Conditions of Sale

MENZIES CONDITIONS OF SALE

These conditions of sale constitute the entire agreement with the Buyer with respect to any lots listed for sale in the catalogue. Amendment to the catalogue descriptions may be made verbally during the course of auction or by appropriate posted notices. By bidding at auction, you shall be bound by the conditions set out below. The auction is conducted in Australian dollars.

1. Control of Auction

Menzies Art Brands will have absolute discretion to determine the successful bidder should a dispute arise between the bidders and this includes the power to reject any bid, to cancel the sale or to re-offer the property in dispute.

2. Lots Subject to Reserve

All lots may be subject to a reserve price which Menzies Art Brands shall act to maintain by bidding through the Auctioneer. The Auctioneer may place a bid on behalf of the Vendor and continue to bid until the reserve is reached. The reserve price is strictly confidential between Menzies Art Brands and the Vendor.

With respect to lots that are offered without reserve, unless there are already competing bids, the auctioneer, at his or her discretion, will generally open the bidding at 50% of the low pre-sale estimate for that lot. In the absence of a bid at that level, the auctioneer will proceed backwards at his or her discretion until a bid is recognised, and then continue up from that amount.

3. Absentee or Commission Bids

Menzies Art Brands may accept any bid in the absence of the bidder by facsimile, email or telephone however with respect to all such bids, Menzies Art Brands accepts no responsibility to errors or omissions in connection with their execution.

Absentee bids submitted on 'No Reserve' lots will, in the absence of a higher bid, be executed at approximately 50% of the low pre sale estimate or the amount of the bid if it is less than 50% of the low pre-sale estimate.

4. Property Sold as is

Subject to any express warranty set out in these conditions of sale, all property is sold without any express or implied warranty or representation with respect to provenance or condition. No written or oral statement made at any time, shall constitute such warranty or representation. Each lot is sold 'as is', according to these conditions of sale.

Menzies Art Brands is not able to and does not carry out exhaustive enquiries with respect to the accuracy or completeness of the provenance of a lot.

No entitlement to copyright in the lot can be assumed and there may be a reservation of copyright by the original Artist or other prior owners.

Bidders acknowledge these facts and accept responsibility for making their own investigations and inspections with respect to any lot in which they may be interested before the auction.

5. Purchase Price Defined

The purchase price payable by the Purchaser shall be the hammer price plus the buyer's premium together with any Goods and Services Tax. The buyer's premium is 25% (GST inclusive) of the hammer price.

Payment of the purchase price as defined above is due in Australian dollars.

6. G.S.T.

"G.S.T." means the goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Com) (as amended).

1. Menzies Art Brands will sell the Property to be auctioned on a G.S.T. inclusive basis. The hammer price will therefore be inclusive of any G.S.T. payable. Menzies Art Brands will invoice the Purchaser for the hammer price, inclusive of any applicable G.S.T. plus the buyer's premium, inclusive of G.S.T. Menzies Art Brands will account to the Vendor for any applicable G.S.T. inclusive in the hammer price actually recovered from the Purchaser. The Vendor will be responsible to pay the G.S.T to the Australian Tax Office.
2. The Purchaser must carefully assess whether input tax credits for any G.S.T. paid in addition to the hammer price will be available. We recommend you contact your accountant or lawyer on this question.
3. A purchased Lot shall be at the Buyer's risk in all respects from date payment is due to Vendor whether or not payment has been made and neither Menzies Art Brands nor the Vendor 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 Menzies Art Brands custody or control at the time of the occurrence of the loss or damage.
4. Menzies Art Brands advise all Buyers to arrange for their own 'all risks' insurance to cover their purchased goods effective from date for payment to protect their interests as Menzies Art Brands can not warrant that the Vendor has insured its interests in the goods and that Menzies Art Brands cover will extend to all risks.
5. Menzies Art Brands does not accept responsibility for goods damaged by insect infestation or by changes in atmospheric conditions and Menzies Art Brands shall not be liable for such damage nor for any other damage to glass or to picture frames.

7. Resale Royalty Rights for Visual Artists

As from the 9th June, 2010, The Resale Royalty Right for Visual Artists Act 2009 (Cwth) ('the Act') will apply to the commercial resale of Artwork. Menzies will rely on information supplied by the Seller and Copyright Agency Limited ('CAL') to determine whether Resale Royalty Rights ('Artists' Resale Royalty') are applicable. Buyers and Sellers must inform themselves of the provisions of the Act and take professional advice if necessary on its application to a sale and purchase governed by the Conditions of Sale which appear in this catalogue. Where the lot is considered to be subject to the provisions of the Act, the Seller will be notified by Menzies and / or CAL, and then be responsible to pay the Artists' Resale Royalty as defined.

8. Insurance

1. Menzies maintains their own insurance against their personal liability for some risks arising from insurable perils including fire, theft following forcible entry and water damage. The value of the Goods covered by Menzies policy is restricted to the gross amount realised at Auction, or in the case of Goods unsold at Auction, withdrawn or otherwise held prior to a sale, Menzies estimated auction realisation price – the 'reserve price'.
2. Menzies own insurance will subsist until payment is made by the Buyer or, in the case of unsold Lots, until the expiry seven (7) days after notice from Menzies sent by prepaid mail, email or facsimile to the Vendor's last known address, email account or facsimile number requiring the Vendor to collect the same.
3. A purchased Lot shall be at the Buyer's risk in all respects from date payment is due to Vendor whether or not payment has been made and neither Menzies Art Brands nor the Vendor 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 Menzies Art Brands custody or control at the time of the occurrence of the loss or damage.
4. Menzies Art Brands advise all Buyers to arrange for their own 'all risks' insurance to cover their purchased goods effective from date for payment to protect their interests as Menzies Art Brands can not warrant that the Vendor has insured its interests in the goods and that Menzies Art Brands cover will extend to all risks.
5. Menzies Art Brands does not accept responsibility for goods damaged by insect infestation or by changes in atmospheric conditions and Menzies Art Brands shall not be liable for such damage nor for any other damage to glass or to picture frames.

If the Lot is damaged or destroyed after sale and Menzies Art Brands insurance company pays compensation which is then paid to or on behalf of a Buyer, the Buyer's premium shall still be payable by the Buyer in addition to the final bid price calculated in accordance with the Published Rates.

9. Penalty Interest

If the Buyer fails to pay for the property within 30 days, and extended payment terms have not been granted, penalty interest shall run on the amount of monies outstanding from the date due for payment until the date payment is made at the rate prescribed by the Penalty Interest Rates Act (Vic) plus two percentum. In the event of the Buyer being in default of his/her obligation to pay and the overdue account is then referred to a debt collection agency, and/or law firm for collection the commission payable calculated on the basis of the debt being paid in full and legal costs incurred either directly or by collection agency on an indemnity basis shall be added to the amount outstanding and form part of the debt.

10. Collection of Property Sold

The Purchaser may only remove the goods from the Auction Room of Menzies once the property has been paid for in full. All lots sold must be removed from the premises of Menzies no later than 30 (thirty) days from the date of sale. If the goods have not been removed by this deadline the goods may be transferred to a public warehouse or stored privately and all storage freight and other associated costs shall be to the Purchaser's account.

11. Handling and Packaging

Buyers should make own arrangements for shipping of goods including transit insurance. Menzies Art Brands will assist Buyers to identify Carriers who will undertake to handle goods at the Buyers direction. If Menzies Art Brands introduce Buyer to Packers or Shippers no recommendation is to be implied.

12. Remedies of Menzies Art Brands

If the buyer is in breach of any of the conditions of sale then Menzies Art Brands may choose to take the following action:–

1. Cancel the sale, retaining as liquidated damages any payment made by the buyer.
2. Re-sell the property without any minimum price at the next auction of Menzies Art Brands or privately on 5 (five) days notice to the Buyer.
3. Take any other action Menzies Art Brands may deem necessary.

The remedies set out above are in addition to any other remedies Menzies Art Brands may have either at common law or equity and any deficiency that may exist between the purchase price and the price paid upon re-sale shall be to the account of the defaulting buyer including all costs and expenses, warehousing and expenses of both sales and Solicitor's costs on a Solicitor/Client basis.

In the event a defaulting buyer has made a part payment Menzies Art Brands reserves the right to apply such payment to any such lots at its sole discretion. Any defaulting buyer will also be deemed to have granted us a security interest in any property that is in the custody of Menzies Art Brands.

13. Buyer's Remedies

The buyer acknowledges that Menzies Art Brands under no circumstances shall be responsible for any indirect or consequential loss or damage including loss of profits for any acts or omissions that have occurred before during or after the course of an auction. The buyer acknowledges that its damages shall be limited to the original purchase price paid for the lot.

14. Choice of Law

By bidding at an auction whether present, in person or by agent or by absentee bid, the buyer shall be deemed to have consented to the exclusive jurisdiction of the Courts of the State in which the Auction is conducted.

15. Refund in Case of Forgery

In the event of proven forgery Menzies Art Brands will refund to the buyer the purchase price of the lot. This refund will only occur provided the following conditions are met:

1. The buyer must produce evidence from two independent experts who both agree that the lot is a forgery. Menzies Art Brands reserves the right to request further expert evidence if, in its sole discretion, it is not satisfied with the findings of either expert.
2. The buyer must provide written notification to Menzies Art Brands within 4 (four) years of the auction date of the forgery allegations.
3. The buyer must return to Menzies Art Brands the allegedly unauthentic lot within 14 (fourteen) days of notifying Menzies Art Brands of any lack of authenticity.

No refund will occur if there is any conflict of opinion among accepted experts in the field or if it can be demonstrated that the lot is a forgery only by means of scientific process that could damage or otherwise jeopardise the condition of the lot and which scientific techniques were not commonly employed until after the publication of the catalogue.

This guarantee is for the benefit of the buyer only and cannot be assigned. Such buyer must have remained the owner of the property without disposing of any interest in it to any third party up until the time the alleged forgery was discovered.

16. Export Licence

Any application for an export license by the buyer pursuant to any of the following:

1. The Movable Cultural Heritage Act (1986); and
2. The Wildlife Protection (Regulations of Exports and Imports) Act 1982; and
3. Any other legislation or regulations that may prohibit the movement of or export of a lot from State to State or Territory and/or out of the Commonwealth of Australia;

shall not affect the obligations of the buyer to make payment to Menzies Art Brands within the time stipulated by these conditions. Unless there is an express written agreement by Menzies Art Brands to make an application for an export license on his or her behalf, then all disbursements and out of pocket expenses that relate to such an application shall be to the buyer's account.

17. Privacy of Information

Menzies Art Brands ensures client confidentiality and use of personal information in accordance with its Privacy of Information Policy as stated in this catalogue. Clients when registering to bid or choosing to attend public events held by Menzies Art Brands agree to the collection, use and security of personal information in accordance with the policy.

18. After Auction Sales

Any post auction sale of lots offered at auction shall incorporate these Conditions as if sold in the auction.