New Zealand - Terms and Conditions
Subject to any reserve price and/or at the discretion of the Auctioneer, the highest bidder shall be the Purchaser. The Auctioneer shall be the sole judge of who was the highest bidder. In the event of any dispute between bidders for a lot, the Auctioneer shall have absolute discretion to settle the dispute as sole arbitrator and his decision shall be final. The Auctioneer may (whether or not the lot has been knocked down as sold) resubmit the lot for sale by auction at the sale in progress or as soon as practicable thereafter.
2. Auction contract
Subject to Condition 1, the entry (whether by hand or electronically) of the Purchaser's name or his bidding identification number in the sale book or record by the Auctioneer or by his clerk (either of whom shall be authorised by the purchaser so to enter his name) shall be binding on the Purchaser and the sale book, together with these Conditions of Sale and the Buyer's Identification form shall constitute the whole of the contractual relationship between the Auctioneer and the Purchaser and the Vendor and the Purchaser. If the Vendor requires a separate agreement for sale (in a form disclosed prior to or at auction) to be signed by the Purchaser then the Purchaser shall sign that agreement as soon as practicable after the fall of the hammer and that agreement will then constitute the contractual relationship between the Vendor and the Purchaser together with these Conditions in so far as they are not inconsistent with that agreement.
3. Withdrawal of bids
Any bid acknowledged and relied upon by the Auctioneer shall not be withdrawn.
4. Purchaser to purchase as principal
The Purchaser shall be deemed to purchase as principal unless –
4.1 Prior to the sale he shall have disclosed to the Auctioneer that he will be bidding on behalf of a principal and shall have supplied 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
4.2 the Purchaser has actual authority to bid on behalf of the disclosed principal. The onus shall be on the Purchaser to show that he had such actual authority.
5. Auctioneer's rights
The Auctioneer and Vendor reserve the following rights (which may be exercised by the Auctioneer without giving any reason) –
5.1 To not offer for sale any lot described in the catalogue;
5.2 To offer for sale part only of any lot described in the catalogue;
5.3 To offer two or more of the lots described as separate lots in the catalogue for sale together as one lot;
5.4 (If any goods or lots described as separate lots in the catalogue are offered for sale together as one lot and no knocked down to a successful bidder) to offer such goods or lots for auction as separate lots;
5.5 To withdraw any lot or lots from sale;
5.6 To refuse to accept the bidding of any person or persons;
5.7 To refuse any person or persons admission to, or eject them from the auction site;
5.8 To refuse to accept any bid for a lot being less than a sum named from time to time by the Auctioneer;
5.9 To keep secret the existence and quantum of the reserve price (if any) of a lot prior to the close of bidding or withdrawal of the lot;
5.10 In the event that any Purchaser shall successfully bid for more than one lot at the auction
5.10.1 To appropriate any moneys received from that purchase in satisfaction or partial satisfaction of the purchase price (and sales tax or other Government charges if applicable) due in respect of any one or more 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;
5.10.2 To elect at any time to treat such contract for the sale of each such lot as interdependent with each other such contract or contracts and hence default under any such contract as default under all such contracts.
5.11 Auctioneer bidding
The Auctioneer may bid for the Vendor or for any prospective purchaser with or without disclosure and any such bid –
i. need not be expressed to be effective; and
ii. (if the highest bid to which a lot is knocked down) shall be sufficiently evidenced if recorded in the sale book.
5.12 (In the event that any lot is not sold) to offer and sell same at the auction or immediately thereafter by private treaty but otherwise on these conditions.
6. Reserve prices and vendor bids
6.1 This auction sale is subject to the reserve price (if any) for each lot specified to the Auctioneer by the Vendor which reserve price at the Auctioneer's election may be applied in respect of each group of lots or each parcel of goods which may be offered for sale as one lot.
6.2 The right of the Vendor (or any person on his behalf), to bid for a lot, is hereby reserved.
7. Details of bidders
Any bidder shall give his full name and residential address forthwith upon being called upon to do so by the Auctioneer and produce evidence of identification upon request.
8.1 Prior to completion of the auction sale or at any time thereafter specified by the Auctioneer the Purchaser shall pay to the Auctioneer the full purchase price for the lot (plus sales or other tax where applicable, and any other Government charges).
8.2 The Auctioneer at his discretion may or may not require immediate payment or part payment for a lot.
8.3 The purchase price (and where applicable, any part payment thereof and sales or other tax, and any other Governmental charges) shall be paid in cash unless otherwise agreed by the Auctioneer.
8.4 Any balance of the purchase price for a lot shall be paid by the Purchaser to the Auctioneer no later than the expiration of the period during which the Purchaser is required by these conditions to take delivery of the lot, and he shall not be entitled to require or demand delivery until the purchase price (and sales or other tax where applicable, and any other Governmental charges) shall have been paid in full.
8.5 Time shall be of the essence in relation to Conditions 8.1 and 8.4.
9. Exclusion of warranties
9.1 All lots are open for inspection prior to the sale and it is deemed that the goods have been inspected by the Purchaser. All lots are sold in their current state of repair and condition at the time of the auction or sale with all defects and faults latent, patent or otherwise (if any). No error or misdescription shall vitiate the sale and the Purchaser shall be bound to take delivery of the goods sold without allowance or abatement in price. Any deficiency in the quantity described shall not vitiate the sale, and neither the Auctioneer nor the Vendor shall be bound to deliver more than is in his possession. All lots (including machinery, timber, plant or other property) are to be bid for, purchased and taken as the same now stand and in their present position and condition.
9.2 Advertisements or brochures for the auction or forthcoming sales are statements of opinion and are not to be relied upon as statements, or representations of fact and intending bidders must satisfy themselves by inspection or otherwise as to the nature and condition of the goods offered for sale. If there is any reference to the state of repair, condition, fitness or quality of any goods by the Auctioneer the Purchaser acknowledges that such reference is information provided by the Vendor and if any dispute arises in any such respects then the Purchaser will exclude the Auctioneer from any such dispute or any subsequent claim, action or Court proceedings and the Purchaser agrees to indemnify the Auctioneer from and against all liability (including costs on a full indemnity basis) which may be incurred by the Auctioneer in relation to any such dispute, subsequent claim, action or Court proceedings.
9.3 The Auctioneer and the Vendor make no warranties and give no guarantees as to the condition, suitability, fitness for purpose or merchantable quality of any goods and the Purchaser expressly acknowledges that:
9.3.1 the Consumers Guarantee Act does not apply;
9.3.2 the Sale of Goods Act, does not apply; and
9.3.3 any warranties, guarantees or conditions as to quality or fitness for purpose implied by the common law or provided by statute are hereby expressly excluded. In addition no warranty or guarantee shall be implied from any statement or affirmation made at or before the time of sale or otherwise, and in all cases where a guarantee or warranty is intended, the same shall attach and be enforceable only if expressly given and reduced to writing and signed by the Vendor or by the Auctioneer as agent of the Vendor.
10. Knocked down goods at purchaser's risk
Each lot shall lie at the Purchaser's risk from the fall of the hammer and neither the Auctioneer nor the Vendor shall be accountable for any deficiency damage or loss howsoever caused which may arise thereafter.
11. Delivery and removal
No lot shall be removed during the sale or without a clearance from the Auctioneer. Subject to condition 8 hereof delivery of all lots is to be taken and the goods removed by the Purchaser within the time specified on the catalogue or otherwise by the Auctioneer and in this respect time is of the essence. All removals shall be at the expense and risk of the Purchaser and in such removal the Purchaser shall do no damage to the sale site or other goods, or shall forthwith make good any damage which may be occasioned at his own expense. Whether or not a lot has been paid for, any lot or part thereof not so removed by the Purchaser may thereafter be removed by the Auctioneer or by some person or company engaged by the Auctioneer or the Vendor and/or stored at the place at which the auction sale occurs or elsewhere by the Auctioneer by some person or company engaged by the Auctioneer. Such removal and/or storage (whether made for the safety of the goods or for the convenience of the Vendor or for the convenience of the Auctioneer or to enable resale of the goods pursuant to Condition 13 or otherwise) shall be deemed to have been made by the Auctioneer at the request of the Purchaser and all costs incurred by the Auctioneer or Vendor in relation to such removal and/or storage shall be immediately payable by the Purchaser to the Auctioneer and the Auctioneer and/or the Vendor may withhold delivery until all such costs have been fully paid by the Purchaser and may be sued for and recovered as liquidated damages.
12. Title and property in goods
(a) The Vendor warrants to the Purchaser that the Vendor has good title to the goods and/or that he has proper authority to sell the goods. The Vendor acknowledges that the Auctioneer relies on this warranty in offering the goods for sale on behalf of the Vendor and the Purchaser acknowledges that such warranty is given by the Vendor and not by the Auctioneer.
(b) Notwithstanding Condition 10 hereof property in any lot sold shall not pass until payment in cash in full of the purchase price (and sales tax where applicable and any other Governmental charges or other moneys payable under these Conditions) or until all cheques given on account of same have been cleared and honoured.
If the Purchaser shall default in the observance or performance of any of his obligations under these Conditions or any interdependent or separate agreement with the Auctioneer or Vendor or if any cheques given on account of his purchases are dishonoured, then any moneys which the Purchaser shall have paid to the Auctioneer on account of his purchase or purchases shall be absolutely forfeited to the Auctioneer of the lot or lots concerned and the Vendor or the Auctioneer shall be at liberty to sue the Purchaser for the purchase price and/or damages, or at option of the Vendor or the Auctioneer and without notice to the Purchaser to resell the lot or lots in any manner (including sale by private treaty) and upon such terms and conditions as he or they may think proper.
14. Damages on default
All losses (including any deficiency in resale price) and expenses incurred by the Vendor or by the Auctioneer resulting from any resale pursuant to Condition 13 hereof (whether or not the amount of those damages exceed the price that was to be paid by the Purchaser for the lot or lots) and all damages which the Vendor and/or the Auctioneer may sustain by reason of the Purchaser's default in the observance or performance of any of his obligations under these Conditions, shall be recoverable from the Purchaser as liquidated damages. Without limiting the generality of the foregoing, the Auctioneer and/or the Vendor shall be entitled to recover from the Purchaser as liquidated damages all costs or expenses incurred by the Auctioneer or the Vendor pursuant to Condition 11 hereof (whether or not the amount of same exceeds the price that was to be paid by the Purchaser for the lot or lots and including all legal costs on a solicitor/client basis) and in the event of a resale of the lot or lots pursuant to Condition 13 hereof (in addition to any deficiency in the resale price):
14.1 the amount of any commission lost on the original sale as the result of the Purchaser's default;
14.2 commission (at the rate normally charged by the Auctioneer) on the resale; and
14.3 the costs of advertising in respect of any such resale.
15. General Law (Saving of rights)
All rights and remedies available to the Auctioneer against the Purchaser under the general law are preserved on the basis that the rights and remedies available to the Auctioneer against the Purchaser under these Conditions are additional to and not in derogation of such general law rights and remedies and the Auctioneer may at his option exercise such general law rights and remedies against the Purchaser either in addition to or as an alternative to the rights and remedies which Auctioneer has against the Purchaser under these Conditions.
16. Further special conditions
The Auctioneer may at or prior to the commencement of an auction announce further special conditions applying to that auction or a particular item put up for auction in which event such further special condition or conditions shall be deemed to be incorporated into and form part of these Conditions.
The Buyer expressly acknowledges and warrants to the Agent and to the Vendor that prior to making an offer for a lot or successfully negotiating the purchase of a lot by private treaty, he has either cash resources immediately available to complete his purchase or has obtained approval for such financial assistance or loans as he may need to complete his purchase and that such financial assistance or loans are on reasonable terms and satisfactory to him.
18. Goods and services tax (GST)
18.1 The Vendor and Purchaser agree that:
(a) the purchase price of a lot or lots have been calculated either inclusive of GST or exclusive of GST depending upon the following situation:
(i.) the purchase price of a lot or lots are calculated inclusive of GST, if the Vendor has elected to sell the goods inclusive of GST. GST is also added to all charges and fees applicable; or
(ii.) the purchase price of a lot or lots are calculated exclusive of GST if the vendor elects to sell the goods exclusive of GST with GST being added to the purchase price of the lot or lots sold. GST is also added to all charges and fees applicable.
(b) Subject to 18.1, if the whole or any part of any purchase price is the consideration for a Taxable Supply, the Purchaser must pay to the Vendor via the Auctioneer, an amount equal to the GST Amount with that purchase price; and
(c) The Auctioneer, will provide to the Purchaser (if applicable) a Tax Invoice at the same time at which any GST Amount is payable.
19. Note: Special conditions re sale of plant New Zealand
The Purchaser acknowledges that:
19.1 The Auctioneer and the Vendor have warned prospective Purchasers that no plant offered for sale is fit for use in any workplace and it is the purchaser's or user's responsibility to ensure that the plant is brought to a standard necessary to comply with the relevant Act and the Regulations before using it and to carry out testing and examination to ensure it is safe and fit for use in the workplace.
Unless the context otherwise requires:
20.1 'Auctioneer' means PICKLES AUCTIONS LIMITED except that where the context so permits it shall mean or include the person actually conducting the auction sale on its behalf.
20.2 'Vendor' includes each and every one of the owners of a subject lot and the person or company instructing or authorising the Auctioneer to offer that lot for sale and where more than one jointly and severally.
20.3 References to "Conditions" or "these Conditions" means a reference to this document which is headed – "Terms and Conditions of Auction and/or Sale".
20.4 References to any legislation or legislative provision include any statutory modification or re-enactment of, or any legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision;
20.5 Words denoting the singular number include the plural number and vice versa;
20.6 Words denoting individuals or persons include corporations, authorities, governments and governmental agencies and vice versa;
20.7 Words denoting any gender include all genders;
20.8 Headings are for convenience only and do not affect interpretation;
20.9 References to any agreement or document are to that agreement or document (and, where applicable, any provision thereof) as amended, notated, supplemented or replaced from time to time;
20.10 References to any party in these Conditions, or any other document or arrangement, include that party's executors, administrators, substitutes, successors and permitted assigns.
20.11 Any condition or agreement on the part or in favour of two or more persons is deemed to bind them or be in favour of them jointly and each of them severally.
20.12 If any term or condition of these Conditions shall to any extent be held by any court of competent jurisdiction to be invalid or unenforceable the remaining terms and conditions of these Conditions shall not be affected thereby, and shall remain in full force and effect.
20.13 The proper law governing the interpretation and enforcement of these Conditions including all substantive rights and obligations hereunder and the manner mode and method of performance shall be the law of Auckland.
Special conditions for motor vehicle auctions
9B The Auctioneer makes no representation as to the title of any motor vehicle offered for sale by auction. In the event that a guarantee of title is offered, such guarantee is limited between the Auctioneer and the Purchaser of such motor vehicle and does not pass or extend to any subsequent purchaser or successor in title of such motor vehicle or any third party.
9C The Purchaser acknowledges:
9C.1 that if a motor vehicle, is offered for sale or sold by the Auctioneer with a safety Inspection Report or an Unregistered Vehicle Inspection Report then the Purchaser acknowledges that any such Inspection Report was supplied by the Vendor and was not supplied by the Auctioneer AND the Purchaser further acknowledges that the Auctioneer cannot and does not warrant or guarantee the correctness or accuracy of anything contained in or implied by such Inspection Report as it is only acting as agent of the Vendor AND the Purchaser will not hold the Auctioneer liable or responsible in any way whatsoever for the contents of such Inspection Report and if any dispute arises in relation to such Inspection Report then the Purchaser acknowledges and agrees that he will exclude the Auctioneer from any such dispute or any subsequent claim action or Court proceedings and further agrees to indemnify the Auctioneer from and against all liability (including costs on a full indemnity basis) which my be incurred by the Auctioneer in relation to any such dispute, subsequent claim action or Court proceedings; and
9C.2 That if a motor vehicle is offered for sale or sold by the Auctioneer with a Pre-Auction expert report as to its condition then the Purchaser acknowledges that such report was supplied by the Vendor and was not supplied by the Auctioneer AND the Purchaser further acknowledges that the Auctioneer cannot and does not warrant or guarantee the correctness or accuracy of anything contained in or implied by such report as it is only acting as agent of the Vendor AND the Purchaser will not hold the Auctioneer liable or responsible in any way whatsoever for the contents of such report and if any dispute arises in relation to such report then the Purchaser acknowledges and agrees that he will exclude the Auctioneer from any such dispute or any subsequent claim action or Court proceedings and further agrees to indemnify the Auctioneer from and against all liability (including costs on a full indemnity basis) which may be incurred by the Auctioneer in relation to any such dispute, subsequent claim action or Court proceedings.
9C.3 No vehicle may be driven on a road unless it complies in all respects with the Transport Act 1982 and regulations made here under and the purchaser shall be responsible for complying with these requirements.
Agent of the Vendor:
PICKLES AUCTIONS LIMITED
400-450 Mt Wellington Highway
Mt Wellington New Zealand