TERMS AND CONDITIONS OF SELLING AT AUCTION WITH RAFFAN KELAHER & THOMAS PTY LTD (AGENCY AGREEMENT)
In this Agency Agreement the following words and expressions shall have the following meanings:
Agency Agreement: The schedule appearing on the reverse side hereof under the heading ‘Agency Agreement’.
Auctioneer: Raffan Kelaher & Thomas Pty Ltd, its servants and agents. Except that where the context so permits, it shall include the person actually conducting the auction sale on behalf of Raffan Kelaher & Thomas Pty Ltd.
Expenses and Charges: All expenses arising under the matters outlined in Paragraph 9 herein, including expenses incurred by the Auctioneer in relation to any sale or proposed sale of the goods, or any special instructions given to, or additional services rendered by the Auctioneer, including any handling or storage charges, and the cost of engaging experts or specialists or using specialised equipment.
Hammer Price: The price in Australian Dollars at which the lot is knocked down (sold) by the Auctioneer to the Buyer.
Purchase Price: The aggregate of the Hammer Price, the Buyer’s Premium, and any additional charges and expenses due from the Buyer.
Reserve Price: The minimum Hammer Price agreed between Raffan Kelaher & Thomas Pty Ltd and the Vendor at which a Lot may be sold.
Buyer’s Premium: The premium payable to Raffan Kelaher & Thomas Pty Ltd by the Buyer based on a percentage (inclusive of GST) of the Hammer Price as published.
Lot: Any item or items consigned with a view to its or their sale by auction. The definition also refers ‘Goods’ as identified overleaf under ‘Description of Goods’.
Vendor: Includes each and every one of the owners of a Lot and the person or company instructing the Auctioneer to offer that Lot for sale, and where more than one, jointly and severally.
Sale Proceeds: The net amount due to the Seller being the Hammer Price less the Commission, Expenses and Charges and any other amount due to Raffan Kelaher & Thomas Pty Ltd by the Vendor in whatever capacity and howsoever arising.
Settlement: The date thirty (30) days after the later of the following events:
- i) the sale of the goods whether by auction or private treaty and
- ii) the holding of the auction at which the goods are first offered for sale.
This Agreement shall commence upon the date hereof, and continue, unless terminated earlier in accordance with the provisions hereof, until settlement.
- Auctioneer’s Authority
Unless limitations are specified in the Agency Agreement, the Vendor hereby unconditionally authorizes the Auctioneer to:
- sell the goods for the highest price offered, not being less than the Reserve Price, if any, at the first appropriate auction following the date hereof, or by private treaty;
- receive the proceeds of sale for the goods, give a receipt for those proceeds and place those proceeds in a properly designated Trust Account;
- apply the proceeds of sale in payment of the commission, expenses and charges outstanding, and any other indebtedness due to Auctioneer by the Vendor from time to time;
- sign such documents as the Auctioneer may deem appropriate for and on behalf of the Vendor for the purposes hereof,
AND the Vendor hereby appoints the Auctioneer solely and exclusively to offer the goods for sale as aforesaid for the duration of the Agreement.
- Warranty by Vendor
The Vendor hereby warrants that:
- the goods are his absolute and unencumbered property;
- any and all information supplied, or to be supplied by the Vendor in relation to the goods, is true and correct in all respects, and may be used by the Auctioneer without further enquiry, in any and all advertising and promotions relating to the sale of the goods;
- the Vendor has notified the Auctioneer in writing of any material alterations to the Goods of which the Vendor is aware, and of any concerns expressed by third parties in relation to the authenticity, provenance, origin, age, condition or quality of the Goods, and has provided the Auctioneer with all information in the Vendor’s possession as to the identification of the Goods:
- the Vendor shall indemnify the Auctioneer and the Buyer against all claims or proceedings arising from the Vendor’s actual or alleged breach of any warranty set out in conditions 4a, 4b and 4c or any other obligation of the Vendor under these Conditions and shall reimburse the Auctioneer and/or the Buyer (as the case may be) on demand for all loss, costs (on a full indemnity basis) expense or damage resulting there-from.
- Payment of Sale Proceeds
The Auctioneer shall account to the Vendor for the receipted proceeds of sale of the goods less all amounts due to the Auctioneer on or before the settlement date, except that:
in the event that a Buyer fails to pay the purchase price to the Auctioneer within a month of the date of the sale, the Auctioneer shall notify the Vendor who may instruct the Auctioneer as to the appropriate course of action. If, in the opinion of the Auctioneer, such action is practicable, the Auctioneer may assist the Vendor to recover the purchase price at the Vendor’s expense, but Raffan, Kelaher & Thomas Pty Ltd shall be under no obligation to institute proceedings under its own name. The Vendor shall indemnify the Auctioneer, its employees and agents against all claims made or proceedings brought including any costs whatsoever incurred by the Auctioneer.
- Reserve Price
All goods are received by Raffan, Kelaher & Thomas Pty Ltd for sale without reserve, to be sold at the Auctioneer’s discretion.
Lots may be auctioned subject to a Reserve Price as agreed in writing between Raffan, Kelaher & Thomas Pty Ltd and the Vendor, and once a Reserve Price has been agreed, it may be changed only with the consent of Raffan, Kelaher & Thomas Pty Ltd.
Neither the Vendor nor any person on the Vendor’s behalf may bid on the Vendor’s own property. If any such bid is nonetheless made, then the Auctioneer may knock the Lot down to the Vendor without observing any Reserve Price and the Vendor shall pay to the Auctioneer the Buyer’s Premium in addition to any Vendor’s Commission and Expenses. The Auctioneer shall have the sole right to bid on behalf of the Vendor up to the Reserve Price.
If no Reserve Price has been placed on a Lot, the Auctioneer shall in no way be held liable should the Lot be sold for a price below the lower estimated selling price of the Lot given in any Catalogue in respect to the relevant sale.
- Withdrawal Fees
Where a Vendor withdraws his authority for the Auctioneer to sell a Lot after the date upon which the Auctioneer advertises or catalogues the Lot for auction, the Auctioneer shall be entitled to charge a fee equal to 16.5% (GST inclusive) of either:
The average of the Auctioneer’s high and low estimates of the sale price of the Lot or the Reserve Price, where a Reserve Price has been set, plus expenses.
In the event that the Vendor withdraws his authority for the Auctioneer to sell the Lot or if the Lot is withdrawn from Sale by the Auctioneer (who is authorised to do so) because the Vendor has increased the Reserve Price without the consent of the Auctioneer, the Vendor shall arrange for collection and removal of the Lot at his own expense within 3 business days after the date of withdrawal of authority. The Vendor may not collect such Lot or Lots unless any withdrawal fees or expenses and charges have been paid in full.
- Receipt of Boxed Goods
The Vendor acknowledges that items that have been delivered, packed by the Vendor or his agent/s, will be sold at the absolute discretion of the auctioneer, in single or multiple item lots. Individual items that are considered by the vendor to be of such value as to be worthy of sale as single items, should be brought to the auctioneer’s attention and listed separately on the Agency Agreement.
- Commission, Expenses & Charges, and Buyer’s Premium
The Vendor authorises the Auctioneer to deduct from the Hammer Price the Vendor’s Commission together with Expenses and Charges and acknowledges that the Auctioneer may retain any Buyer’s Premium payable by the Buyer.
Where a Vendor withdraws his authority for the Auctioneer to sell a Lot, the Auctioneer shall be entitled to charge a withdrawal fee in accordance with Condition 7 herein.
If any Lot fails to sell at Auction the Auctioneer shall be entitled to charge an offering fee calculated at 5.5% of the Reserve Price, or other fee as agreed between the Auctioneer and Vendor, together with the expenses and charges as specified in the Agency Agreement.
Good and Services Tax (GST) is applicable to all fees and charges incurred by the Auctioneer at the prescribed current rate. Unless specified otherwise, GST will be included in all fees and charges.
Where GST applies to the hammer price it will be included in this price and paid to the Vendor with the proceeds of sale. The Vendor acknowledges that it is the responsibility of the Vendor to remit the GST to the appropriate authority.
The Auctioneer shall be entitled but not obliged to:
- retain possession of the Goods until all amounts owing by the Vendor to the Auctioneer have been paid;
- deduct from the proceeds of any sale the sum of money equal to any unpaid commission, expenses and charges and any other indebtedness of the Vendor to the Auctioneer.
- Inspection of Goods
Prospective purchasers of the Goods shall be entitled to inspect the Goods prior to the Sale either by appointment or at the time and place advertised.
Subject to any special instructions contained in the Agency Agreement, the Auctioneer may advertise or promote the sale of the Goods in such manner as he at his absolute discretion shall determine.
The Vendor gives Raffan Kelaher & Thomas Pty Ltd full and absolute right to photograph and illustrate any Lot and to use such photographs and illustrations and any photographs and illustrations provided by the Vendor at any time at its absolute discretion whether or not in connection with the auction.
- Additional Services
Unless otherwise agreed and specified in the Agency Agreement, the Auctioneer shall not be obliged to undertake any services other than those stipulated.
- Insurance and Risk
The Auctioneer shall not be liable for loss or damage to the goods whilst in his possession, custody or control, irrespective of the cause thereof. Unless otherwise provided in the Agency Agreement the Auctioneer may, at the Vendor’s expense, insure the Goods against such perils and for such amounts as the Auctioneer at his absolute discretion may determine. No determination as to value for insurance purposes shall constitute a representation, warranty or admission by the Auctioneer as to the value or likely selling price of the Goods.
The Vendor shall hold the Auctioneer saved, harmless and indemnified from and against any and all claims, demands, damages, writs, suits, proceedings, orders, decrees, costs, losses or expenses of any nature whatsoever which the Auctioneer may suffer or incur in connection with or in any way arising out of a breach of any one or more of the provisions hereof by the Vendor, or any alleged breach by the Auctioneer or any obligation or duty to any third party in relation to the sale of the Goods.
At any time prior to the sale of any Goods, the Auctioneer shall be entitled to require that the authenticity thereof be verified and certified in writing, at the expense of the Vendor by a suitably qualified expert to be nominated by the Auctioneer. Pending such verification the Auctioneer shall not be obliged to offer any such Goods for sale.
Should a Buyer at any time prior to taking delivery thereof and effecting payment therefor;
wish to verify the authenticity thereof by reference to any third party, the Auctioneer at his sole and absolute discretion and for such period and on such terms as the Auctioneer may determine, may afford the Buyer an opportunity so to do and permit the Buyer to delay payment of the purchase price;
produce to the Auctioneer any evidence which in the opinion of the Auctioneer casts any doubt on the authenticity of such Goods, the Auctioneer may rescind the sale and refund to the Buyer any monies held by the Auctioneer on account of the purchase price in which event, the Goods shall be deemed to have been passed in (not sold) and the Vendor shall have no claim of any nature whatsoever against the Auctioneer.
The Vendor acknowledges that, in the event that a dispute as to authenticity arises subsequent to the Auctioneer remitting sale proceeds to the Vendor, the Vendor shall hold the Auctioneer indemnified against any claim arising there-from. In such an event the Vendor acknowledges that the dispute shall be resolved directly between Vendor and Buyer.
- Goods Sold on Auctioneer’s Usual Terms
The Vendor hereby agrees that the Goods are to be sold and purchased under the Auctioneer’s usual Terms and Conditions from time to time and the Vendor shall be entitled to inspect such Terms and Conditions upon request.
The Auctioneer reserves the right, at the Vendor’s sole risk and expense, to store the Goods at a place other than the Auctioneer’s premises, as the Auctioneer at his absolute discretion may determine, both before and/or after they are offered for sale.
- Unsold Goods
In the event that the Goods are offered for sale but are not sold, or this Agency Agreement is terminated in accordance with the provisions hereof, then, subject to the provisions hereof, the Vendor shall collect the Goods from the Auctioneer, in the former case, on or before the settlement date or sooner if so required by the Auctioneer, and in the latter case, upon expiration of the notice of termination.
- Disposal Fee
Any goods received by Raffan, Kelaher & Thomas Pty Ltd., which have been offered for sale but not sold, and which are therefore considered to be of no commercial value, will be disposed of at the Auctioneer’s absolute discretion without notification to the Vendor. A disposal fee will be charged.
Either party may terminate the Agency Agreement upon fourteen (14) days’ notice in writing to the other provided that such termination shall be without prejudice to the rights and remedies of the parties otherwise having arisen under this Agreement.
- Composition of Agreement
It is agreed that this Agreement contains the whole of the contract between the parties and that there are no conditions, warranties or other terms affecting the agreement between the Auctioneer and Vendor.
- Variations to Agreement
This Agreement may only be varied, amended or added to in writing executed by the parties hereto in the manner that this Agreement is executed.
- Law and Jurisdiction
These Conditions shall be governed by and construed in accordance with the laws of the State of New South Wales and the Commonwealth of Australia as applicable, and all parties concerned hereby submit to the jurisdiction of the Courts.