1. Introduction

Galeria Aniela and Sellers’ contractual relationship with prospective Buyers is governed by:

(a) these Conditions of Business;

(b) the Conditions of Business of Sellers displayed in the saleroom and which are available on request;

(c) Galeria Aniela Authenticity Guarantee as printed in the sale catalogue; and

(d) any additional notices and terms printed in the sale catalogue, in each case as amended by any saleroom notice or auctioneer’s announcement at the auction.

2. Common Terms

In these Conditions of Business:

‘ABN’ means Australian Business Number as defined in a New Tax System (Australian Business Number) Act 1999 as amended;

‘Australian Resident’ means an Australian resident as defined in the GST Act; ‘Bidder’ is any person considering, making or attempting to make a bid, by whatever means, and includes Buyer; ‘Buyer’ is the person who makes the highest bid or offer accepted by the auctioneer, and includes such person’s principal when bidding as agent; ‘Buyer’s Expenses’ are any costs or expenses due to Galeria Aniela from the Buyer, including GST; ‘Buyer’s Premium’ is the commission payable by the Buyer on the Hammer Price at the rates set out in [the Guide for Prospective Buyers] / clause 14 plus any applicable GST (see Condition 14 regarding GST);  ‘GST Act’ means the goods and services tax imposed by the A New Tax System (Goods and Services Tax ) Act 1999 (Com) (as amended); ‘forgery’ is as defined in Galeria Aniela Authenticity Guarantee; ‘GST’ means a tax payable under the GST Act; ‘Hammer Price’ is the highest bid accepted by the auctioneer by the fall of the hammer, (in the case of wine, as apportioned prorate by reference to the number of separately identified items in that lot), or in the case of a post-auction sale, the agreed sale price; ‘Purchase Price’ is the Hammer Price and applicable Buyer’s Premium and GST; ‘Reserve’ is the confidential minimum Hammer Price at which the Seller has agreed to sell a lot; ‘Resident Agent’ means resident agent as defined in the GST Act; ‘Seller’ is the person offering a lot for sale (including their agent ma be other than Galeria Aniela), executors or personal representatives; ‘Tax Invoice’ means a tax invoice as defined in the GST Act.

3. Ownership

As auctioneer, Galeria Aniela acts as agent for the Seller. A sale contract is made directly between the Seller and the Buyer. Galeria Aniela may own some lots (and in such circumstances acts in a principal capacity as Seller) and/or may have a legal, beneficial or financial interest in a lot as a secured creditor or otherwise.

4. Withdrawal of Property

Galeria Aniela reserves the right to withdraw from sale the property or to have the property listed at any auction.

5. Pre-Sale Estimates

Galeria Aniela publishes with each catalogue an estimated price range for each lot. Any estimate given by Galeria Aniela whether written or oral is a matter of opinion as to the price expected at auction and is intended as a guide only. Estimates are prepared well in advance of auction and are subject to revision. Estimate prices do not include the Buyer’s Premium.

6. Saleroom Notices

Saleroom Notices may be made on lots after the production of a catalogue. Potential Buyers are responsible to acquaint themselves with the changes to the catalogue descriptions after the production of the printed catalogue. Saleroom Notices will be available at reception or in the Saleroom during the auction viewing.

7. Lots Subject to Reserve

All lots may be subject to a reserve price which Galeria Aniela shall act to maintain by bidding through the auctioneer. The reserve is the minimum price the Seller is willing to accept at auction. The auctioneer may place a bid on behalf of the Seller and continue to bid until the reserve is reached. The reserve price is strictly confidential between Galeria Aniela and the Seller and in most cases will not exceed the low pre-sale estimate.

8. Condition of Lots/Property Sold “As Is”

All lots are sold on an “as is” basis. Galeria Aniela makes no representation as to the condition of any lot sold. All property is sold without any warranty or representation. Galeria Aniela is not liable for any errors or omissions in the catalogue. Intending Bidders should always satisfy themselves as to the conditions of any lot prior to bidding or purchase. Bidder’s attention is specifically drawn to Clause 24 (b) of these Conditions of Business.

9. Condition Reports

(a) Prospective Buyers are encouraged to inspect property at presale viewings. If intending Bidders are unable to personally inspect property, solely as a convenience, Galeria Aniela may provide condition reports upon request.

(b) Condition reports are merely statements of opinion and not of fact. Condition reports may be both verbal and written. The opinions expressed in any condition reports are a guide only.

(c) Galeria Aniela’s staff are available during pre-auction viewing time and by appointment to assist prospective buyers in regard to questions regarding particular items or on any aspect of the auction procedure, but any assistance does not alter or have any impact upon obligation of intending Bidders to undertake their own enquiries and inspection and the provisions of Clause 8 prevails.

10. Bidders

Bidders must complete a registration form and supply such information and references as required by Galeria Aniela. Galeria Aniela provides Buyer’s numbers to intending Bidders for bidding at each auction. These are available online and during viewing times prior the auction. The auctioneer will not accept bids from any unregistered bidders.

11. Conduct of Auction

(a) Galeria Aniela has absolute discretion to refuse admission to the auction.

(b) The auctioneer has discretion at any time to refuse any bid, withdraw any lot, re-offer a lot for sale (including after the fall of the hammer) if he believes there may be error or dispute, and take such other action as he reasonably thinks fit.

(c) The auctioneer will commence and advance the bidding at levels and in increments he considers appropriate and is entitled to place a bid or series of bids on behalf of the Seller up to the Reserve on the lot, without indicating he is doing so and whether or not other bids are placed.

(d) Subject to Condition 11(b), the contract between the Buyer and the Seller is concluded on the striking of the auctioneer’s hammer, whereupon the Buyer becomes liable to pay the Purchase Price.

(e) Any post-auction sale of lots offered at auction shall incorporate these Conditions of Business as if sold in the auction.

(f) Bidders act as principal unless they have Galeria Aniela’s written consent to bid as agent for another party. Bidders are personally liable for their bid and are jointly and severally liable with their principal if bidding as agent.

(g) Galeria Aniela recommend all intending Bidders attend the auction but will seek to carry out absentee or telephone bids which are in Australian dollars and, in Galeria Aniela’s opinion, clear and received sufficiently in advance of the sale of the lot, endeavor to ensure that the first received of identical bids has priority.

(h) Where available, written and telephone bids are offered as an additional service for no extra charge, at the Bidder’s risk and are undertaken subject to Galeria Aniela’s other commitments at the time of the auction; Galeria Aniela therefore does not accept any liability for failure to place such bids.

12. Absentee Bidding

Absentee bidding is offered by Galeria Aniela as a complimentary service for the convenience of prospective Buyers who are unable to attend an auction in person. All written instructions for absentee bidding must include the lot number, item description and bid amount together with the prospective Buyer’s name, address and telephone numbers during business hours. Bids can be registered via email (please fill the absentee bidding form). Unlimited bids will not be accepted. In the event of identical bids the first bid received will take precedence. All Buyers are notified when bids are successful and must pay and collect as per Payment, Collections and Storage of Purchases as set out below. Galeria Aniela accepts absentee bids without legal obligation of any kind and will not be held responsible for any losses arising from missed bids.

 CONDITIONS OF BUSINESS

13. Telephone Bidding is not available at his auction.

14. Consecutive and Successive Bidding

The auctioneer may open the bidding on any lot by placing a bid on behalf of the Seller. The auctioneer may further bid on behalf of the Seller, up to the amount of the reserve, by placing responsive or consecutive bids for a lot.

15. Successful Bids

Successful bidders receive an invoice detailing purchases, which may be collected from Galeria Aniela’s premises on the morning following the sale. Successful commission bidders are advised as soon as possible after the sale and given instructions regarding payment and collection of purchases.

16. Buyer’s Remedies

The Buyer acknowledges that Galeria Aniela under no circumstances shall be responsible for any indirect or consequential loss or damage including loss of profits for any acts or omissions that has 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.

17. Purchase Price and Buyer’s Premium

The purchase price of each lot will be the Hammer Price plus a Buyer’s Premium of 5% (including GST).

18. Payment

(a) All items purchased must be paid for in full together with the Buyer’s Premium and any other charges incurred. Unless otherwise agreed, payment of the Purchase Price for a lot and any Buyer’s Expenses are due in Australian dollars immediately on conclusion of the auction (the “Due Date”) notwithstanding any requirements for export, import or other performs for such lot.

The property to be auctioned on a GST inclusive basis. The Hammer Price is inclusive of any GST payable. Galeria Aniela will invoice the Buyer for the Hammer Price and Buyer’s Premium including any applicable GST. Galeria Aniela will account to the Seller the GST payable on the Hammer Price actually recovered from the Buyer. The Seller will be responsible to pay the GST to the Australian Taxation Office.

21. Remedies for Non-Payment

Without prejudice to any rights the Seller may have, if the Buyer without prior agreement fails to make payments for the lot within two working days of the auction, Galeria Aniela may in its sole discretion (having informed the Seller) exercise one or more of the following remedies:

(a) store the lot at its premises or elsewhere at the Buyer’s sole risk and expense;

(b) cancel the sale of the lot;

(c) set off any amounts owed to the Buyer by Galeria Aniela against any amounts owed to Galeria Aniela by the Buyer in respect of the lot;

(d) reject future bids subject to payment of a deposit;

(e) charge interest at 6% per annum above the base lending rate quoted by the Commonwealth Bank of Australia from the due date of payment to the date the Purchase Price and relevant Buyer’s Expenses are received in cleared funds and this interest will be invoiced monthly. If the Buyer fails to pay for the property within seven (7) days, or if extended payment terms have not been granted, penalty interest at the rate of 20% per annum will be charged on the unpaid balance until paid;

(f) exercise a lien over any of the Buyer’s property which is in the possession of Galeria Aniela. Galeria Aniela shall inform the Buyer of the exercise of any such lien and within 14 days of such notice may arrange the sale of such property and apply

the proceeds to the amount owed to Galeria Aniela;

(g) resell the lot by auction or private sale, with estimates and reserves at Galeria Aniela’s discretion. In the event such resale is for less than the Purchase Price and Buyer’s Expenses for the lot, the Buyer will remain liable for the shortfall together with all costs incurred in such resale;

(h) commence legal proceedings to recover the Purchase Price and Buyer’s Expenses for that lot, together with interest and the costs of such proceeding on a full indemnity basis; or

(i) release the name and address of the Buyer to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs. Galeria Aniela will take reasonable steps to notify the Buyer prior to releasing such details to the Seller. Buyers acknowledge this will not be in breach of the Privacy Policy.

22. Collection

(a) The Buyer is obliged to arrange collection of purchased lots within two working days of the auction. Purchased lots are at the Buyer’s risk (and therefore their sole responsibility for insurance) from the earliest of:

(i) collection; or

(ii) two working days after the auction.

(b) Until risk passes, Galeria Aniela will compensate the Buyer for any loss or damage to the lot up to a maximum of the Purchase Price paid.

(c) If the Buyer pays the Purchase Price and Buyer’s Expenses but fails to collect a purchased lot within two working days of the auction, the lot will be held at the Buyer’s expense (and risk) at Galeria Aniela or with a third party.

(d) Items not collected during this time may be placed in storage at the Buyer’s risk and expense and the Buyer shall be responsible for all removal, storage and insurance charges incurred.

(e) If a purchase lot is paid for but not collected within six months of the auction, the Buyer authorises Galeria Aniela, having given or made all reasonable efforts to give notice to the Buyer, to arrange a resale of the item by auction or private sale, with estimates and reserves at Galeria Aniela’s discretion. The proceeds of such sale, less all costs incurred by Galeria Aniela will be forfeited unless collected by the Buyer within two years of the original auction.

(f) For all items stored by a third party and not available for collection from Galeria Aniela’s premises, the supply of authority to release to the Buyer shall constitute collection by the Buyer.

(g) All packing and handling is at the Buyer’s risk. Galeria Aniela will not be liable for any acts or omissions of third party packers or shippers.

(h) Buyers should make their own arrangements for shipping of goods including transit insurance. Galeria Aniela will assist Buyers to identify carriers who will undertake to handle goods at the Buyer’s direction. If Galeria Aniela introduces a Buyer to packers or shippers no recommendation is to be implied.

(i) The Conditions of Business require Buyers to pay immediately for their purchases. However, in limited circumstances and generally with the Seller’s agreement, Galeria Aniela may offer a Bidder it deems creditworthy the option of paying for the purchases on an extended payment term basis. Generally credit terms must be arranged prior to the sale. In advance of determining whether to grant the extended payment terms, Galeria Aniela may require credit references and proof of identity and residence.

23. Duties of Bidders and of Galeria Aniela in Respect of Items for Sale

(a) Galeria Aniela’s knowledge in relation to each lot is partially dependent on information provided to it by the Seller, and Galeria Aniela is not able to and does not carry out exhaustive due diligence on each lot. Bidders acknowledge this fact and accept responsibility for carrying out inspections and investigations to satisfy themselves as to the lots in which they may be interested.

(b) Each lot offered for sale at Galeria Aniela is available for inspection by Bidders prior to the sale. Galeria Aniela accepts bids on lots solely on the basis that Bidders (and independent experts on their behalf, to the extent appropriate given the nature and value of the lot prior to bidding) have satisfied themselves as to both the condition of the lot and the accuracy of the description.

(c) Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All lots are offered for sale in the condition they are in at the time of the auction (whether or not Bidders are in attendance at the auction). Condition reports may be available to assist when inspecting lots. Catalogue descriptions and condition reports on occasions make reference to particular imperfections of a lot, but Bidders should note that lots may have other faults not expressly referred to in the catalogue or condition report. Illustrations are for identification purposes only and will not convey full information as to the actual condition of lots.

(d) Information provided to Bidders in respect of any lot, including estimate, whether written or oral and including information in any catalogue, condition or other report, commentary or valuation, is not a representation of fact but rather is a statement of opinion genuinely held by Galeria Aniela. Any estimate may not be relied on as a prediction of the selling price or value of the lot and may be revised from time to time in Galeria Aniela’s absolute discretion.

(e) No representations or warranties are made by Galeria Aniela or the Seller as to whether any lot is subject to copyright or whether the Buyer acquires copyright in any lot.

(f) Subject to the matters referred to in Conditions 23(a) to 23(e) above and to the specific exclusions contained at Condition 24 below, Galeria Aniela shall exercise such reasonable care when making express statements in catalogue descriptions or condition reports as is consistent with its role as auctioneer of lots in the sale to which these Conditions relate, and with regard to:

(i) the information provided to it by the Seller;

(ii) scholarship and technical knowledge; and

(iii) the generally accepted opinions of relevant experts,

in each case at the time any such express statement is made. 

24. Exclusions and Limitations of Liability to Buyer

(a) Galeria Aniela shall refund the Purchase Price to the Buyer in circumstances where it deems that the lot is a forgery and each of the conditions of the Authenticity Guarantee has been satisfied.

(b) In light of the matters in Condition 23 above and subject to Conditions 24(a) and 24(e), neither any Galeria Aniela nor the Seller:

(i) is liable for any errors or omissions in information provided to Bidders by Galeria Aniela whether orally or in writing, whether negligent or otherwise, except as set out in Condition 23(f) above;

(ii) gives any guarantee or warranty to Bidders and any implied warranties and conditions are excluded (save in so far as such obligations cannot be excluded by law) other than any express warranties given by the Seller to the Buyer in writing.

(iii) accepts responsibility to any Bidders in respect of acts or omissions (whether negligent or otherwise) by Galeria Aniela in connection with the conduct of auctions or any matter relating to the sale of any lot.

(c) Unless Galeria Aniela owns a lot offered for sale, it is not responsible for any breach of these conditions by the Seller.

(d) Without prejudice to Condition 24(b), any claim against Galeria Aniela or the Seller by a Buyer is limited to the Purchase Price with regard to that lot. Neither Galeria Aniela nor the Seller shall under any circumstances be liable for any consequential losses.

(e) None of this Condition 24 shall exclude or limit Galeria Aniela liability in respect of any fraudulent misrepresentation made by Galeria Aniela or the Seller, or in respect of death or personal injury caused by the negligent acts or omission of Galeria Aniela or the Seller.

25. Insurance

(a) Galeria Aniela maintains their own insurance against their personal liability for risks arising from fire, theft following forcible entry and water damage (but not against accidental breakage or damage).

(b) The value of the Goods covered by Galeria Aniela’s policy is restricted to the gross amount realised by sale, or in the case of unsold Goods, the best bid received at auction, or in the case of goods withdrawn or otherwise held prior to a sale, Galeria Aniela’s estimated auction realisation price.

(c) Galeria Aniela’s 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 Galeria Aniela sent by prepaid mail to the Seller’s last known address requiring him to collect the same.

(d) A purchased Lot shall be at the Buyer’s risk in all respects from date payment is due to Seller whether or not payment has been made and neither Galeria Aniela nor the Seller 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 Galeria Aniela’s custody or control at the time of the occurrence of the loss or damage.

(e) Buyers need to arrange for their own “all risks” insurance to cover their purchased goods effective from date for payment to protect their interests as Galeria Aniela cannot warrant that the Seller has insured its interests in the goods or that Galeria Aniela cover will extend to all risks.

(f) Galeria Aniela does not accept responsibility for goods damaged by insect infestation or by changes in atmospheric conditions and Galeria Aniela shall not be liable for such damage nor for any other damage to glass or to picture frames.

(g) If the Lot is damaged or destroyed after sale and Galeria Aniela 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.

26. General

(a) All images and other material produced for the auction are the copyright of Galeria Aniela, for use at Galeria Aniela’s discretion.

(b) Notices to Galeria Aniela should be in writing and addressed to the department in charge of the sale, quoting the reference number specified at the beginning of the sale catalogue. Notices to Galeria Aniela’s clients shall be addressed to the last address formally notified by them to Galeria Aniela.

(c) Should any provision of these Conditions of Business be held unenforceable for any reason, the remaining provisions shall remain in full force and effect.

(d) These Conditions of Business are not assignable by any Buyer without Galeria Aniela’s prior written consent, but are binding on Buyer’s successors, assigns and representatives. No act, omission or delay by Galeria Aniela shall be deemed a waiver or release of any of its rights.

(e) The materials listed in Condition 1 above set out the entire agreement and understanding between the parties with respect to the subject matter hereof. It is agreed that, save in respect of liability for fraudulent misrepresentation, no party has entered into any contract pursuant to these terms in reliance on any representation, warranty or undertaking which is not expressly referred to in such materials.

27. Law and Jurisdiction

(a) Governing Law: These Conditions of Business and all aspects of all matters, transactions or disputes to which they relate or apply shall be governed by and interpreted in accordance with the laws of the state of Australia in which the sale takes place.

(b) Jurisdiction: For the benefit of Galeria Aniela, all Bidders and Sellers agree that the Courts in the State of Australia in which the sale takes place are to have exclusive jurisdiction to settle all disputes arising in connection with all aspects of all matters or transactions to which these Conditions of Business relate or apply. All Bidders and the Buyer agree that Galeria Aniela shall retain the right to bring proceedings in any court other than the Courts of the state of Australia in which the sale takes place.

(c) Service of Process: All Bidders and Sellers irrevocably consent to service of process or any other documents in connection with proceedings in any court by Fax transmission, personal service, delivery by mail or in any other manner permitted by the laws of the state of Australia in which the sale takes place, the law of the place of service or the law of the jurisdiction where proceedings are instituted, at the last address of the Seller known to Galeria Aniela or any other usual address.

28. Export and Permits

(a) The export of any lot from Australia or import into any other country may be subject to the granting by local authorities of one or more export or import licenses, as the case may be. It is the Buyer’s sole responsibility to obtain any necessary export, import, firearm, endangered species or other permit for the lot.

(b) Lots purchased shall be paid for in accordance with the Conditions of Business and the denial of any export or import licenses or any delay in the obtaining of such licenses shall not justify the rescission or cancellation of any sale or any delay in making payment of the total amount due under the Conditions of Business for the lot.

(c) Galeria Aniela and the Seller make no representation or warranties as to whether any lot is subject to export or import restrictions or any embargoes.