GENERAL CONDITIONS OF BUSINESS

(28th June 2024)

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 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 Halcyon Auctions Pty Ltd ABN 18 624 251 467  trading as Halcyon Auctions 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.

‘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. For V Lots  the Premium is 12.5% 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 (including  registration on the Personal Property Security Register) 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. There shall be no Agreed Reserve for Lots with an  Estimated Selling Range of less than $500.

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 for the Lot for a subsequent Sale by up to 20%.

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 clause 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.

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 seven 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 seven 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 16.5) 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. Resale Royalty

The Resale Royalty Right for Visual Artists Act 2009 (Cwth) (‘the  Act’) will apply to the commercial resale of Artwork. Buyers and Sellers  must inform themselves of the provisions of the Act.

The seller:

(a) acknowledges that the Company will rely upon the information  supplied by the Seller and Copyright Agency Limited (‘CAL’) to determine  whether a Resale Royalty is applicable;

(b) acknowledges that the Seller understands their legal obligations under ‘the Act’;

(c) 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’;

(d) undertakes to indemnify the company for any Resale Royalty fee  and 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’;

(e) agrees that if the Seller fails to comply with any of the  Seller’s legal obligations under the Act, authorises the Company to  provide the seller’s name and contact details to CAL.

(f) where the lot is subject to the provisions of the Act, the Seller  will be advised by the Company and/or CAL and will be responsible to  pay the Resale Royalty as defined.

14. Unsold Lots

14.1 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.

14.2 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.

14.3 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.

14.4 Any unsold Lot not collected by the Seller within 28 days after  the Sale the Company will charge a handling fee at $100 plus GST per  Lot, storage fee at $20 plus GST per Lot per week and Indemnity fee at  1.5% plus GST of lower estimate per annum or part there off.

14.5 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 seven 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.

15. The Buyer

15.1 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.

15.2 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.

15.3 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.

15.4 In addition to the bidder registration form, the Company  reserves the right to request from prospective bidders and to deliver to  the Company a deposit of AUD$10,000 or such other higher amount as may  be determined by the Company together with any financial references,  guarantees and/or such other security as the Company may require in its  absolute discretion, as security for the bid. Any required deposits  shall be paid in Australian dollars by way of cash, wire transfer,  approved bank cheque or approved debit/credit card prior to the sale  (clients must be present their cards in person to the Company). If a  client is not successful on any lot, the Company will arrange for a  refund (subject to any right of set off) of the deposit amount paid by  such client without interest within 5 working days from the day of the  sale. Any exchange losses or fees associated with the refund shall be  borne by the client.

15.5 The Company has no obligation to accept any pre-registration  application. The Company’s decision on this regard shall be final.

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.

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, 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.

16.4 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.

16.5 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.

16.6 The benefits of this clause are for the Buyer only and cannot be assigned.

16.7 Despite clause 16.5 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.

16.8 If the conditions of clause 16.5 are satisfied and clause 16.7  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.

17. 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.

18. Contract of sale

18.1 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.

18.2 Risk of the Lot will pass to the Buyer on the fall of the Auctioneer’s hammer.

18.3 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.

19. Payment by Buyer

19.1 At that 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.

19.2 The Purchase Price must be paid to the Halcyon Auctions Account  not later than 4.00 pm on the second day after the Sale unless otherwise  stated in the Catalogue.

19.3 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.

19.4 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, either in  cash, wire transfer, approved bank cheque or approved debit/credit card  prior to the Sale (clients must be present their cards in person to the  Company). In the event that such absentee or telephone bidders are  unsuccessful then the Company will refund (subject to any right of set  off) any deposits received within 5 working days from day of the Sale.  Any exchange losses or fees associated with the refund shall be borne by  the client.

19.5 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.

19.6 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.

20. Collection of Goods

Purchases are to be collected and paid for by the second day after  the Sale. Unsold Lots must be collected within 28 days after the sale.  The Buyer or Seller (as applicable) shall be responsible for any  removal, storage, or other charges for any Lot after this day. The Buyer  or Seller (as applicable) is responsible for arrangements for shipping,  handling and packing of goods including transit insurance. If the  Company introduces any Carrier, Packer or Shipper no recommendation is  to be implied. The Company may assist with packing of goods but takes no  responsibility for loss, damage or breakage that may occur. The Company  will not roll canvases sold on stretchers or remove works from frames  or mounts.

21. Responsibility for Lots purchased

21.1 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.

21.2 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.

21.3 The Buyer shall be solely responsible for obtaining any export  licence that may be required in connection with a purchased Lot.

21.4 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.

22. Non-payment or failure to collect

22.1 If the Purchase Price in respect of a Lot is not paid for in  full in accordance with clause 19, the Company may, after a period of  two weeks (during which time the Company will attempt to contact to 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 1.65% 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 or 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;

(j) 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.

22.2 If the Lot is not collected in accordance with clause 20, the  Company may, after a period of two weeks (during which time the Company  will attempt to contact to 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.

22.3 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  22.1(c) from the date upon which the Buyer shall have become liable to  pay costs.

23. Absentee or commission bids

23.1 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.

23.2 The Company is prepared to execute telephone bids on behalf of  prospective Buyers who are not at the auction at no charge 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).

23.3 A telephone bidder may nominate an emergency bid amount to cover  an instance where a telephone connection is not available.  The  operator can execute the bid up to the nominated amount in the telephone  bidder’s absence.

23.4 The Company shall not be responsible for any errors or omissions  in connection with the execution of absentee or telephone bids.

24. GST

24.1 Interpretation

Words or expressions used in this clause 24 that are defined in A New  Tax System (Goods and Services Tax) Act 1999 have the same meaning.

24.2 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  Indemnity 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.

24.3 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 24.3(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 Indemnity Fee, and Expenses are consideration) including any  amounts payable on account of GST in accordance with clause 24.2(a).

24.4 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 unless the item is marked in the catalogue with a †, then GST  will be added to the hammer price.

(b) If the Seller has informed the Company that it is registered for  GST in accordance with clause 24.3(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 that supply in accordance with clause  24.2(b).

(c) If the Seller does not inform the Company that it is registered  for GST in accordance with clause 24.3(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 24.2(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.

(e) Notwithstanding clause 24.4(d) above, the Company may (at its  absolute discretion and at the request of the Buyer), agree to arrange  for the export of the Lot on such conditions as the Company sees fit.

24.5 Obligations of non-resident Sellers

(a) This clause 24.5 only applies to Sellers that are non-residents of Australia.

(b) In accordance with relevant provisions under Division 57 of the  GST Act, the Seller acknowledges and agrees that the Company Is its  agent for the purposes of arranging the importation and sale of the Lot  through the Company. Without limiting any of the above, the obligations  of the company shall include:

(i) to account for GST in respect of Lots sold through the Company;

(ii) to claim input tax credits in respect of Lots imported through the Company;

(iii) to issue tax invoice documentation to the Buyer in respect of sale of Lots made through the Company;

(iv) to register as a resident agent for GST purposes and otherwise  satisfy all relevant requirements under Division 57 of the GST Act; and

(v) to lodge periodic GST returns in respect of all supplies,  acquisitions and importations made by the Seller through the Company;

24.6 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.

25. 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.

26. Governing Law and Jurisdiction

26.1 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’).

26.2 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.

27. Notices

27.1 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.

27.2 A Notice given in accordance with clause 27.1 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.

27.3 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.

28. General provisions
    28.1 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.28.2 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.28.3 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.28.4 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.28.5 The Company  reserves the right to register its interest in any Lot on the Personal  Property Security Register as provided for under the Personal Property  Securities Act 2009 in its own right or for and behalf of the Buyer or  Seller as the case may be.
29. Drivers
    
    The Consignor acknowledges and  grants permission for Halcyon Auctions and its employees and agents to  drive or move the motor car or any other lot from time to time before,  during, or after the sale. The Consignor acknowledges that it is the  Consignor’s responsibility to maintain sufficient insurance coverage to  permit such driving or moving, and the Consignor specifically agrees to  indemnify, defend, and hold Halcyon Auctions harmless, as provided in  this agreement, from any liability that may result from such driving or  movement of the motor car or any other lot.