Conditions of Auction and Sale
The terms and conditions of business set forth below are subject to amendment by verbal or written notice prior to and during the auction and sale. They constitute the entire contractual agreement with the buyer in respect to any lot offered at auction.
By bidding at auction in any manner compliant with bidding procedures, the buyer and all bidders agree to be bound by these terms and conditions and the terms of the prospective buyers and sellers guide contained in this catalogue, as amended.
To the extent that an agent acts on behalf of the buyer, liability for obligations arising from these conditions of business will pass to the buyer. Multiple buyers are jointly and severally liable for obligations arising from this agreement.
DEFINITIONS
1. Definition of terms:
a. The 'buyer' refers to the party with the highest accepted bid for any lot at auction and/or such party's principal where bidding as agent.
b. The 'vendor' refers to the party consigning property for sale and/or such party's principal where acting as agent.
c. 'Deutscher and Hackett' refers to Deutscher and Hackett Pty Ltd CAN 123 119 022, its subsidiaries, officers, employees and agents.
d. The 'hammer price' refers to the final bid price (including any GST)
accepted by the auctioneer, or in the case of a post-auction sale, the agreed sale price (including any GST).
e. The 'buyer's premium' refers to the 22.727% charge (plus GST) payable by the buyer calculated as a percentage of the hammer price.
f. 'GST' refers to the goods and services tax imposed by the A New Tax System (Goods and Services) Act 1999 as amended.
g. The 'lot' refers to the item(s) described against any lot number in the catalogue.
h. The 'reserve' refers to the minimum price (including any GST) the consignor will accept for a lot.
i. Invaluable service fee refers to the 5% charge by Invaluable and payable by the buyer calculated as a percentage of the hammer price. If an auction is promoted as a "BP Parity" auction, there will be no Invaluable service fee payable.
PRELIMINARY CONDITIONS AND DISCLAIMER
2. Agency: Deutscher and Hackett acts as agent for the vendor and the contract of sale for the lot will be between the buyer and the vendor.
3. Property is sold 'as is': To the extent permitted by law:
a. no guarantees, warranties or representations are made (express or implied) by Deutscher and Hackett or the vendor in relation to the nature and condition of any lot; and
b. Deutscher and Hackett disclaims liability for any misrepresentations, errors or omissions, whether verbal or in writing, in the catalogue or any supplemental material.
All factual information provided by the vendor is merely passed on by Deutscher and Hackett from the vendor or other source. Deutscher and Hackett has made no attempt to verify this information. All additional statements of opinion represent the specialist opinions of Deutscher and Hackett employees and should not be relied upon as statements of fact.
4. Responsibility to inspect: Responsibility remains with the buyer to satisfy its, his or her self by inspection and evaluation prior to purchase as to the nature and condition of any property.
CONDITIONS AT AUCTION
5. Registration: Bidders must register to bid and if personally attending the auction must obtain a bidder's paddle prior to the commencement of the auction. Registration requires that bidders provide proof of identity and Deutscher and Hackett may impose other obligations on the registration of bidders in its discretion.
6. Auctioneer's discretion: Deutscher and Hackett reserves the right to absolute discretion over the conduct of the auction including the regulation of bidding and its increments. This discretion extends to the challenge or rejection of any bid, the right to withdraw any lot and the right to determine the successful bidder or reoffer a lot in the event of a dispute. The prospective buyers and sellers guide details an indicative process for the conduct of auctions. All parties are strongly urged to read the prospective buyers and sellers guide included in this catalogue.
7. Bidding: Deutscher and Hackett may sell each lot to the highest bidder at auction provided the reserve price has been met or where the net amount accounted to the vendor is at least equivalent to the net amount that would have been achieved for a sale at the reserve price. The fall of the auctioneer's hammer marks the acceptance of the highest bid and the conclusion of a contract for sale between the vendor and the buyer. Unless otherwise agreed in writing with Deutscher and Hackett, the individual physically present at the auction who signals the bid accepts personal liability to pay the purchase price, including the buyer's premium and all additional fees, taxes and charges.
GOODS AND SERVICES TAX
8. Amounts inclusive of GST: Unless otherwise specified, all amounts specified in this section as payable by the buyer, or otherwise used to calculate payment to Deutscher and Hackett, are inclusive of any GST component. Deutscher and Hackett will provide buyers with a tax invoice that meets the requirements of the Australian Taxation Office.
9. Application of GST to buyers: Auctions are conducted on a GST inclusive basis (where GST applies). Buyers are required to pay a 10% GST which sum is:
a. included in the final bid prices where buying from a GST registered vendor (a list of lots consigned by GST Registered Entities is set out in our catalogue); and
b. included in buyer's premiums and any additional fees charged by Deutscher and Hackett.
If a buyer is classified as a "non-resident" for the purpose of GST, the buyer may be able to recover GST paid on the final purchase price if certain conditions are met.
POST-SALE CONDITIONS
10. Post auction private sale: Should the lot fail to sell at auction, Deutscher and Hackett is authorised to sell the lot privately for a period of seven days in which event this agreement shall apply to the relevant buyer to the full extent of its provisions.
11. Payment: The buyer will not acquire title until payment has cleared in full. Interest at a rate of 17.5% p.a. will be charged over outstanding accounts where no extension of terms has been granted. Interest will be payable from the payment due date. With respect to each lot purchased, the buyer agrees to make the following payments within seven days from the date of sale:
a. The hammer price.
b. In exchange for services rendered by Deutscher and Hackett, a buyer's premium calculated at 22.727% (plus GST) of the hammer price.
c. Post sale packing, handling, shipping and storage where applicable.
d. If payment is made via Visa, Mastercard or American Express, any merchant fees payable by Deutscher and Hackett on the transaction as indicated in the prospective buyers and sellers guide.
Payment must be made within seven days of the date of sale in Australian dollars by cash, cheque, direct deposit, approved credit cards or electronic funds transfer using the form and/or trust account details provided at the back of this catalogue. In certain circumstances, extension of payment may be granted at the discretion of Deutscher and Hackett. Once funds have cleared, the proceeds of the sale less the buyer's Premium, GST and any commission or costs charged as agreed will be remitted to the vendor within thirty-five days of the date of sale provided payment has been received in full. Funds will be held in an interest bearing account by Deutscher and Hackett until remitted to the vendor. Deutscher and Hackett will be entitled to any interest earned during this period. Application for a cultural heritage export licence or any other licence in no way affects the buyer's obligation to make payment or collection within the periods specified in sections 10 and 13a.
12. Risk and Title: Risk in the lot, including risk of loss or damage, will pass to the buyer on the earlier of:
a. the date payment is due, whether or not it has been made; and
b. collection by the buyer.
The buyer assumes risk for the property in all respects from this date and neither Deutscher and Hackett nor the vendor will be liable for loss or damage occurring after the payment due date. The buyer is encouraged to make arrangements to ensure comprehensive cover is maintained from this date. Title in the lot does not pass to the buyer, even if the lot is released to the buyer, until the buyer has paid all sums owing to Deutscher and Hackett. If a buyer makes a claim against Deutscher and Hackett for damage or loss after sale, the buyer's premium and the final bid price shall be payable notwithstanding.
13. Freight:
a. The buyer may only remove a lot from the Deutscher and Hackett premises once payment has been cleared in full and must be removed no later than seven days after the date of sale. Should items not be removed by this time, storage and insurance costs may be charged to
the buyer. If a lot has not been collected within 30 days after the date of sale and alternative arrangements have not been with Deutscher and Hackett, the lot may be re-sold by Deutscher and Hackett without reserve at the next auction and Deutscher and Hackett may set off any
amounts owed for storage and insurance costs and its standard commission before remitting the proceeds to the buyer.
Buyers are required to make their own arrangements for packing, handling, shipping and transit insurance for their property. Deutscher and Hackett does not accept responsibility or liability for the acts or omissions of any third party, such as a shipping agent, whether or not such a party has been recommended or suggested by Deutscher and Hackett.
14. Limited Warranty of Authorship: If a buyer is able to establish that a lot is a forgery in accordance with these conditions for sale within five years of the date of sale, the buyer shall be entitled to rescind the sale and obtain a refund of the hammer price from the vendor. The buyer must return the lot in the state in which it was sold within fourteen days of notifying Deutscher and Hackett of the forgery allegations.
For a lot to be established as a forgery, the following conditions must be satisfied:
a. the buyer must supply two independent expert testimonies attesting to the forgery. Deutscher and Hackett is entitled to request further expert evidence where it deems the evidence provided to be unsatisfactory;
b. there must be no conflict of opinion among accepted experts in the field; and
c. the forgery must be able to be proven through means that at the time of publication of the catalogue were commonly employed and that will not damage or otherwise put the lot in jeopardy.
The limited warranty and the right to rescind the sale is not assignable and the buyer must have retained title to the lot without disposing of any interest in it up until the buyer notifies Deutscher and Hackett of the forgery allegations. The buyer acknowledges that it has no rights directly against Deutscher and Hackett if a lot is established to be a forgery.
15. Termination, Breach and Legalities:
a. Deutscher and Hackett breach: To the extent permitted by law, the sole and maximum remedy to a buyer for breach of warranty is a refund of original purchase price, including buyer's premium. In such an event the sale contract shall be rescinded and all costs associated with
returning the property (in the state in which it was sold) to the premises of Deutscher and Hackett are to be borne by the buyer. Deutscher and Hackett is not liable for any indirect or consequential loss or damage for any matter arising directly or indirectly as a result of the sale.
b. Buyer breach: Deutscher and Hackett may, in addition to other remedies available by law, exercise one or more of the following rights or remedies for breach:
i. Cancel the sale and retain any payment or property in Deutscher and Hackett custody as collateral or liquidated damages.
ii. Charge the buyer interest at the rate of 2% above the rate fixed under section 2 of the Penalty Interest Rates Act 1984 (Vic).
iii. Resell the property without reserve at the next auction or privately on five days notice. Any disparity between sale and resale prices, including associated costs such as, but not limited to, legal, storage and sale expenses, will be to the account of the defaulting buyer.
iv. Apply any part payment received from the buyer in respect of any lots at its discretion.
v. Retain any of the buyer's property held by Deutscher and Hackett until the buyer has satisfied its obligations to Deutscher and Hackett.
vi. Take any other action Deutscher and Hackett deems necessary or appropriate.
vii. Refuse to permit the buyer to participate in future auctions.
viii. Provide the vendor with the buyer's details to permit the vendor to take action against the buyer to recover the money.
16. No Refund Policy: Unless otherwise permitted by law or reasons outlined in sections 14 and 15 Deutscher and Hackett do not allow refund of purchase.
17. Governing law and jurisdiction: These terms and conditions and any matters concerned with the foregoing fall within the exclusive jurisdiction of the courts of the country and state in which the auction is held.
18. Severability: In the event that any provisions of this agreement should be found unenforceable in a court of law, that part shall be discounted and the remaining conditions shall continue in full force and effect to the extent permitted by law.
prospective buyers and sellers guide
1. PRIOR TO AUCTION
CATALOGUE SUBSCRIPTIONS
Catalogues can be obtained at Deutscher and Hackett offices or by online subscription (see the Catalogue Subscription Form at the back of this catalogue or online for more information go to www.deutscherandhackett.com).
PRE-SALE ESTIMATES
The price range estimated against each lot reflects the opinion of our art specialists as to the hammer price expected for the lot at auction and is informed by realised prices for comparable works as well as the particularities of each lot including condition, quality, provenance and rarity. While presale estimates are intended as a guide for
prospective buyers, lots can be sold outside of these ranges. Pre-sale estimates include GST (if any) on a lot but do not include the buyer's premium or other charges where applicable.
RESERVES
The reserve is the minimum price including GST (if any) that the vendor will accept for a lot and below which the lot will not normally be sold.
PRE-AUCTION VIEWINGS
In both Sydney and Melbourne pre-auction viewings are scheduled for several days in advance of each auction. Deutscher and Hackett specialists are available to give obligation free advice at viewings or by appointment and prospective buyers are strongly encouraged to thoroughly examine and request condition reports for potential purchases. Pre-auction viewings are open to the public and are free to attend.
SYMBOL KEY
? Unless ownership is clearly stated in the provenance, this symbol is used where a lot is offered which Deutscher and Hackett or an affiliate owns in whole or in part.
In these instances, Deutscher and Hackett has a direct financial interest in the property or means that Deutscher and Hackett has guaranteed a minimum price.
? Used to indicate lots for sale without a reserve.
EXPLANATION OF CATALOGUING PRACTICE AND TERMS
All information published in Deutscher and Hackett catalogues represent statements of opinion and should not be relied upon as fact. All dimensions are listed in centimetres, height before width and are approximate. All prices are in Australian dollars.
ARTIST'S NAMES
All reference to artists make use of common and not full names in accordance with the standards outlined in the National Gallery of Australia reference publication Australian Art: Artist's working names authority list. For instance, John Brack rather than Cecil John Brack; Roy de Maistre rather than Leroy Leveson Laurent De Maistre; Rosalie Gascoigne rather than Rosalie Norah Gascoigne.
Terms used in this catalogue have the meanings ascribed to them below:
a. NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a work
by the artist.
b. Attributed to NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, probably a work by the artist, in whole or in part.
c. Circle of NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a work showing the influence and style of the artist and of the artist's period.
d. Studio/Workshop of NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a work possibly executed under the supervision of the artist.
e. School of NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a work by a follower or student of the artist.
f. Manner of NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a work created in the style, but not necessarily in the period, of the artist.
g. After NICHOLAS CHEVALIER: in the opinion of Deutscher and Hackett, a copy of a work by the artist.
h. "signed" / "dated" in the opinion of Deutscher and Hackett, the work has been signed/dated by the artist.
i. "bears signature" / "bears date" in the opinion of Deutscher and Hackett, the work has possibly been signed/dated by someone other than the artist.
PROVENANCE
Where appropriate, Deutscher and Hackett will include the known provenance, or history of ownership of lots. Non-disclosure may indicate that prior owners are unknown or that the seller wishes to maintain confidentiality.
2. THE AUCTION
Auctions are open to the public and are free to attend. Deutscher and Hackett may exclude any person at any time in its discretion.
REGISTRATION
Bidders must register to bid prior to the commencement of an auction. Deutscher and Hackett may impose other obligations on the registration of bidders in its discretion.
CONDUCT OF AUCTION
Lots are offered for sale on a consecutive basis. Deutscher and Hackett will determine the conduct of the auction in its absolute discretion, including the regulation of bidding. Consecutive or responsive bids may be placed by the auctioneer on behalf of the vendor up to the reserve.
ABSENTEE OR COMMISSION BIDS AND TELEPHONE BIDS
As a courtesy service, Deutscher and Hackett will make reasonable efforts to place bids for prospective buyers in absentia provided written or verbal instructions (as indicated on absentee bid forms included at the back of this catalogue or online) are received 24 hours prior to auction. Where successful, lots will be purchased at the lowest possible bid and in the event of identical absentee bids, the bid received earliest will take precedence. Deutscher and Hackett accepts no responsibility for errors and omissions in relation to this courtesy service and reserves the right to record telephone bids.
RESERVE
Unless indicated otherwise, all lots are subject to a confidential reserve price determined by the vendor. Deutscher and Hackett or the auctioneer may place any number of bids on behalf of the vendor below the reserve price and is not obliged to identify that the bids are being placed on behalf of the vendor.
BIDDING INCREMENTS
Bidding usually opens below the listed pre-sale estimate and proceeds in the following increments (the auctioneer may vary the bidding increments at his or her discretion):
$500 - 1,000 by $50
$1,000 - 2,000 by $100
$2,000 - 3,000 by $200
$3,000 - 5,000 by $200 / $500 / $800
$5,000 - 10,000 by $500
$10,000 - 20,000 by $1,000
$20,000 - 30,000 by $2,000
$30,000 - 50,000 by $2,000 / $5,000 / $8,000
$50,000 - 100,000 by $5,000
$100,000 - 200,000 by $10,000
$200,000 - 300,000 by $20,000
$300,000 - 500,000 by $20,000 / $50,000 / $80,000
$500,000 - 1,000,000 by $50,000
$1,000,000+ by $100,000
SUCCESSFUL BIDS
The fall of the auctioneer's hammer indicates the final bid and the buyer assumes full responsibility for the lot from this time.
UNSOLD LOTS
Where a lot is unsold, the auctioneer will announce that the lot is "bought in", "passed", "withdrawn" or "returned to owner".
3. AFTER THE AUCTION
PAYMENTS
Payment must be made within seven days of the date of sale in Australian dollars by cash, cheque, direct deposit, approved credit cards or electronic funds transfer. If payment is made by credit card the price will increase by any merchant fees payable by Deutscher and Hackett (1.15% (including GST) for Visa and Mastercard and 1.65% (including GST) for American Express). In certain circumstances, extension of payment may be granted at the discretion of Deutscher and Hackett. Cleared funds will be held in an interest bearing trust account by Deutscher and Hackett until remitted to the vendor. Deutscher and Hackett will be entitled to retain any interest earned during this period. Payment by the vendor of any charge to Deutscher and Hackett is to be made within fourteen days of invoice.
PURCHASE PRICE AND BUYER'S PREMIUM
The purchase price will be the sum of the final bid price (including any GST) plus a buyer's premium set at 22.727% (plus GST) of the final bid price. An Invaluable service fee of 5% of the final bid price will also be charged. If an auction is promoted as a "BP Parity" auction, there will be no Invaluable service fee payable. Buyers may be liable for other charges reasonably incurred once ownership has passed.
GOODS AND SERVICES TAX
Auctions are conducted on a GST inclusive basis (where GST applies). GST is payable on some lots. A list of those lots is set out in the catalogue. Buyers are required to pay a 10% G.S.T which sum is:
a. included in the final bid prices where buying from a GST registered vendor; and
b. included in buyer's premiums and any additional fees charged by Deutscher and Hackett.
If a buyer is classified as a "non-resident" for the purpose of GST, the buyer may be able to recover GST paid on the final purchase price if certain conditions are met.
COLLECTION
Lots paid for in full may be collected from Deutscher and Hackett premises the day after the auction occurs but lots paid for by cheque may not be collected until all funds have cleared. Proof of identification is required upon collection and lots not collected within seven days of the sale may incur costs associated with external storage and freight.
LOSS OR DAMAGE
Risk in the lot, including risk of loss or damage, will pass to the buyer on either the date payment is due, whether or not it has been made, or on collection by the buyer, whichever is earlier. The buyer is therefore encouraged to make arrangements to ensure comprehensive cover is maintained from the payment due date.
TRANSPORT AND SHIPPING
Deutscher and Hackett directly offers services including storage, hanging and display, appraisals and valuations, collection management and research and in all instances will endeavour to coordinate or advise upon shipping and handling, insurance, transport, framing and conservation at the request and expense of the client. Deutscher and Hackett does not accept liability for the acts or omissions of contracted third parties.
EXPORT
Prospective bidders are advised to enquire about export licences -- including endangered species licences and cultural heritage permits, where relevant -- prior to bidding at auction. Telephone the Maritime and Movable Heritage Unit on 02 6274 1810 for further information. The delay or denial of such a licence will not be grounds for a rescission of sale.
COPYRIGHT
The copyright in the images and illustrations contained in this catalogue may be owned by third parties and used under licence by Deutscher and Hackett. As between Deutscher and Hackett and the buyer, Deutscher and Hackett retains all rights in the images and illustrations. Deutscher and Hackett retains copyright in the text contained in this catalogue. The buyer must not reproduce or otherwise use the images, illustrations or text without prior written consent.
