These terms and conditions apply to the sale of horses (‘lots’) effected by Capital Property Corporation Pty Ltd (‘Willinga Park’) at auctions and any other sales to which they are stated to apply. A bidder at an auction is taken to have agreed to these terms and conditions before making a bid.
1. Before the Auction
- Willinga Park has appointed The Trustee for Glasser TSM ABN 92 779 699 861 and Elite Livestock Auctions ACN 604 627 607 to conduct the auction on these terms and conditions (together the auctioneer). The auctioneer holds the authority of Willinga Park to carry out its functions in accordance with these terms and conditions.
- Before the auction, any person wishing to bid at the auction must;
- register with Willinga Park; and
- provide payment details satisfactory to Willinga Park.
- Any person bidding at the auction is deemed to be the principal unless, prior to the auction, the bidder provides a written authority to Willinga Park authorizing the person to bid on behalf of another person.
- A lot may be subject to a reserve price.
2. At the Auction
- Subject to applicable law, the auctioneer may bid on behalf of Willinga Park.
- The auctioneer may, in its absolute discretion, refuse to accept any bid.
- The highest bidder for a lot will be the buyer of that lot except;
- if the reserve price is not reached and Willinga Park has not waived the reserve price; or
- Willinga Park withdraws the lot without declaring a reserve price.
- Any person bidding at the auction must clearly display an identifying number when bidding.
- No bids will be accepted or valid after the fall of the hammer unless the auctioneer elects to re-offer the lot for sale.
- Lots are sold on a GST exclusive basis. The buyer must pay to Willinga Park an amount equal to the GST payable on the supply of the lot.
- No gear or equipment is included in the sale of a lot unless specifically identified as such by the auctioneer.
- Immediately after the fall of the hammer, the buyer must provide to the auctioneer:
- the buyer’s name and registered bid number and such other information as may be reasonably be required by Willinga Park; and
- the Property Identification Code of the destination of delivery of the lot.
3. Payment and passing of Title
- As soon as practicable after the fall of the hammer, the buyer must pay:
- the full sale price (plus GST); or
- if approved by Willinga Park in writing prior to the auction, a deposit of 10% of the full sale price.
- Willinga Park will issue a tax invoice to the buyer on receipt of payment.
- Where the buyer has paid a deposit in accordance with condition 3.1(a)(ii), the buyer must pay Willinga Park the full sale price of the lot (less any deposit paid) within 7 days of the auction, unless an alternative arrangement is agreed in writing between Willinga Park and the buyer before the auction.
- Payments must be made:
- in cash;
- by electronic funds transfer to the account nominated by Willinga Park;
- by bank cheque; or
- by credit card (and provided that the buyer agrees that it must pay all associated bank and credit charges).
- Willinga Park may refuse to release the lot in its absolute discretion until the buyer has paid Willinga Park all moneys payable to Willinga Park.
3.2 Title and Risk
- Title to the lot remains with Willinga Park until the buyer pays Willinga Park the full sale price and all other moneys owing in respect to the lot, and notwithstanding any delivery of the lot to the buyer, or the buyer obtaining possession of the lot.
- Once the buyer becomes entitled to the title to a lot Willinga Park and the buyer must execute such documents as are necessary to transfer title to the lot to the buyer. The buyer acknowledges that to receive registration papers for a lot it must be a member of the Australian Stock Horse Society. Willinga Park may retain the registration papers for a lot until all moneys owing to Willinga Park have been paid.
- Despite condition 3.2(a) the sole risk and responsibility for the lot passes to the buyer on the fall of the hammer, including (without limitation) for all loss, expense, injury or damage however caused. The buyer acknowledges that Willinga Park encourages the buyer to insure the lot.
- Unless otherwise agreed in writing between Willinga Park and the buyer, the buyer must (subject to condition 3.1(e)) take delivery of the lot on the day of the auction and remove the lot from the auction site on that day. The buyer is responsible for all expenses associated with the removal and transport of the lot. Until the sale price is paid in full the buyer must keep the lot in good condition and protect it from injury.
- If the lot is delivered to the buyer, and the buyer does not pay the full sale price and all other moneys owing to Willinga Park within the time required by these terms and conditions, Willinga Park may:
- without notice to the buyer, take all reasonably steps including entering onto the buyer’s property to recover possession of the lot; and
- re-offer the lot for sale via auction, public or private sale.
- Any costs or expenses incurred in recovering possession of a lot are a debt payable on demand by the buyer to Willinga Park.
3.3 Fees and Charges
- Without limiting the rights of Willinga Park, an administration fee of $50 per month (or part thereof) (plus GST) will be charged on any amounts owing to Willinga Park which are not paid on their due date.
- Without limiting the obligations of the buyer, if the buyer leaves a lot with Willinga Park for more than 5 days after the auction, the buyer must pay an agistment fee to Willinga Park in the amount and at the time or times required by Willinga Park, as notified by Willinga Park to the buyer.
- If Willinga Park agrees (which it may do at its sole discretion) to deliver a lot to the buyer the buyer must pay all costs of delivery on delivery of the lot.
4. Lots sold as is
- Willinga Park warrants that, to the best of its knowledge, the pedigree information in respect of a lot as disclosed in writing to the buyer by Willinga Park is true and correct.
- Each lot is offered for sale in its present condition, and subject to all faults, imperfections and defects, and the buyer agrees:
- it must make and rely on its own enquiries and investigations;
- it had a reasonable opportunity to inspect the lot before the auction; and
- it relies solely on its own inspection and enquiries in respect to the lot, and does not rely on any statement or representation made by Willinga Park or on its behalf in respect to the lot except as expressly set out in these terms and conditions.
- All conditions, guarantees and warranties express or implied, other than expressly set out in these terms and conditions, are excluded to the extent permitted by law.
If there is any dispute in relation to a bid or sale of a lot, the auctioneer (in its absolute discretion) will settle the dispute. The auctioneer’s decision is final and binding on all parties, and the auctioneer can settle the dispute on any terms the auctioneer deems fit, including (without limitation) electing to re-offer the lot for sale.
6. General Conditions
- If the buyer does not comply with any of these terms and conditions prior to the transfer of title of the lot to the buyer Willinga Park may, at its discretion and without limiting its other rights, terminate the sale of the lot and the lot may be re-offered for sale via auction, public or private sale. Willinga Park will also be entitled to keep any deposit paid by the buyer.
- If Willinga Park re-offers the lot for sale:
- the buyer is liable for all costs and expenses incurred in re-offering the lot for sale; and
- Willinga Park is not required to notify the buyer of the sale; and
- the buyer must pay to Willinga Park any delivery on resale.
- Condition 6(a) does not in any way limit the rights of Willinga Park in connection with a breach by the buyer of any of these terms and conditions.
- These terms and conditions may not be:
- waived except in writing signed by Willinga Park; and
- varied except in writing signed by the parties to be bound.
7. Limitation of liability
7.1 Willinga Park as trustee
Willinga Park enters into these terms and conditions only in its capacity as trustee of the Carrington Trust and in no other capacity. A liability arising under or in connection with these terms and conditions, or otherwise in connection with the sale of a lot, can be enforced against Willinga Park only to the extent to which it can be satisfied out of property of the Carrington Trust out of which Willinga Park is actually indemnified for the liability.
7.2 Claims against Willings Park
A buyer may not sue Willinga Park personally or seek the appointment of a liquidator, administrator, receiver or similar person to Willinga Park or prove in any liquidation, administration or arrangement of or affecting Willinga Park.
8. Governing Law
These terms and conditions are governed by the law in force in the State or Territory in which the auction is located. Each party submits to the non-exclusive jurisdiction of the courts of that place.
9. Statutory notices
Property, Stock and Business Agents Act 2002 Warnings
It is an offence against the Property, Stock and Business Agents Act 2002 for a person to do any of the following as a result of a collusive practice, or to induce or attempt to induce another person by a collusive practice to do any of the following:
- to abstain from bidding; or
- to bid to a limited extent only; or
- to do any other act that might prevent free and open competition.
Severe penalties may be imposed on persons convicted of collusive practices.
The auctioneer has the right to make one bid on behalf of Willinga Park if the auctioneer clearly and precisely announces that fact prior to the sale.
It is an offence against the Property, Stock and Business Agents Act 2002 for a person to do any of the following:
- make a bid as the seller,
- make a bid on behalf of the seller (unless the person is the auctioneer),
- procure another person to make a bid on behalf of the seller.
Any bid made with the dominant purpose of benefiting the seller constitutes a bid made on behalf of the seller.
A bid may be found to be a bid made on behalf of the seller even though the seller did not:
- request the bid, or
- have any knowledge of the bid.
Severe penalties may be imposed on persons convicted of dummy bidding.
The actual successful bidder at an auction sale must give to the auctioneer or an employee of the auctioneer:
- the bidder’s name or
- the name of the person on whose behalf the successful bid was made.