or her absolute discretion, he or
she believes is the highest bidder acceptable to the
Company, subject to any Agreed Reserve. Any dispute
may be determined by the Auctioneer at his or her
absolute discretion and the decision of the Auctioneer
shall be final.
14.2 Every bidder shall be deemed to act as principal
unless prior to the commencement of the Sale there is
a written acceptance by the Company that the bidder
is acting on behalf of a third party and that the bidder is
not personally liable.
14.3 No person shall be entitled to bid at a Sale
without first having completed and delivered to the
Company a bidder registration form acceptable to
the Company and the registration form will include an
acknowledgement by a bidder that they are bound by
these Conditions.
The Company is the agent of the Seller, not the
Buyer, and it is not intended that there be any legal
relationship between the Company and the Buyer.
15. Buyers to satisfy themselves
15.1 Lots are sold on an 'as is' basis and it is the
responsibility of prospective Buyers to examine a Lot
prior to the Sale and to satisfy themselves as to the
condition of the Lot and that the Lot matches any
written or oral description provided by the Seller or the
Company.
15.2 All descriptions provided by the Seller or
the Company are subject to any statements made
by the Auctioneer from the rostrum prior to any bid
being accepted for the Lot and any illustrations in the
Catalogue are solely for the guidance of prospective
Buyers and should not be relied upon in terms of tone
or colour or necessarily to reveal imperfections in any
Lot.
15.3 In bidding for any Lot, prospective Buyers agree
that they have not been induced to make any bid by
any representation, to the extent the representation
is not misleading or deceptive, in respect of the Lot
by the Company, including any representation arising
from a document that has been provided by the Seller
to the Company in association with the Sale of a Lot
and made available by the Company for inspection
by prospective Buyers. If prospective Buyers wish to
rely on any representation made by or on behalf of the
Company, they must advise the Company in writing of
this prior to the Sale.
15.4 If the Company is found to be liable for any
loss or damage suffered, other than in circumstances
where the loss or damage suffered is as a result of the
Company (and its employees or agents) not acting with
due care and skill or the Company (and its employees or
agents) engaging in misleading or deceptive conduct,
(a) the maximum liability of the Company to a Buyer
shall be the Sale Price of the relevant Lot and the
Premium (if paid by the Buyer); or
(b) the maximum liability of the Company to a Seller
shall be the Sale Proceeds of the relevant Lot,
and the Company shall not be liable for any
consequential or indirect loss whatsoever.
15.5 If a Lot is proved to the reasonable satisfaction
of the Company to be a Forgery then the Company
may rescind the Sale as agent of the Seller in which
case the Seller shall refund the Sale Proceeds to the
Company, which will refund the Purchase Price to the
Buyer and make the Lot available to the Seller for
collection provided that:
(a) the Buyer provides written notice to the Company
within 14 days of the auction date of the Forgery
allegations;
(b) the Buyer produces evidence from two
independent experts who both agree that the Lot is a
Forgery, however, the Company reserves the right to
request further expert evidence if, in its sole discretion,
it is not satisfied with the findings by the experts;
(c) the Buyer returns the Lot to the Company in the
same condition as it was at the date of the Sale;
(d) the Buyer warrants that it has not sold or transferred
the Lot nor created any rights in respect thereof in
favour of any third party;
(e) the Seller has refunded the Sale Proceeds to the
Company.
15.6 The benefits of this clause are for the Buyer only
and cannot be assigned.
15.7 Despite clause 15.5 the Company has no
obligation to rescind the Sale and the Buyer shall not
be entitled to rescind the Sale if in the opinion of the
Company:
(a) the description of the Lot in the Catalogue was
accurate at the time of its publication based on the
opinion of an expert in the relevant area of expertise at
that time; or
(b) the only method of establishing at the time of
publication of the Catalogue that the Lot was a Forgery
would have been a scientific process not then in
general usage, or which would have been too costly or
impractical or would have been likely to cause damage
to the Lot.
15.8 If the conditions of clause 15.5 are satisfied
and clause 15.7 does not apply, the maximum liability
of the Company to a Buyer shall be the Sale Price of
the relevant Lot and the Premium (if paid by the Buyer)
but shall not include a refund of storage charges,
insurance, interest and the like, or any consequential or
indirect loss or damage suffered or expense incurred by
the Buyer.
16. Premium
Unless otherwise stated in the Catalogue, the Buyer
shall pay the Company the Premium. The Buyer
acknowledges that the Company may also receive a
Seller's Commission.
17. Contract of sale
17.1 Subject to the Company's discretion, on the
acceptance of a bid by the fall of the Auctioneer's
hammer a contract of sale is made between the Seller
and the Buyer. The Company is not a party to the
contract of sale and shall not be liable for any breach of
that contract by either the Seller or the Buyer.
17.2 Risk of the Lot will pass to the Buyer on the fall
of the Auctioneer's hammer.
17.3 Title to the Lot will pass to the Buyer when the
full Purchase Price has been received by the Company
by way of cleared funds.
18. Payment by Buyer
18.1 At the same time that a prospective Buyer
registers to bid he or she must give the Company
his or her name and address and, if requested by the
Company, banking or other suitable references or
identification and an acknowledgement that they have
read and agreed to be bound by these Conditions.
18.2 The Purchase Price must be paid to the
Company not later than 4.00pm on the second day
after the Sale unless otherwise stated in the Catalogue.
18.3 On the fall of the Auctioneer's hammer, the
successful bidder on any V Lot, and other Lots as
determined by the Company at its absolute discretion,
may be required to provide a deposit equal to 15% of
the Hammer Price, either in cash, approved credit card
or approved bank cheque. If the successful bidder
does not do so then the Company may rescind the Sale
and resubmit the Lot for a Second Auction.
18.4 Absentee or telephone bidders who are
unable to attend a Sale and who wish to bid on any
V Lot and other Lots as determined by the Company
at its absolute discretion may be required to provide a
deposit equal to 15% of the low end of the Estimated
Selling Range (but no less than $500), either in cash,
approved credit card or approved bank cheque prior to
the Sale. In the event that such absentee or telephone
bidders are unsuccessful then the Company will refund
any deposits received within 5 working days from day of
the Sale.
18.5 Full payment for all Lots must be made to
the Company by cash, electronic funds transfer or
approved credit card. Where the Buyer wishes to pay
by bank cheque, personal or company cheque, and the
Company has agreed that the Buyer may do so, a V Lot
will not be released until the cheque has cleared and
other Lots may not be released until the cheque has
been cleared.
18.6 No Lot may be collected until the full Purchase
Price has been received by the Company unless prior
arrangements in writing have been made with the
Company before the date of the Sale, provided always
that ownership of the Lot will not pass to the Buyer until
cleared funds in payment of the full Purchase Price have
been received by the Company.
19. Collection of Purchases
All Lots must be paid for and collected by the second
day after the Sale unless otherwise stated in the
Catalogue. The Buyer shall be responsible for any
removal, storage, or other charges for any Lot after this
day.
20. Responsibility for Lots purchased
20.1 The Buyer shall be responsible for any loss or
damage to, or caused by, a Lot purchased by the Buyer
from the fall of the Auctioneer's hammer and neither
the Company nor its employees or agents shall be
responsible for any Claim while the Lot is in its power,
possession or custody, except where the Company
(and its employees or agents) has not acted with due
care and skill.
20.2 Unless expressly stated in a Catalogue, the
Company has no knowledge of whether a V Lot
complies with the provisions of any road traffic or
maritime Acts and Regulations. The Buyer of a V Lot
who intends to use it on a public road or waterway
shall be responsible for ensuring that it complies with
the provisions of any road traffic or maritime Acts and
Regulations.
20.3 The Buyer shall be solely responsible for
obtaining any export licence that may be required in
connection with a purchased Lot.
20.4 The Buyer of a firearm must obtain any
certificates and licences required by law. The Company
may refuse delivery of a Lot to a Buyer without evidence
of compliance by the Buyer.
21. Non-payment or failure to collect
21.1 If the Purchase Price in respect of a Lot is not paid
for in full in accordance with clause 18, the Company
may, after a period of two weeks (during which time the
Company will attempt to contact the Buyer), and in its
absolute discretion and without prejudice to any other
rights or remedies it may have, exercise one or more of
the following remedies:
(a) re-sell the Lot without reserve by auction, private
treaty or any other means provided that 2 days prior
notice is given to the Buyer who agrees not to challenge
the resale price achieved in respect of the Lot;
(b) remove, store and further insure the Lot at the
expense of the Buyer;
(c) charge interest on the Purchase Price at the rate
of l.65% per month or part thereof from the date upon
which the Purchase Price becomes payable until the
full Purchase Price has been received by the Company
from a resale;
(d) retain any Lot sold to the Buyer at the same or any
other auction until payment of the Purchase Price by
the Buyer;
(e) apply the proceeds of the Sale of any Lot then due
or at any time thereafter becoming due to the Buyer in
payment or part payment of the Purchase Price;
(f) exercise a lien on or exercise a power of sale
over any other property of the Buyer in the power,
possession or control of the Company;
(g) rescind the Sale of that Lot or any other Lot sold by
the Seller to the Buyer at the same or any other auction
sale;
(h) repossess any goods comprising any Lot in respect
of which payment is overdue and thereafter resell the
same, and for this purpose the Buyer hereby grants an
irrevocable licence to the Company to enter upon all
or any of the Buyer's premises (with or without vehicles)
during normal business hours, without prejudice to any
other rights of the Company;
(i) issue legal proceedings against the Buyer;
(ii) reject a bid from the Buyer at any future auction
sale or require the Buyer to pay a deposit before any
bid is accepted by the Company at any future Sale.
21.2 If the Lot is not collected in accordance with
clause 19, the Company may, after a period of two
weeks (during which time the Company will attempt to
contact the Buyer), and in its absolute discretion and
without prejudice to any other rights or remedies it may
have, exercise one or more of the following remedies:
(a) remove, store and further insure the Lot at the
expense of the Buyer;
(b) rescind the Sale of that Lot or any other Lot sold by
the Seller to the Buyer at the same or any other auction
sale.
21.3 The Buyer shall pay all reasonable legal and
other costs reasonably incurred by the Company or
the Seller (whether or not Court proceedings shall have
been issued) as a result of the Buyer's non-payment for
and/or failure to collect a Lot, on a full indemnity basis,
together with interest thereon at the rate specified in
clause 21.1(c) from the date upon which the Buyer shall
have become liable to pay costs.
22. Absentee or commission bids
22.1 An absentee bidder may make an absentee
bid in the form of written instructions directing the
Company to bid on one or more Lots up to a maximum
amount specified for each Lot. The Company will
execute the absentee bid at the lowest possible price
taking into account the Agreed Reserve and other bids.
There is no charge for this service. If identical bids
are left by two or more parties, the first bid received
by the Company will take preference. The Auctioneer
may execute bids for absentee bidders directly from
the rostrum, clearly identifying these as absentee or
commission bids.
22.2 The Company is prepared to execute telephone
bids on behalf of prospective Buyers who are not at the
auction on the condition that the prospective Buyer
acknowledges that taking instructions by telephone
in the course of an auction has inherent risks (such
as miscommunication, misunderstanding or other
problems caused by a telecommunications fault or
failure including a mobile telephone connection falling
out). The Company reserves the right to charge for this
service.
22.3 The Company shall not be responsible for any
errors or omissions in connection with the execution of
absentee or telephone bids.
23. GST
23.1 Interpretation
Words or expressions used in this clause 23 that are
defined in A New Tax System (Goods and Services Tax)
Act 1999 have the same meaning.
23.2 GST and amounts payable to the Company:
(a) All amounts owing by the Seller to the Company
(including, without limitation, the Seller's Commission,
the Offer Fee, the Insurance Fee, and Expenses) under
this agreement do not include GST. If and to the extent
that any amount owing by the Seller to the Company is
consideration for a taxable supply by the Company, the
amount shall be increased by an amount equal to the
GST payable by the Company on that supply.
(b) All amounts payable by the Buyer to the Company
under this agreement (including, without limitation, the
Premium) do not include GST. If and to the extent that
any amount payable by the Buyer to the Company is
consideration for a taxable supply by the Company, the
Buyer must pay to the Company, an additional amount
equal to the GST payable on the supply.
23.3 GST and amounts payable to the Seller
(a) The Seller must, on or before the date of the Sale,
notify the Company whether it is registered for GST,
and if so, must provide its ABN to the Seller at the same
time.
(b) If the Seller notifies the Company that it is
registered for GST in accordance with clause 23.3(a):
(i) the Seller authorises the Company as its agent, to
issue a tax invoice to the Buyer in respect of the Sale of
any Lot which is a taxable supply; and
(ii) on payment of the Sale Proceeds to the Seller in
accordance with clause 10, the Company will:
(A) notify the Seller of the amount of GST included
in the Sale Price for the Lot to enable the Seller to
determine its GST liability on the Sale; and
(B) give the Seller a tax invoice for any taxable
supply made by the Company to the Seller under this
agreement (including, without limitation, any supply
for which the Seller's Commission, the Offer Fee,
the Insurance Fee, and Expenses are consideration)
including any amounts payable on account of GST in
accordance with clause 23.2(a).
23.4 GST on sale of Lot to Buyer
(a) The Sale Price is inclusive of GST (if any) and shall
not be increased any further for any GST payable by the
Seller in respect of the Sale.
(b) If the Seller has informed the Company that it is
registered for GST in accordance with clause 23.3(a),
the Company will, upon request by the Buyer or
otherwise at its discretion, issue a tax invoice to the
Buyer showing:
(i) the amount of GST included in the Sale Price; and
(ii) any amounts payable by the Buyer to the Company
in consideration for any taxable supply made by the
Company to the Buyer under this agreement and any
GST payable on the supply in accordance with clause
23.2(b).
(c) If the Seller does not inform the Company that it
is registered for GST in accordance with clause 23.3(a),
the Sale will be presumed not to be a taxable supply,
and the Company will only issue a tax invoice for any
taxable supply made by the Company to the Buyer
under this agreement (including, without limitation, any
taxable supply for which the Premium is consideration
and any amounts payable on account of GST payable
on that supply in accordance with clause 23.2(b)).
(d) A Buyer of a Lot sold by a GST registered Seller
that is subsequently exported from Australia may be
able to claim a refund from the Company for any GST
included in the Sale Price of a Lot if, within 60 days of
the Sale, the Buyer provides the Company with:
(i) all relevant shipping documents confirming that
the goods have been exported from Australia; and
(ii) evidence to the reasonable satisfaction of the
Company that the Buyer is not registered or required
to be registered for GST in Australia.
However, the Company need not refund any GST
amount to the Buyer under this clause, unless and until
it receives a refund of this amount from the Seller.
23.5 Obligations of non-resident Sellers
(a) This clause 23.5 only applies to Sellers that are nonresidents
of Australia.
(b) The Seller must, on or before any Lot is imported
into Australia for Sale, notify the Company as to:
(i) whether the Seller will be selling the Lot in the
course of carrying on an enterprise; and
(ii) whether the Seller is registered for GST in Australia.
(c) The Seller acknowledges and agrees that the
Company has the right to deduct and retain from the
Sale Proceeds, an amount equal to any GST for which
the Company is or becomes liable to pay in respect
of the importation or Sale of a Lot, including, without
limitation, any GST payable pursuant to Division 57 of
the GST Act.
23.6 Reimbursements (net down)
If a payment to a party under this agreement is a
reimbursement or indemnification, calculated by
reference to a loss, cost or expense incurred by that
party, then the payment will be reduced by the amount
of any input tax credit to which that party is entitled on
the acquisition of the taxable supply to which that loss,
cost or expense relates.
24. Currency converter
The Company may provide a currency converter
for the convenience of bidders. The rates quoted
for conversion of other currencies to Dollars (or the
currency in which the relevant Sale is conducted) are
indicative only and neither the Company nor its agents
shall be responsible for any errors or omissions in the
converter.
25. Governing Law and Jurisdiction
25.1 These Conditions are governed by and shall be
construed in accordance with the law of the State in
which the Sale is conducted ('Sale State').
25.2 The Company, the Seller, the Buyer and any
bidders at the Sale irrevocably and unconditionally
submit to the exclusive jurisdiction of the courts of the
Sale State.
26. Notices
26.1 A notice, demand, consent or approval or
communication under these Conditions ('Notice') must
be:
(a) in writing, in English, and signed by a person duly
authorised by the sender; and
(b) delivered by hand or sent by prepaid post, and by
airmail when sent to a destination outside Australia, or
facsimile or email to the recipient's address as varied by
any Notice given by the recipient to the sender.
26.2 A Notice given in accordance with clause 26.1
takes effect when it is taken to have been received (or at
a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by facsimile, on receipt by the sender
of the transmission report at the conclusion of the
transmission;
(c) if sent by mail, two days after the date of posting
if posted to an address within the country of posting
and seven days after the date of posting if posted to a
country outside Australia; and
(d) if sent by email, at the time of transmission unless
the sender is notified that the email was undeliverable.
26.3 In proving service by delivery:
(a) by hand, it shall be necessary only to produce a
receipt for the communication signed by or on behalf
of the recipient;
(b) by facsimile, it shall be necessary only to produce
the confirmatory transmission report;
(c) by post, it shall be necessary only to prove that the
communication was contained in a pre-paid envelope
which was duly addressed, posted and, in the case
of the Notice being sent to a destination outside
Australia, was sent by airmail; and
(d) by email, it shall be necessary only to prove that the
communication was sent to the correct email address.
27. General provisions
27.1 The non-exercise of or delay in exercising any
power or right of a party does not operate as a waiver
of that power or right, nor does any single exercise of a
power or right preclude any other or further exercise of
it or the exercise of any other power or right. A power
or right may only be waived in writing, signed by the
party to be bound by the waiver.
27.2 These Conditions constitute the entire
agreement of the parties on the subject matter.
All representations, communications and prior
agreements, to the extent they are not misleading or
deceptive, in relation to the subject matter are merged
in and superseded by these Conditions.
27.3 The parties agree that, if the whole or any
part of any one or more provisions is judged invalid
or unenforceable, that portion will be deemed to be
deleted and will not affect the validity or enforceability
of the remaining provisions.
27.4 Neither party shall be liable for any loss or
damage or be deemed to be in breach of these
Conditions if its failure to perform or failure to cure
any of its respective obligations hereunder results
from any event or circumstance beyond its reasonable
control. The party interfered with shall give the
other party prompt written notice of any such force
majeure condition. If notice is provided, the time for
performance or cure shall be extended for a period
equal to the duration of the force majeure event or
circumstance described in such notice, except that any
such cause shall not excuse the payment of any sums
owed to the Company prior to, during, or after any such
force majeure condition.
28. Privacy Statement
In our dealings with vendors and buyers it is necessary
to collect personal information such as:
(a) Your Name;
(b) Your Company name and ABN;
(c) Your residential address;
(d) Your business address;
(e) Your email address;
(f) Your facsimile number;
(g) Your telephone numbers;
(h) Your Drivers Licence details;
(i) Your credit card details; and
(j) Your bank account details.
When you provide us with your personal information,
we rely on the accuracy of that information. To assist
with the accuracy please contact us immediately if any
of the details provided have changed. We will only use
your personal information for the purpose for which
you have provided it unless you otherwise consent.
We will not disclose your personal information to third
parties unless you consent or where such disclosure is
required or authorised by law.
We will at your request provide access to the
information we hold about you for the purpose of
correcting or updating that information. We will store
your information in a manner that ensures security
against unauthorised access, alteration or deletion at a
level commensurate with its sensitivity.
29. Resale Royalty
The Seller:
(a) acknowledges that he or she understands his
or her legal obligations under the Resale Royalty for
Visual Artists Act 2009 (the Act);
(b) undertakes to comply with all requirements of the
Act, including by providing its agent, the company,
with accurate information sufficient for compliance
with sections 28 and 29 of the Act;
(c) undertakes to indemnify the company for any
loss incurred by the company as a result of the
Seller's failure to comply with any of the Seller's legal
obligations under the Act; and
(d) acknowledges that if he or she fails to comply
with any of his or her legal obligations under the
Act, the company may provide the Seller's name and
contact details to Copyright Agency Limited (CAL).
