kimberley auctions

Kimberley Auctions is agent for the Seller and is not responsible for any default by the Seller or the Buyer. Staff and Auctioneer or anyone engaged by KA is representative of KA

Subject to any reserve price, the highest bidder shall be the Buyer and any dispute shall be settled by the Auctioneer who may at any time at his absolute discretion and regardless of the fall of the hammer re-open the bidding or withdraw the Lot from sale.  The decision of the Auctioneer shall be final.

The Auctioneer has the right in their absolute discretion to refuse any bid and to advance and regulate the bidding as they decide and any bid acknowledged and relied upon by the Auctioneer may not be withdrawn.

The Auctioneer and the KA reserve the following rights which may be exercised by the Auctioneer without giving any reason therefore:

(a)    not to offer for sale any Lot described in the catalogue;

(b)    to offer for sale part
only of any Lot described in the catalogue;

(c)    to offer (2) or more of the Lots described in the catalogue as separate Lots or together as one Lot;

(d)    should such lots referred to in (c) of this condition not be knocked down under the hammer to a successful bidder, to offer them as separate lots;

(e)   to keep secret the existence and amount of the reserve price (if any) of a Lot;

(f)    in the event that any
Buyer shall successfully bid for more than one Lot at the auction -

(i)   to appropriate any money received from that Buyer in satisfaction or partial satisfaction of the Purchase Price due in respect of any one or more of such Lots to the total or partial exclusion of amounts due in respect of any other such Lot or Lots as the Auctioneer shall see fit; and

(ii)   to elect at any time to treat each Contract for the sale of each such Lots as interdependent with each other such Contract or Contracts and default under any
such Contract shall be treated as default under all such Contracts;

(g)   to bid on behalf of the Seller or any prospective Buyer with or without disclosure;

(h)   in the event that any Lot is not sold at the auction to offer to sell same thereafter by private treaty but otherwise subject to these Conditions; and

(i)    to refuse any person or persons admission to, or eject them from, the auction site.

Every Buyer shall be deemed to bid as principal unless prior to the auction he discloses to KA that he will be bidding on behalf of a principal and supplies the full name and address of his principal and a copy of a written authority to bid for and on behalf of that principal and such authority is satisfactory to KA.

Every bidder shall complete and sign a Buyers Registration Form.  Proof of identity acceptable to KA may be required prior to entry to the auction premises.

The Buyer may be required to pay to KA a Buyers Premium based on a percentage of the Hammer Price.  The terms of that premium will be published prior to the auction.  The Buyer acknowledges that KA may also receive commission from the Seller.

(a) A Goods and Services Tax (GST) at the prescribed rate, where applicable, will not be
included in the Hammer Price of a Lot.  Unless stated otherwise, the GST will apply in all cases to Kimberley Auctions' seller’s commission, charges and buyer’s premium, and will be added to those fees and charges.  KA will disclose whether or not GST is applicable to the hammer price of a Lot prior to offering the Lot for sale.

(b) Where GST is collected on the hammer price of a Lot for a registered seller, the GST will be paid to the Seller with the proceeds of the sale, and the vendor acknowledges it is the Seller’s responsibility to remit the GST to the appropriate authority

(c) It is the Seller’s responsibility to disclose to KA whether or not the sale of the Lot(s) will be subject to GST.

All conditions, notices, descriptions, statements and other matters in the catalogue and elsewhere concerning a Lot are subject to any statements modifying or affecting the same made by the Auctioneer from the auction prior to any bid being accepted for the Lot.

(a) Any representation or statement by KA in any catalogue, advertisement or brochure as to the origin, date, age, period, attribution, genuineness, provenance, condition, quality, or estimated selling price of any Lot is a statement of opinion only.  Any illustrations in the catalogue are solely for the guidance of prospective Buyers and are not to be relied upon in terms of tone or colour or necessarily to reveal imperfections in any Lot;

(b) Many Lots are of an age or nature which precludes their being in pristine condition and some descriptions in the catalogue make reference to damage and/or restoration.  Such information is given for guidance only and the absence of such a reference does not imply that a Lot is free from defects nor does any reference to particular defects imply the absence of others;

(c) Buyers must satisfy themselves as to all matters referred to in (a) and (b) above by inspection or otherwise prior to the date of the auction.  The attention of Buyers is also drawn to the Explanation of Cataloguing Practice (if any) contained in the catalogue.

(a) No error or misdescription or deficiency in quantity shall vitiate the sale and the Buyer shall be bound to take delivery of the Lot without any allowance or abatement in price. Gemstones have not been removed from settings and all grades and weights are estimates only.

(b) Any warranties which might otherwise be implied by the Sale of Goods Act 1923 are hereby excluded and shall not apply.  All Lots are sold “as is” and KA and the Seller make no representations or warranties as to any Lot other than those implied by the Common Law or by statute, the exclusion of which would render this Condition
void or voidable or which would constitute an offense by the Auctioneer or the Seller.

(c) Intending bidders must satisfy themselves by inspection or otherwise as to the nature of the Lot and must accept same with all faults, patent or latent (if any).

(d) No warranty shall be implied from any affirmation made at the auction or otherwise but in all cases where an express warranty is intended, the same shall only be enforceable if reduced to writing and signed by the Seller or by the Auctioneer as agent for the Seller.

(a) if

(1) within twenty-one (21) days of the date of the auction KA receives notice in writing from the Buyer of any Lot that in his view the Lot is a Forgery,

(2) within fourteen (14) days of such notice, the Buyer returns the Lot to KA in the same condition as at the date of the auction, and

(3) within a reasonable time thereafter, the Buyer satisfies Kimberley Auctions that the Lot is a Forgery and that the Buyer is able to give a good and marketable title of the Lot free of any liens or encumbrances, then Kimberley Auctions will set aside the sale and refund to the Buyer any amount paid for the Lot.

(b)    Provided that the Buyer shall have no rights under this Condition if:

(1)    he or she does not give
the notice in writing within twenty-one (21) days as specified in Clause 12(a) (1),

(2)    the catalogue description
at the date of the auction was in accordance with the then generally accepted opinions of scholars or experts or fairly indicated that there was a conflict
of such opinion, or

(3)   it can be established that the Lot is a Forgery only by means of a scientific process not generally accepted for use until after the date of the auction or by means of a process which as at that date was unreasonably expensive or impractical or likely to have caused damage to the Lot;(c) The Buyer shall not be entitled to claim under this Condition for more than the amount paid by him for the Lot and in particular shall have no claims for any loss, consequential loss or damage, whether direct or indirect, suffered by him.

(d) The benefit of this Condition shall not be assignable and shall rest solely and exclusively in the Buyer who shall be the person to whom the original invoice was made out by Kimberley Auctions in respect of the Lot when sold and who has since the auction retained uninterrupted and unencumbered ownership thereof.

(e) In the event of a dispute under this Condition then the matter shall be settled by arbitration, the Arbitrator to be nominated by the President of the Auctioneers and Valuers Association of Australia (Inc.).  Both the Buyer and the Seller agree to be bound by that decision.

Upon the sale of a Lot, the Buyer shall:

(a) unless he has already done so, give to Kimberley Auctions his name and address, and, if so required by Kimberley Auctions, proof of his identity and details of his bank or other suitable references,

(b) sign the agreement for sale (if any);

(c) pay to Kimberley Auctions the Purchase Price within two (2) working days from the date of the auction unless such other terms or periods have been specified or agreed to prior to the auction.  Payment shall be made in Australian dollars either in cash, Visa/Master Card/American Express (1.9% surcharge for purchases made by credit cards and 2.9% for American Express), bank cheque or by telegraphic transfer direct to Kimberley Auctions Account. Personal cheques may be accepted at the discretion of Kimberley Auctions but, unless prior arrangements have been made, must be cleared before delivery of the Lot.

(d) The Auctioneer may at his discretion require immediate payment or part payment of the Purchase Price in cash or otherwise upon the fall of the hammer.

A purchased Lot shall be at the Buyer’s risk in all respects from the fall of the hammer whether or not payment has been made and neither Kimberley Auctions nor the Seller shall thereafter be liable for any loss or damage of any kind, whether caused by negligence or otherwise, notwithstanding that any Lot is in or under Kimberley Auctions custody or control at the time of the occurrence of the loss or damage.

(a) The property in a Lot shall not pass to the Buyer until the Purchase Price has been paid in full and until all cheques given on account of same have been cleared.

(b) No Lot may be taken away during the auction nor may any Lot be taken away until the Purchase Price has been paid in full.

(c) The Buyer shall remove at his expense any Lot purchased by him within two (2) working days from the date of the auction or such other time as may be specified or agreed to by Kimberley Auctions and in this regard time shall be of the essence.

(d) Any removal shall be at the risk of the Buyer and, in such removal, the Buyer shall do no damage or shall forthwith make good any damage which may be occasioned.

(e) Any Lot or part thereof which the Buyer does not remove may thereafter be removed by Kimberley Auctions or by some person firm or company engaged by Kimberley Auctions or the Seller and/or stored at the place at which the auction took place or elsewhere.  Such removal and/or storage (whether made for the safety of the goods or for the convenience of the Seller or Kimberley Auctions or to enable resale of the Lot pursuant to Condition 15) shall be deemed to have been made by Kimberley Auctions at the request of the Buyer and all costs incurred by Kimberley Auctions or the Seller
in relation thereto shall be immediately payable by the Buyer to Kimberley Auctions who may sue for and recover the same as liquidated damages.

(f) Any packing and handling of purchased Lots by Kimberley Auctions is undertaken solely as a service to Buyers, and will only be undertaken at Kimberley Auctions discretion and at the Buyer’s risk.  Kimberley Auctions shall not be liable in any event for any damage to glass or frames, irrespective of cause.  Kimberley Auctions shall not
be liable for any errors or omissions or damage caused by packers and shippers that Kimberley Auctions has recommended to Buyers.(g) No Buyer shall resell or otherwise deal with any Lot or part thereof within the auction premises.

(a) If a Buyer fails either to pay for or to take away any purchased Lot within two (2) working days of the auction or such other period as is specified at the auction or subsequently agreed to or any cheque given on account of the Purchase Price is dishonored, Kimberley Auctions shall, without further notice to the Buyer and
in its absolute discretion and without prejudice to any other rights or remedies it may have, and without being bound to give any notice, be entitled to exercise one or more of the following rights or remedies:

(1)    to absolutely forfeit any money which the Buyer may have paid;

(2)    to issue proceedings against the Buyer for damages for breach of contract;

(3)    to rescind the sale of that or any other Lot sold to the Buyer at the same or at any other auction;

(4)    to resell the Lot or cause it to be resold by auction or private sale.  Any deficiency in the Purchase Price resulting from such resale (after giving credit for any payment made) together with the full costs incurred in connection with the resale (including commission and Expenses) shall be payable to Kimberley Auctions by the Buyer and any surplus (if any) over the Proceeds of Sale of the initial sale shall belong to Kimberley Auctions;

(5)    to store the Lot or cause it to be stored whether in its own premises or elsewhere at the sole expense and risk of the Buyer, and to release the Lot only after payment in full of the Purchase Price together with Expenses accrued and all other costs incurred in connection with the Lot;

(6)    to charge interest on the Purchase Price and Expenses at the Published Rates calculated on a daily basis to the extent that they remain unpaid in part or in full for more than two (2) days from the date of the auction;

(7)    to retain the Lot or any other Lot sold to the Buyer at the same or any other auction and release the same only after payment of the Purchase Price and accrued Expenses;

(8)    to apply any money at any time due and/or any Proceeds of Sale of any Lot then due or at any time thereafter becoming due to the Buyer by Kimberley Auctions or the Vendor towards settlement of the Purchase Price and Expenses;

(9)    to exercise a lien on any property of the buyer which is in Kimberley Auctions possession for any purpose;

(10) to apply any payments by the Buyer to Kimberley Auctions or any credits due by Kimberley Auctions to the Buyer towards any sums owing from the Buyer to Kimberley Auctions or to any associated company of Kimberley Auctions without regard to any directions of the Buyer or his agent, whether express or implied.

(b)    Without limiting the generality of the foregoing, Kimberley Auctions shall be entitled to recover from the Buyer:

(1)    the amount of any Sellers commission and Buyers Premium upon the purchase which the Buyer did not complete, as determined in accordance with the Published Rates.

(2)    such sum for Expenses incurred by the Auctioneer in connection with or incidental to the auction or the resale, and

(3)    where applicable, any sales tax, or any other tax or charge relating to or arising from the sale of the Lot.

(c)   Should the same Buyer purchase more than one Lot at the same sale, then Kimberley Auctions may at any time elect to treat each contract as interdependent with the others and default under any one contract shall constitute default under any or all of the others.

All persons attending an auction do so at their own risk and the auctioneer shall not be liable for any damage, loss or injury to person or property suffered for any cause whatsoever at any auction except insofar as the damage, loss or injury is caused by the direct negligence of Kimberley Auctions.

These Conditions of Business shall be governed by and construed in accordance with the law of the State in which the sale has been conducted and all parties concerned hereby submit to the exclusive jurisdiction of that State’s Courts.

Where applicable these Conditions shall apply where relevant to either a sale by auction or by private treaty

Any notice given hereunder shall be in writing and if given by post shall be deemed to have been duly received by the addressee in the ordinary course of post.

In these Conditions of Business the following words and expressions shall have the following meanings:

Auctioneer: Kimberley Auctions its servants and agents except that where the context so permits it shall include the person actually conducting the auction sale on behalf of Kimberley Auctions.

Buyers Premium: The premium payable to Kimberley Auctions by the Buyer based on a percentage of the Hammer Price as published.

Expenses: All expenses reasonably and necessarily expended by Kimberley Auctions behalf of the Vendor including but not limited to cartage, photographs, repairs, insurance and cheque issuing costs together with a handling fee not exceeding 20% of the item of expense. In addition storage expenses on uncollected Lots will be charged for at Commercial rates.

Forgery: A Lot made or substantially made with an intention to deceive as to authorship, origin, date, age, period, culture or source which is not shown to be such in the description in the catalog and which at the date of the auction had a value materially less that it would have had if it had been in accordance with the description.

Hammer Price: The price at which a Lot is knocked down to the Buyer at the auction or the gross sale price, without deduction, if the Lot is sold by private treaty.

Kimberley Auctions : Kimberley Auctions and its employees and agents.Lot: Any item deposited with Kimberley Auctions, whether on its premises or elsewhere, with a view to its sale by auction and, in particular, the item or items described against any Lot number in any catalogue.  This phrase also includes the word “goods”.

Proceeds of Sale  The net amount due to the Vendor on the sale of a Lot being the Hammer Price less Sellers Commission and Expenses, and any other amounts due to Kimberley Auctions or to any associated company of Kimberley Auctions from the Seller in whatever capacity and howsoever arising.

Reserve Price: The value which is agreed to by Kimberley Auctions and the Vendor in writing as the minimum price for which a Lot will be sold.

Seller: 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.

Sellers Commission:  The commission due to Kimberley Auctions from the Seller on the sale or attempted sale of a Lot.

GST:  Goods and Services Tax