KOOYONG FINE AUCTIONS TERMS OF USE AGREEMENT

These Terms and Conditions apply to all auctions and other sales and services provided by Kooyong Fine Auctions (the Company) and to any items held by the Company for any purpose. They include the contractual relations whereby the Company and the Seller contract with the Buyer and by bidding at Auction or buying at private sale you agree to be bound by these Terms and Conditions, as does the Seller. 

1. Definitions

In these Conditions the following words and expressions shall (unless the context otherwise requires) have the following meanings:

 

‘Auction’ means a public or private auction conducted by the Company online or otherwise at which a Lot is offered for sale.

‘Auctioneer’ means the person running the Auction for the Company.
‘Bidder Registration Form’ means a form provided by the Company for and completed by the prospective bidder for in person, online, telephone and absentee bidding.

‘Buyer’ means the person or entity to whom a Lot is sold by the Auctioneer at Auction on the fall of the hammer or who purchases a Lot by another process provided by the Company. 

‘Buyer’s Premium’ means a charge determined as a percentage of the Hammer price and payable by the Buyer to the Company.

‘Catalogue’ includes publications produced by the Company online or otherwise such as brochures, price lists, lot lists.

‘Charges’ means all charges and expenses incurred by the Company in respect of a Lot including photography, shipping and legal expenses, plus GST if applicable. These charges and expenses will be passed on to the Seller and/or Buyer by the Company plus 10%, or as otherwise agreed in writing.

‘Claims’ means all monies, expenses, debts, demands, causes of action, proceedings, mediations, arbitrations, claims, liabilities, losses, arising from these Conditions or their subject matter.

‘Company’ means Kooyong Fine Auctions Pty Ltd (ABN 90676521976) trading as Kooyong Fine Auctions.

‘Conditions’ means these terms and conditions.

‘Consignment Agreement Form’ means the form setting out the terms by which a Seller consigns a Lot for sale by the Company or the form used to register an item taken in by the Company for assessment or advice.

‘Dollars’ or ‘$’ refers to Australian currency and all estimates, reserves, bids, hammer price and premiums are in Australian dollars.

‘Expenses’ includes all fees, charges and expenses (previously defined) as advised by the Company to the Seller from time to time.
‘Forgery’ means an imitation item intended to deceive in terms of authorship, origin, or date that is clearly misrepresented in the Catalogue, but does not include changes made due to damage and/or restoration work on a Lot, where the identity of the Lot is not compromised and there is no 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 final price accepted by the Auctioneer when the lot is knocked down

‘Lot’ means any item or items consigned by a Seller for sale at auction or by other sale method offered by the Company

‘Lot Number’ means the number allocated to a Lot.

‘Photography Fee’ means the fee paid by the Seller for the Company photographing a Lot or an item as advised by the Company to the Seller.

‘Purchase Price’ means the Sale Price plus the Buyer’s Premium plus GST, if any.

‘Reserve’ means the undisclosed lowest amount at which a Lot may be sold as agreed with the Seller 

‘Sale’ means a sale of a Lot by either an Auction or private sale.

‘Sale Price’ means the Hammer Price if sold at Auction or the price accepted by the Buyer in a private sale, plus 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 

‘Seller’ means in relation to any Lot the person or other entity named as the Seller in the Consignment Agreement Form for a Lot.

‘Seller’s Commission’ means the amount payable by the Seller to the Company on the sale of a Lot as advised by the Company to the Seller on consignment.

‘Taxable Supply’ means as defined in the GST Act.

‘Tax Invoice’ means as defined in the GST Act.

 

2. The Company as Agent

2.1 The Company acts as agent of the Seller unless otherwise stated and the Buyer contracts with the Seller in relation to the sale of a Lot. The Company is not liable for any default by the Seller or the Buyer.

2.2 The Seller consigns a Lot in accordance with these Terms and Conditions and is taken to authorise the Company:

(a) to allow prospective Buyers to inspect the Lot prior to the Sale and in any manner in the sole discretion of the Company including allowing removal from a container or a setting for examination.

(b) to sell the Lot as agent and hold the Sale Proceeds on trust for distribution after charges are deducted;
(c) to do all that is required to transfer ownership of the Lot to the Buyer;

 

3. Sole Discretion of Auctioneer
3.1 The Auctioneer and/or the Company has the right at their sole discretion to refuse bids, divide or combine Lots and to withdraw Lots from sale.

3.2 The Auctioneer may rescind a Sale where there is a dispute and put any Lot up for re-Auction or second Auction or private sale or withdraw it.

3.3 The Auctioneer can refuse a person to be present at an Auction

4. Risk of Personal Loss or Injury
Persons who attend an Auction in person do so at their own risk and the Company shall not be liable for any injury, damage or loss sustained by any person while on Company Premises, barring acts of gross negligence.

 

5. Estimates and Descriptions

5.1 Where the Company or representative gives estimates for the value of an item, it is a statement of opinion and is not definitively representative of what the Lot will sell for, and estimates may be revised.

5.2 The Company will not be liable for any error, misstatement or omission in a description of a Lot in any Catalogue, online or otherwise, unless the Company has sought to deliberately mislead or deceive. If the Seller provides a description of their Lot, they accept that the Company can rely on the accuracy of that description.

 

6. Warranties of Seller
6.1 The Seller warrants to the Company and the Buyer that:

(a) the Seller owns the Lot or has legal authority to sell it and must provide proof of same to the satisfaction of the Company;
(b) the Lot is free from all encumbrances, whether registered or not and from third party claims including from relatives and associates;
(c) the Seller has complied with export or import requirements for the Lot and has notified the Company of any previous non-compliance by others of which the Seller has knowledge;
(d) the Seller has disclosed all information on the history and provenance of the Lot and what has been provided is authentic;

 

(e) the Seller has disclosed to the Company any material alterations to the Lot and any authenticity concerns expressed by third parties
(f) the Lot is fit for purpose and free from any defect not readily ascertainable on inspection; and

(g) the Lot and description comply with all warranties implied by Consumer Legislation.

 

6.3 The Seller agrees to indemnify and keep indemnified the Company against all claims arising out of or in connection with any information provided to the Company by the Seller and 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 Terms and Conditions.

 

6.4 The Buyer and Seller acknowledge that the Company may register a financing statement under the Personal Property Securities Act 2009 in respect of a security interest over a Lot or Lots on its own or the Seller’s behalf, if a Buyer has not paid the sale price before delivery. 

 

7. Commission and Expenses
7.1 The Seller agrees to pay the Seller’s Commission and Expenses set out in the Consignment Agreement Form and further acknowledges that the Company may deduct the Seller’s Commission and Expenses from the purchase price when part or all of it is received from the Buyer. If the Lot is not sold, then the Seller must pay these expenses within 5 days of the auction.

 

8. Reserves

8.1 All Lots will be offered for sale subject to their reserve unless no reserve is set.  A reserve can only be changed with the agreement of the Company. 

(a) only the Auctioneer may place a bid on behalf of the Seller and the Seller nor a person on their behalf may bid on the Lot.

(b) if the Auctioneer believes the Seller has done so, the Auctioneer may knock down the Lot to the Seller regardless of the Reserve and the Seller will be liable for the Seller’s Premium in addition to the Seller’s Commission and Expenses.

8.4 The Company may reject an unrealistic reserve on a Lot and may sell the Lot without a Reserve unless withdrawn.

8.5 If there is no Reserve on a Lot, the Company shall not be liable if the Sale Price is less than the low Estimate.

 

8.6 If a Lot with no Reserve is unsold after Auction, the Company reserves the right to dispose of it by appropriate means if the Seller does not collect the Lot within five (5) days of the initial Auction.

8.7 If a Lot with a Reserve is unsold at the initial Auction, and the Lot has not been collected by the Seller within five (5) days of the Auction, the Seller is taken to have authorised the Company to sell the Lot at a following Auction or by private sale for a price that is not less than 70% of the Reserve; and if still unsold then by private sale or further Auction with no Reserve. 

8.8 If a Lot remains unsold after the third attempt, the Company reserves the right to dispose of the Lot by disposing of it appropriately. If the Seller does not want a Lot disposed of in this manner, the Lot must be collected within one (1) day after the third attempt.

8.9 The Seller may withdraw a Lot after the Auction by collecting the Lot from the Premises but will be required to pay to the Company all Expenses owing, prior to collection.

8.10 The Company will not be liable to the Seller if the Lot is sold at less than the Reserve or is disposed of.

9. Risk

9.1 The Company indemnifies the Seller against any damage to the Lot which the Seller incurs whilst the Lot is in the custody of the Company to the extent of the Company’s insurer’s liability, provided the Company’s liability to the Seller at all times, subject to consumer legislation, is limited to:

(a) in the case of unsold Lots, the Reserve; or if no Reserve, the low end of the Estimate; or if no Reserve or Estimate, an amount determined by a loss assessment provided by the Company or by an independent loss assessor appointed by the Company;
(b) If the loss occurs after the Sale of the Lot but before payment from the Buyer as cleared funds, then the net amount due to the Seller.

 

9.2 Risk shall pass to the Buyer on the fall of the Auctioneer’s hammer whether before or after payment and neither the Company nor the Seller shall be liable for, and the Buyer indemnifies the Company against, any loss, damage or claims of any kind, except where the Company has been grossly negligent.

 

9.3 The Company recommends Buyers protect their interests and arrange insurance cover for purchased Lots from the fall of the Auctioneer’s hammer. 

 

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 and the Company will pay to the Seller the Sale Proceeds within twenty-eight (28) days (excluding public holidays) of the receipt of the Purchase Price.

10.2 The Company will pay the Sale Proceeds by electronic funds transfer direct to the Seller’s nominated account.  

10.3 If the Buyer fails to pay the Purchase Price within twenty-one (21) days after the date of the Sale then the Company will give notice of this to the Seller and the Seller may give written instructions on action within seven (7) days. If not, then the Company as the Seller’s agent may by itself or through a solicitor, take such steps as it considers necessary to collect the monies due from the Buyer which may include any of the following:

(a) agree to terms for payment of the Purchase Price with the Buyer.

(b) settle any Claim by or against the Buyer;
(c) rescind the Sale and offer the Lot for resale by private sale or Auction on the same terms originally submitted

 

10.4 Any monies recovered from the Buyer shall be applied in first to the payment of any legal or other costs incurred by the Company; then any Expenses, the Premium, the Seller’s Commission; and finally, the Seller should a balance remain.

 

10.5 Any shortfall shall be paid by the Seller to the Company on demand.

 

10.6 If the Seller wishes to collect the Lot they may do so after payment of any legal and other costs incurred by the Company.

11. Withdrawal of a Lot

 

11.1 A Seller may only withdraw a Lot in writing and if withdrawn from Sale the Seller shall pay the Company the costs and charges incurred to that date plus a withdrawal fee of 20% plus GST of the higher of the mid Estimate or the Reserve, whichever is higher. 

11.3 The Seller shall be deemed to have withdrawn the Lot from sale if the Seller breaches the warranties, is legally restrained from selling a Lot, or the description of the Lot given by the Seller is materially inaccurate or misleading and the Company withdraws the Lot from Sale.

 

12. Seller’s indemnity for costs

If the Company incurs any legal and/or other costs investigating or defending any Claims concerning the ownership of a Lot, the description in the Catalogue or the warranties of the Seller, the Seller shall indemnify the Company for all such costs.

13. Application of Sale Proceeds

13.1 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 as set out in this clause 13.

13.2 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 twenty-one (21) days, may exercise a power of sale over those goods.

14. Photography and illustration

14.1 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.

14.2 Where the Seller agrees to the cost of such photographs and illustrations being incurred the Seller is liable for the payment same.

 

14.3 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, subject to any underlying copyright owned by other parties.

15. The Buyer
15.1 A prospective Buyer must 

(a) be over eighteen (18) years of age and provide to the Company their full name, home address, email and mobile number, having registered in advance of the Auction by completing the Bidder Registration Form and acknowledge that they have read and agreed to be bound by these Terms and Conditions; and

(b) A prospective Buyer must provide any other information requested by the Company including but not limited to banking details, credit card details, suitable references or identification including photo identification.

15.2 No person may bid at an Auction without having provided to the Company a completed Bidder Registration Form acceptable to the Company.

15.3 Every bidder shall be deemed personally liable to pay the purchase price including Buyer’s Premium and charges unless prior to the Auction there is explicit agreement by the Company that the bidder is acting on behalf of an identified third party and that the bidder is not personally liable.

 

15.4 The Company is the agent of the Seller, and it is not intended that there be any legal relationship between the Company and the Buyer.

 

16. Buyers to Satisfy Themselves

 

16.1 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. Sale with all faults (AF) means sale as is and “AF” is used on occasion in the lot description to remind clients that the lot is sold on an ‘as is’ basis.

16.2 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.

 

16.3 In bidding for any Lot, prospective Buyers agree that they have not been induced to make any bid by any representation, 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.

16.4 The maximum liability of the Company to a Buyer shall at all times be limited to 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.

 

16.5 When selling jewellery lots the Company may provide descriptive information as to such matters as colour, clarity, size and weight of gemstones and precious metals in the Catalogue. The Buyer accepts that this information can only be approximate, due in part to the difficulty in obtaining this information where stones are in settings. The information may vary by up to 10%, however if there is a Laboratory certificate then the Buyer may rely on its accuracy.

16.6 Jewellery Lots offered by the Company may reference an independent valuation by a registered valuer.  The Company does not guarantee the accuracy of these opinions, and no sale will be rescinded due to the Buyer claiming a subsequent variation from the valuation. 

16.7 The Buyer is taken to accept the condition of the wristwatches and pocket watches in the condition they are in when offered for sale and the Company does not guarantee they are in working order.

16.8   No Buyer may request a certificate of authenticity from a maker or attempt to rescind a sale due to a maker’s refusal to issue such a certificate post sale. 

17. Forgery

17.1 If a Lot is accepted by the Company to be a Forgery, then the Sale may be rescinded at the request of the Buyer provided that the Buyer makes the claim within 14 days, has not transferred any rights or interest in the Lot to a Third Party and the Lot is in the same condition as it was at date of Sale.

In that event the Seller, if paid out, shall refund the Company, which in turn will refund the Buyer and the Seller may collect the Lot. 

17.2 The Company has no obligation to rescind the Sale and shall not do so where the Lot’s description was accurate when published or it would have been impractical, costly or may have damaged the Lot to make additional investigations. 

18. Premiums and Commissions

The Buyer agrees to pay the Company the Premium and accepts that the Seller is also required to pay the Company a Seller’s commission.

 

19. Contract of sale

19.1 Subject to the Auctioneer’s discretion, a contract of sale is made between the Seller and the Buyer upon the fall of the Auctioneer’s hammer, indicating acceptance of the highest bid.  Any dispute shall be settled by the Auctioneer in their absolute discretion and the decision of the Auctioneer shall be final.

 

19.2 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.

19.3 Risk passes to the Buyer on the fall of the Auctioneer’s hammer and the Company, employees or agents shall not be responsible for any loss, damage or claim arising whilst remaining in possession of the Lot unless grossly negligent.

 

20. Payment by Buyer

20.1 The Purchase Price must be paid by the Buyer to the Company no later than three days after the Auction or Sale.
20.4 The Buyer will only acquire title to the Lot when the full Purchase Price has been received in cleared funds by the Company.

20.5 Payment must be made to the Company by cash, electronic funds transfer or approved credit card. Credit card fees shall apply. Cheques are not accepted without prior approval by the Company. 

20.6 A Lot will be retained until the full Purchase Price in cleared funds has been received for it by the Company with risk remaining with the Buyer. 

21. Collection of Purchases
All Lots must be paid for and collected by the Buyer by the third day after the Sale unless otherwise agreed by the Company or bear all costs incurred for the Lot thereafter.

22. Failure to Pay and/or Collect

22.1 Should the Buyer fail to pay the full purchase price in cleared funds within one week of the sale, the Company may do any or any combination of the following:

(a) re-sell the Lot without reserve by Auction or any other means whilst the Buyer remains responsible for payment of the original Purchase price to the Company.

(b) charge interest on the Purchase Price at a rate 4% above the Penalty Interest Rate from the date payment was due until the full Purchase Price has been received by the Company on resale or from the Buyer.

(c) rescind the sale of all lots involving the Buyer

(d) refuse collection of other lots purchased by the Buyer until full payment is made and retain any property held for, or payments due to, the Buyer from another sale, such to be put towards the outstanding Purchase Price.

(e) issue legal proceedings against the Buyer who will be responsible for all legal costs;

 

22.2 If a Lot is not collected within fourteen (14) days, the Company may after attempting to contact the Buyer, if reasonably possible:

(a) rescind the sale and resell the Lot by Auction or any other means, with any proceeds less charges to be paid to the Buyer but without refund of the original Purchase price; or

(b) dispose of the Lot appropriately without the Company being liable to the Buyer in any way whatsoever.

22.3 The Buyer shall pay any legal costs reasonably incurred by the Company or the Seller on an indemnity basis, due to the Buyer’s non-payment or failure to collect a Lot.

 

23. Absentee
23.1 An absentee bidder unable to attend the auction may direct the Company in writing in advance of the auction to bid up to a specified maximum amount on a Lot or Lots, without charge. If identical written absentee bids are received, the one received first will take preference. The Company will use best endeavours to execute the absentee bid, but no liability will be accepted for any errors or omissions arising.  

 

24. Telephone Bids
24.1 The Company will use best endeavours to execute telephone bids on behalf of prospective Buyers who register for the service prior to the auction. The Company accepts no responsibility for failure to contact or errors or omissions arising, including but not limited to the inherent risks of miscommunication whilst taking phone instructions or the connection failing.

 

25. GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999

25.1 GST and amounts payable to the Company:

The Company will collect on behalf of the ATO a Goods and Services Tax of 10% on all transactions requiring same within the meaning of A New Tax System (Goods and Services Tax) Act 1999.

25.2 GST and amounts payable to the Seller:

If the Seller prior to Sale notifies the Company that it is registered for GST the Company is authorised by the Seller to issue a tax invoice to the Buyer for any Lot which is a taxable supply; and will advise the Seller of the amount of GST in the Sale price and provide the Seller with a tax invoice for any taxable supply made by the Company to the Seller on payment of the Sale Proceeds to the Seller.

 

25.3 GST on sale of Lot to Buyer
(a) The Sale Price is inclusive of GST (if any) and where applicable the Company will issue a tax invoice to the Buyer showing the amount of GST included in the Sale Price; and any GST payable on any taxable supply made by the Company to the Buyer, even when the Seller has not notified the Company it is registered for GST.

(b) A Non-resident Buyer not required to be registered for GST in Australia may be able to claim a refund from the Company for any GST paid if all necessary shipping documents are provided to show that the Lot was exported from Australia within 60 days of Sale and the Seller has refunded the GST amount to the Company.

25.5 Obligations of non-resident Sellers
A non-resident Seller acknowledges that the Company may retain from Sale Proceeds any GST payable on the importation or Sale of a Lot. 

25.4 Reimbursements 

Any reimbursement to a party will be reduced by the amount of any input tax credit to which the party would be entitled.

26. Appointment of the Company as Agent

(a) Where the Company accepts appointment to import and export goods to and from Australia as agent for a non-resident Seller who is or is required to be registered for GST, that non-resident Seller acknowledges that the Company may engage suppliers to perform these and related services.  

(b) The Seller agrees to pay those suppliers or reimburse the Company for same and accept Tax invoices issued by those suppliers to the Company or by the Company for any Taxable supply by the Company on behalf of the Seller.

(c) The Company shall account for the GST requirements of the Seller. ref Division 57 GST Act.

(d) The Seller accepts the Company will claim any input tax credit allowed for the importation of the Seller’s goods as agent and the Seller shall not claim it.  

27. Governing Law and Jurisdiction

These Conditions are governed by and shall be construed in accordance with the law of the State in which the Auction is held. 

28. Notices

28.1 A notice under these Terms must be in writing, signed by an authorised person and delivered by hand or prepaid post, or email to the receiver’s latest notified address.

28.2 A Notice given in accordance with these terms takes effect:

(a) if hand delivered, on signed for delivery;
(b) if posted, three (3) days after the date of posting if posted to an address in Australia and seven (7) days if outside Australia; and

(d) if sent by email, at the time of transmission unless the sender is notified that the email delivery failed.

 

29. General Provisions

These Terms and Conditions and the Consignment Agreement Form constitute the entire agreement of the parties, and should any provision be determined to be invalid in whole or part it will not invalidate any other provision. Headings are included for purposes or meaning and interpretation.

30. Privacy Statement

CONTRACTS

All accepted bids are contracts and are considered final and non withdrawable.

BUYER'S PREMIUM

A buyer's premium of 20% (ex-GST) will be applied to all purchases.

ONLINE BIDDING

The person posting the bids online has to be the person who has registered for the auction.