Terms of trade

Auction Terms and Conditions

THE NEW ZEALAND STOCK & STATION AGENT’S ASSOCIATION

CONDITIONS OF SALE


The conditions of sale set out below shall be binding upon both Vendor and Purchaser in all transactions entered into at this place whether by auction, private contract or otherwise. They shall be so binding notwithstanding that they may not be read aloud at any stage and whether or not any announcement is made concerning them at any time during which business is being transacted.

1. Definitions

In these Conditions of Sale unless the context otherwise requires:

“Auctioneer” means the company, firm or person whose license to sell by auction is held by the person conducting the sale as Auctioneer, unless the context shows that is intended to mean only the person conduction this sale as Auctioneer in his personal capacity.

“GST” means goods and services tax pursuant to the Goods and Services Tax Act 1985.

“Saleyards” means the place where the Auctioneer sells or attempts to sell Stock by auction or otherwise

“Stock” means and includes both live and dead livestock and chattels.

“Purchase Price” means either:
(a) Where the Auctioneer has announced the conditions of sale to be inclusive of GST in respect of the relevant lot or group of lots, the price which was bid by the successful bidder or;

(b) Where the Auctioneer has announced the conditions of sale to be exclusive of GST in respect of the relevant lot or groups of lots, or where the Auctioneer has made no such announcement, the price which is bid by the Purchaser plus the amount of GST thereon at the applicable rate.

“Purchaser” means the successful bidder for the relevant lot or groups of lots of Stock at the auction.

“Vendor” means the owner of the Stock that is the subject of the relevant lot or group of lots sold by auction by the Auctioneer.

Words importing the singular shall include the plural and vice versa and the masculine includes the feminine.

2. Dispute

In the event of any dispute arising with respect to a successful bid the Stock shall be auctioned again and resold or otherwise settled at the sole discretion of the Auctioneer and his decision shall be binding on all parties.

3. Refusal of Bids

The Auctioneer expressly reserves the right to refuse to accept any bids. No person shall make an advance in bidding by an amount less than an amount from time to time nominated or directed by the Auctioneer.

4. Vendors Bid

There shall be no fictitious bidding and the Vendor reserves the right to one bid only. Such Bid if given shall be known as the “Upset Price”.

5. Right of Refusal

The last and highest unsuccessful bidder shall have the right of refusal at the Upset Price of a passed-in lot and such right must be exercised before the next lot is offered for sale by the Auctioneer.

6. Binding the Purchaser

Every person bidding shall be deemed to authorise the Auctioneer or the clerk of the Auctioneer to sign the sale book or memorandum of agreement on his behalf as Purchaser, and the signing by the clerk or the Auctioneer shall be as binding upon the Vendor and Purchaser as if the signing was by the Purchaser himself. Provided also that every person bidding shall be deemed to be bidding as a principal and the person who is the Purchaser shall be and remain responsible for the payment of the Purchase Price notwithstanding any subsequent disclosure of agency or any acceptance or acknowledgement of that agency by the Auctioneer.

7. No Guarantee, Warranty or Condition

No guarantee, warranty or condition shall be given with respect to any Stock sold under these conditions as to sex, age, condition, description, title or otherwise howsoever, nor shall any guarantee, warranty or condition be implied from any affirmation or statement made at the time of the sale, or from any of the circumstances of the sale. But in all cases where a guarantee, warranty, or condition is intended, the same shall attach and be enforceable only if reduced to writing before delivery of the Stock and signed by the Vendor or by the Auctioneer acting as agent for the Vendor, and the absence of such writing shall be conclusive evidence in case of dispute that no guarantee, warranty or condition was given or intended.

8. Error or Misdescription

If any error or misdescription is made as to title, age, number, sex, condition or in any other particulars of any Stock offered for sale, the same shall not annul the sale, but such compensation shall be allowed to the Purchaser by the Vendor as the Auctioneer, acting as arbitrator for both parties, shall in the sole discretion of the Auctioneer determine. The Auctioneer is to be considered merely the agent between Vendor and Purchaser and in all disputes arising from any defect of title, wrong description, warranty or otherwise, the Purchaser and the Vendor must adjust the matter between themselves should they be unwilling to accept the arbitration of the Auctioneer, and no lot is to be returned to the Auctioneer.

The liability for compensation shall in all cases be limited to a figure no greater than the Purchase Price paid or to be paid by the Purchaser.

9. Vendor Details

The name, description, and address of the Vendor, as given by the Vendor, will in all cases be furnished to a bidder or Purchaser if required, and in case of any dispute the remedy of the Purchaser shall be against the Vendor only, and in no case or under any circumstances against the Auctioneer. Who is to be regarded to all intents and purposes as agent for a disclosed principal.

10. Payment in Cash

Conditions are cash on the fall of the hammer unless the Auctioneer shall prior to the putting up of any lot otherwise specify. Insofar as the terms of the Personal Property Securities Act 1999 do not apply the property in the Stock purchased shall not pass to the Purchaser until payment of the Purchase Price (including interest under Clause 12) is made in full by the Purchaser.

Each lot in all cases shall, immediately on the fall of the hammer, be at the risk of the Purchaser, who must remove the same from the place of the auction within the time specified by the Auctioneer.

In the event of either Vendor or Purchaser or both being absent at time of delivery, the Auctioneer or any authorised employee of the Auctioneer shall be deemed to have been authorised to tally the Stock sold, and his figures are to be accepted as final by all parties.

Should Stock be removed by the Purchaser or his agent without authority, the Purchaser shall be liable for the numbers of Stock as entered in the Auctioneer’s book.

No Purchaser shall be entitled to withhold payment for pedigree Stock pending execution and delivery by the Vendor of Transfer of the same registerable in the Stud Book and the remedy of the Purchaser on failure to receive such registerable transfer shall lie against the Vendor alone and not the Auctioneer.

The Vendor and the Auctioneer agree that all Stock which is sold pursuant to paragraph (b) of the definition of “Purchase Price” shall be subject to GST pursuant to the provisions of Section 60(5) of the Goods and Services Tax Act 1985, irrespective of whether GST would otherwise be payable in respect of the sale of Stock.

11. Stock Delivery

Except as provided in this paragraph. No Stock shall be delivered to anyone except for cash.

Where a Purchaser satisfies the Auctioneer that he has made some suitable arrangement for payment of the Purchase Price or any part thereof either with the Auctioneer who in respect of the making of such arrangement acts not in his capacity as agent of the Vendor, but as the Purchaser’s Stock & Station Agent, or with another Stock & Station Agent, the Auctioneer may deliver any Stock to the Purchaser without payment in full for such Stock and the Purchaser shall be deemed to have requested and authorised the Auctioneer for, or on account of the Purchaser, to pay the Purchase money in full to the Vendor or credit the Vendor therewith, and to debit the Purchaser’s account with the Auctioneer or the Purchaser’s Stock & Station Agent as the case may be with the Purchase Price or such part thereof as shall hot have been paid by the Purchaser, but it shall not be obligatory on the Auctioneer to do so, and if the Auctioneer does so, the Auctioneer my, if the Auctioneer thinks fit, deduct the Auctioneer’s selling commission and charges when paying the Purchase Price to the Vendor.

12. Purchasers Debt

Subject to any special arrangements that me be made in respect of any lot between the Vendor and the Purchaser, the Auctioneer (in addition to all other rights and remedies of the Auctioneer express or implied, and not withstanding that the Sale Book or Memorandum of Agreement may have been signed by the Auctioneer or the Clerk of the Auctioneer on behalf of or as agent for the Purchaser) shall be entitled to recover from the Purchaser as a debt due on demand due by the Purchaser to the Auctioneer the full amount of the unpaid Purchase Price together with interest calculated from the date of sale plus GST (if any thereon) until payment in full is made by the Purchaser. Such interest shall be considered as accruing from day to day at such rate for the time being charged by the Auctioneer on overdue accounts and any such interest money remaining unpaid on the dates observed by the Auctioneer for the capitalization of interest shall thenceforth itself carry interest in like manner as the unpaid Purchase Price and shall thenceforth be deemed part of the unpaid Purchase Price. The current interest rate and the dates for capitalization of interest (if any) shall be advised to the Purchaser on request.

The rights and remedies of the Auctioneer under these conditions shall not be affected by reason of the selling commission and charges of the Auctioneer having been deducted by the Auctioneer in any payment made by the Auctioneer to the Vendor, and as between the Purchaser and the Auctioneer, the Purchaser waives all rights of set off, if any, the Purchaser as between the Purchaser and the Vendor may have against the Vendor.

13. Failure to Complete Purchase

Should the Purchaser fail to complete the purchase in any way, it shall be lawful for the Vendor or the Auctioneer on the Vendor’s behalf with notice to cancel the sale, and to enter on the property where the Stock are situated and retake possession of the Stock bought by the Purchaser, or without any notice whatever to the Purchaser to resell the Stock bought by the Purchaser, wither privately or by an auction at the Purchaser’s risk and expense (including but not limited to all costs associated with the recovery or attempted recovery of outstanding moneys and the enforcement of these sale conditions and solicitor/client costs of the auctioneer and/or the Vendor), and any loss (including any GST imposed in respect of the sale and resale) on such resale shall be recoverable by the vendor or by the Auctioneer from the Purchaser as a debt due upon demand together with interest calculated from the date of sale until payment in full at such rate for the time being charged by the Auctioneer on overdue accounts as at the date of sale such rate of interest to be advised to the Purchaser on request. The said Purchaser shall not be entitled to any surplus on such resale as aforesaid.

14. Auctioneers Liability

The Auctioneer shall be under no liability for any loss incurred by the Vendor by reason of the failure on the part of the Purchaser to complete the purchase.

15. Care of Stock

All expenses for feed, drover’s fees, cartage and other expenses incurred by the Auctioneer on behalf of the Purchaser or Vendor for the care, maintenance and transit of Stock purchased or sold shall be at the expense in all things of the Purchaser or Vendor (as the case may be) and may be recovered by the Auctioneer from the Purchaser or Vendor (as the case may be) as a debt due upon demand together with interest calculated from the respective dates on which such expenses were incurred until payment in full at such rate for the time being charged by the Auctioneer on overdue accounts as at the date or respective dates on which such expenses were incurred, such rate of interest to be advised to the Purchaser on request. The Purchaser or Vendor, as the case may be, shall also be liable for any GST payable in respect of payments due under this Clause.

16. Purchasers Agent

The Purchaser agrees with the Auctioneer that any drover or other person to whom delivery of Stock may be given, nominated or appointed by the Purchaser, or by the Auctioneer purporting to act on behalf of the Purchaser, shall for all purposes be deemed to be the servant of the Purchaser, and the Auctioneer shall not be in any way liable or responsible for any claims for compensation by any drover.

17. Unsold Stock

Any stock not sold shall be at the risk of the Vendor, and the Auctioneer shall not be responsible to the Vendor for any loss to the
Vendor, in respect of any Stock not sold. The Vendor agrees with the Auctioneer that any drover or other person to whom return of Stock to the Vendor may be given, nominated or appointed by the Vendor or by the Auctioneer purporting to act on behalf of the Vendor in the event of such Stock not being sold, shall for all purposes be deemed to be the servant of the Vendor and the Auctioneer shall not be in any way liable or responsible for any act or omission of such drover or other person and the Auctioneer will not be responsible for any claims by such drover or other person for compensation for accident arising out of the return of such stock. The provisions of Clause 19 hereof shall apply in connections with Stock not sold substituting the “Vendor” for the word “Purchaser” throughout Clause 19.

18. Sale after Auction

Any stock not sold at the auction may be sold privately before removal from the Saleyards, and these conditions shall apply to such sales. Not withstanding that the auction sale may have been concluded, the Auctioneer shall continue to be agent for the Vendor in such sales, and the signing of the Purchaser’s name in the Auction Sale Book on behalf of the Purchaser by the Auctioneer or the clerk of the Auctioneer shall constitute as binding an agreement for sale and purchase between Vendor and Purchaser as if such Stock were sold at auction, and the Auctioneer shall be entitled to be paid the selling commission and charges of the Auctioneer in all respects as if such Stock had been actually sold at the auction, pursuant to these conditions.

19. Purchaser Risk

The Purchaser agrees that notwithstanding any instructions or directions given by him to the Auctioneer or any servant of the Auctioneer as to the method or time of trucking, holding, feeding, watering or otherwise tending any Stock for any period, or as to the route to be followed by any driven or trucked Stock, or the numbers of drovers to be employed, the Stock shall so remain at the Purchaser’s risk, and no liability whatever shall attach to the Auctioneer or any servant of the Auctioneer for any loss or damage occasioned to such Stock. The Auctioneer or any responsible servant of the Auctioneer shall be at liberty at his discretion if in his opinion it is desirable or imperative in the interests of the Purchaser or for the benefit of any Stock so to do to disregard, vary or modify entirely or partly the directions or instructions of the Purchaser or any of them, and adopt other procedures altogether or in part, in any such event the decision of the Auctioneer or any responsible servant of the Auctioneer shall be final and binding, and neither the Auctioneer nor any of his servants shall be liable to the Purchaser for any damage or loss incurred by the Purchaser consequent on the carrying out, disregard, variation or modification of his instructions or directions.

20. Goods and Services Tax Act 1985

The Auctioneer and not the Vendor, shall issue any tax invoice, credit note or debit note as required under the Goods and Services Act 1985. As a precondition to the Auctioneer selling the Stock, the Vendor shall provide the Auctioneer with the GST registration number of the Vendor together with such other information relating to the GST registration of the Vendor as the Auctioneer may require.

21. Risk at Saleyards

Every person attending the sale or entering the Saleyards shall do so at his own risk, and the Auctioneer shall not be liable in any way or responsible for any accident whatsoever to any such person.

22. Supply for Business Purposes

Where these conditions may otherwise be subject to the provisions of the Consumers Guarantees Act 1993 (“the Act”) the Purchaser agrees that the Stock is supplied to the Purchaser for business purposes and the provisions of the Act do not apply.

23. Personal Property Securities Act 1999

In the event that the Personal Property Securities Act 1999 (the “PPSA”) applies to the Stock or the Purchasers purchase of the Stock, then the Purchaser will promptly execute any document required by the Auctioneer or the Vendor to ensure that charges created under or pursuant to these conditions constitute a perfected security interest (as that term is defined in the PPSA, including but not limited to security documents) and shall provide all information that the Auctioneer or the Vendor reasonably requires to complete a Financing Statement and to satisfy the legal requirements of the PPSA.

The Purchaser shall not consent to any person filing a Financing Statement (as the term is defined in the PPSA) without the prior consent of the Auctioneer or the Vendor (where the Auctioneer of the Vendor is entitled to file their own Financing Statement) and at any time notify the Auctioneer or the Vendor immediately that the Purchaser becomes aware of any person taking steps to file a Financing Statement against the Stock.

24. Application of Conditions

These Conditions of Sale will apply to all sales conducted by members of the local constituted Stock & Station Agents Association which is a member of the New Zealand Stock & Station Agents’ Association.

The Purchaser acknowledges that these conditions shall apply to the sale of the Stock and shall prevail despite any indication to the contrary by any person acting or purporting to act on the Auctioneers behalf. A Purchaser must therefore obtain written confirmation from the Auctioneer of any variation to these express conditions.

25. Notices

All notices or demands required pursuant to these conditions shall be in writing and shall be deemed to have been properly given if delivered in person, mail or sent by facsimile transmission to the recipient at the address the parties furnish to each other. A notice sent by mail shall be deemed to be received by the recipient 45 hours after posting. A notice sent by facsimile (providing the sending facsimile machine produces a printout of time, date and transmission report) shall be deemed to have been received by the recipient immediately upon successful transmission.

1 August 2005
Copyright
New Zealand Stock
& Station Agents Association