Conditions of Sale
All bids and offers to purchase shall be treated as offers made upon the following Conditions of Sale and all persons attending the Sale or bidding at the Sale acknowledge that they have been given notice of such Conditions of Sale.
1. INTERPRETATION - DEFINITIONS
1.1. In these Conditions:
“Auctioneer” means (the selling Agent at each Sale) and includes its officers and agents.
“Purchaser” means the person or corporation to whom any Lot is sold as referred to in Condition 2.
“Vendor” means the person or corporation on whose behalf any Lot is sold by the Auctioneer
“Lot” or “horse” includes gelding, colt or filly.
“Colt” includes rig or cryptorchid, namely male animals in which one or both testes have not descended into the scrotum from the abdomen, however, it is the responsibility of the Vendor to have the Auctioneer announce that the “colt” is a rig or cryptorchid if that be so.
1.2. Where the Purchaser of any Lot comprises more than one person or corporation, these Conditions shall bind each such person or corporation severally and any two or more of such persons or corporations jointly.
1.3. Where any Lot is purchased by a person as an agent for a principal, whether disclosed or undisclosed, such agent shall, without prejudice to the principal’s obligations pursuant to these Conditions, be personally bound to purchase the Lot for the price accepted by the Auctioneer upon these Conditions and the term “Purchaser” shall be construed to mean each of the agent and the principal severally and both the agent and the principal jointly.
2. CONDITIONS OF ENTRY
2.1. No horse will be accepted for entry in the Sale unless such horse has been Freeze Branded and DNA Genotyped or otherwise identified confirming its parentage to the satisfaction of the controlling authority of the place in which the Sale is conducted.
3. UPSET PRICE
3.1. The upset price will be considered the standard reserve price and will be set at $4,000.
Any lot entering the ring that does not attract a bid or meet the upset price will be classified as a vendor buyback for the upset price. A $200 (+GST) flat fee will be payable.
4.1. Vendors may disclose a reserve in lieu of the upset price to the Auctioneer.
There will be a commission rate of 8% + GST on all Lots entering the Sale Ring that achieve either the upset price or disclosed reserve.
If the Vendor chooses to stand with the Auctioneer and authorise the Sale of their Lot below the disclosed reserve, the agreed sale price becomes the new disclosed reserve and the applicable commission will be 8% + GST.
Where a reserve price is disclosed and it is not achieved there will be a flat fee of $200 (+GST).
5. CATALOGUING FEE
5.1. The Cataloguing Fee for the Sale is $250 (including GST). In the event that a vendor elects to withdraw a horse or horses from sale, the Cataloguing Fee is non-refundable, irrespective of whether the withdrawal takes place before or after the catalogue goes to press.
6. CONDUCT OF SALE
6.1. The Vendor may bid personally or through an agent during the sale of each respective lot.
6.2. The highest bidder shall be the Purchaser, but should any dispute arise the Lot shall be immediately put up for Sale at the last undisputed bid or the dispute may be determined by the Auctioneer, whose decision shall be final and biding.
6.3. The Auctioneer shall have the right and absolute discretion to:
• determine who the Purchaser is;
• settle any dispute in such manner as it thinks fit;
• withdraw any Lot before or during the Sale;
• advance the bidding as it thinks fit;
• exclude any persons from the Sale Venue; or
• refuse to acknowledge any bid without giving any reason therefore, and the Auctioneer’s decision shall be final and binding upon all persons;
• bid as an Agent on behalf of a principal.
6.4. Any vendor with a lot passed in at auction may notify staff at the Administration Office of their willingness to negotiate on a Sale.
These lots will be written up on a whiteboard located in the horse stalls area along with their desired Sale Price for potential purchasers to view.
Any Sales successfully negotiated on the day must be immediately reported to staff at the Administration Office and will be processed as Sold lots, with APTS handling the processing and distribution of funds.
APTS takes no responsibility over disputes relating to any Sales negotiated post-auction and not notified immediately to the Auctioneer.
7. VENDOR’S OBLIGATIONS
7.1. The Vendor shall be responsible for the accuracy of any statement, description or particular relating to the horse contained in the Sale Catalogue and shall notify the Selling Agent or Auctioneer of any error, omission or inaccuracy prior to the Sale of the particular Lot.
7.2. The Vendor shall, before the Sale, provide each horse with a proper and secure headstall which shall remain the property of the Vendor. No horse shall be permitted to enter the Sale Ring unless equipped with such headstall and rearing bit.
7.3. Upon delivery of the horse to the buyer the Auctioneer shall provide the horse with a suitable headstall which shall remain the property of the buyer.
7.4. The Vendor guarantees that any horse offered for sale:
• is sold with full and unencumbered title
will not be in foal unless so stated in the Sale Catalogue or by the Auctioneer prior to the Auction of that particular lot;
• is correctly sexed; and
• the horse’s identity is genuine.
7.5. Each horse shall be at the Vendor’s risk as to damage or injury whether by disease, accident or otherwise form the time of delivery to the Selling Agent until the horse has been sold when the risk shall pass to the buyer.
7.6. The Vendor warrants that the horse
• is not broken in and is generally only educated to be handled;
• has no known bone fractures or chips affecting racing soundness;
• is not suffering from founder; and
• has never been nerved.
Any horse offered contrary to this warranty, if its condition is not announced by the Auctioneer or published in the sale catalogue may, at the discretion of the Auctioneer, be returned to the Vendor and the purchase price refunded to the buyer.
7.7. In the case of a return of the horse to the Vendor, as in the preceding condition, the Vendor shall be responsible for and shall pay all proper expenses incurred by the buyer for the care, feeding and transport of the horse from that fall of the hammer until its return to the Vendor.
7.8. Transfer Forms for each horse must be furnished to the Auctioneer by the Vendor an executed transfer before the commencement of each individual sale. The Auctioneer will not offer the horse for sale unless the Vendor has provided the Auctioneer within executed transfer form. 7.9. The Vendor shall closely clip the area of the horse’s freeze brand to enable the horse’s brand to be easily read and shall pay to the Auctioneer any inspection fee charged by or payable to the Auctioneer. The inspection fee may be deducted by the Auctioneer from the proceeds of sale when accounting to the Vendor.
8. RISK AND EXPENSE
8.1. Upon the fall of the hammer each Lot shall be at the risk and expense of the Purchaser and the Purchaser shall indemnify the Auctioneer in respect of and pay to the Auctioneer on demand all loses, damages, costs and expenses incurred or suffered by the Auctioneer in respect of the Lot while the Lot is at the Purchaser’s risk and expense.
8.2. Prior to the fall of the hammer each Lot shall be at the risk and expense in all respects of the Vendor, and the Vendor shall indemnify the Auctioneer in respect of payment to the Auctioneer on demand for all losses, damages, costs and expenses incurred or suffered by the Auctioneer in respect of the Lot while the Lot is at the Vendor’s risk and expense.
8.3. Notwithstanding any other provisions hereof, the Auctioneer shall not be liable for any damage, loss or injury occurring to any Lot or to any person or property caused by any Lot, whether caused by disease, accident, the negligence of the Auctioneer or otherwise and whether the Lot shall be in the custody, control or possession of the Auctioneer or otherwise.
8.4. Any Lot not sold, or in respect of which any Sale is subsequently terminated, shall remain at or revert to the risk and expense in all respects of the Vendor who shall arrange for the removal of the Lot immediately following the Sale.
9. INSPECTION AND EXAMINATION
9.1. All Lots may be inspected at reasonable times prior to sale. Prior to sale, a prospective Purchaser may arrange for a veterinary examination of a Lot with the Vendor. Such examination shall be carried out in the privacy of a stable and may not be carried out in the sale ring or within the public view. The cost of this examination shall be paid by the prospective Purchaser, solely to whom the veterinarian should make his report. The Auctioneer or Vendor may refuse examination.
9.2. Subject to Condition 19, the Purchaser assumes all consequences and risk arising from failure to carry out an inspection or to seek an examination of a Lot.
9.3. Australasian Premier Trotting Sales have the right to refuse entry to any yearling deemed to be inadequately prepared for sale.
9.4. Australasian Premier Trotting Sales will provide a suitably experienced and qualified handler to parade the yearling for sale if required. The vendor is responsible for advising the Auctioneer that they require the use of a handler and accept that the Auctioneer shall incur no responsibility of any loss or damage whilst the yearling is in the care of the handler. No cost will be incurred by the Vendor for the provision of this service.
10. PURCHASE AND PAYMENT
10.1. On the fall of the hammer the Purchaser shall provide his bidder registration number, name and address and the name and address of the principal for whom he bids (if applicable) to the Auctioneer and shall immediately complete, sign and hand to the Auctioneer an acknowledgement of his purchase in such form as shall be required by the Auctioneer and provide to the Auctioneer any such other information in respect of the purchase as the Auctioneer may reasonably require.
10.2. Subject to Condition 11, the full purchase price shall be due and payable to the Auctioneer in Australian currency within one hour of purchase or within such other period of time as the Auctioneer in its absolute discretion may agree, time being the essence, notwithstanding that delivery may not have been made.
10.3. The Auctioneer may in its absolute discretion reject payment otherwise than in cash.
10.4. The Purchaser shall pay to the Auctioneer on demand all collection costs and expenses (including legal costs) incurred in recovering any payment from the Purchaser.
10.5. No rebate shall be allowed to any agent accepting an invoice on behalf of a buyer.
11. CREDIT ARRANGEMENTS
11.1. Purchasers who require credit are to make application to Australasian Premier Trotting Sales before the Sale.
11.2. Purchasers who enter into credit arrangements with Australasian Premier Trotting Sales are required to make payment within 28 days of the Sale. If they default on said credit arrangement the Australian Premier Trotting Sales has the right to enforce the Unpaid Forfeits List rules.
12.1. The Auctioneer shall not be obliged to deliver any Lot to the Purchaser until:
i. the Auctioneer shall have received from the Purchaser full payment of all monies payable by the Purchaser to the Auctioneer pursuant to these Conditions (including the purchase price for the Lot, unless the Auctioneer is satisfied that a prior credit or terms agreement in writing has been made with the Auctioneer or Vendor) or any other agreement, oral or written, entered into between the Auctioneer or Vendor and the Purchaser, and until all bills or exchange tendered in payment have been honoured;
ii. the Purchaser shall have completed signed and delivered to the Auctioneer a delivery slip in such form as shall be required by the Auctioneer;
iii. the Purchaser shall have complied to the satisfaction of the Auctioneer, with all his other obligations in respect of insurance of the Lot pursuant to Condition 14;
iv. where the Purchaser requires the Lot to be delivered to his agent, the Auctioneer has received a written direction from the Purchaser directing the Auctioneer to deliver the Lot to such agent providing that nothing in this Condition shall oblige the Auctioneer to obtain such written authority from an agent prior to delivering any Lot to such agent; and
v. the Purchaser shall remove his Lot from the Sale venue within four (4) hours of the Purchaser receiving delivery of the Lot. The Purchaser shall ensure that the Auctioneer has firstly checked and confirmed the identity of the Lot prior to its removal.
13.1. Where the Auctioneer agrees to deliver any Lot to the Purchaser prior to the Auctioneer receiving from the Purchaser the full purchase price for the Lot, or on the basis of any credit terms agreement made between Australian Premier Trotting Sales and the Purchaser or the Vendor and the Purchaser whether before or after the Sale, the Purchaser shall effect and maintain until such time as Australian Premier Trotting Sales shall have received all monies payable in respect of the Lot or repayable by the Purchaser pursuant to any credit agreement entered into in respect of the purchase of the Lot, at the Purchaser’s cost and expense, insurance satisfactory to Australian Premier Trotting Sales in respect to the damage, injury or death of the Lot from any cause whatsoever and shall ensure that the policy of insurance bears an endorsement as may, in the opinion of the Auctioneer, be necessary to transfer to the Auctioneer and/or the Vendor all the Purchaser’s interest under such insurance absolutely.
14. TITLE OF LOTS
14.1.Title in a Lot shall pass to the Purchaser on the fall of the hammer.
15. DEFAULT BY PURCHASER
15.1. In the event that the Purchaser breaches any of these conditions and fails to remedy such breach within reasonable time after receiving written notice from the Vendor or Auctioneer requiring such breach to be remedied, or all monies payable by the Purchaser to the Auctioneer pursuant to these Conditions shall not have been paid and liquidated by the due date for payment thereof, or where the Auctioneer has, in its discretion, agreed to an extension of the date for payment (in which event time shall be of the essence in respect of such extended date) and the same shall not have been paid and liquidated by such extended date, the Auctioneer or the Vendor may at any time without prejudice to any other rights or remedies which the Auctioneer or Vendor may have at law or in equity and without notice to the Purchaser:-
i. terminate the Sale of the Lot; and/or
ii. immediately retake possession of the Lot and for that purpose the Purchaser hereby irrevocably grants to the Auctioneer and/or Vendor full leave and licence to enter into or upon any premises controlled by the Purchaser upon which the Lot may be or may reasonably be believed to be situated and to use any reasonable force as may be necessary for the purpose of repossessing the Lot, or as agent of the Purchaser to enter upon any other premises upon which the Vendor may enter for the purpose or repossessing the Lot, without notice to the Purchaser and without liability to the Purchaser or any person claiming under the Purchaser; and/or
iii. resell the Lot by auction or private Sale at the risk and expense of the Purchaser and if upon such resale a lower price is obtained than that for which the Purchaser had agreed to buy the Lot, the Auctioneer or Vendor may recover the difference from the Purchaser as a debt due on demand together with interest from the date of Sale to the date of payment; and/or
iv. exercise such other rights and remedies as the Vendor or Auctioneer may have against the Purchaser in respect of the Purchaser’s default including, without limitation, recovering from the Purchaser all costs and expenses incurred in repossessing or attempting to repossess the Lot together with interest thereon and recovering from the Purchaser any expense of Sale, re-Sale, livery, and agistment and Auctioneer commission so incurred; and/or
v. retain any deposit or part payment to the extent of twenty five percent (25%) of the purchase price for the benefit of the Vendor.
16. RIGHTS AND LIABILITIES OF AUCTIONEER
16.1. The Auctioneer is selling any Lot at the Sale as agent for the Vendor whose name is disclosed in the Sales catalogue in respect of the Lot. Further, particulars of the Vendor of any Lot shall be furnished by the Auctioneer immediately upon request. Except, as otherwise expressly provided to the contrary, the Auctioneer has no liability or rights as principal in the capacity of a Vendor.
16.2. In the event of any dispute including without limitation, as to defects in title, misdescription, pedigree, condition or otherwise, the Purchaser and the Vendor shall settle the matter between themselves and the Purchaser shall have no rights against nor return any Lot to the Auctioneer which acts in respect of the Sale as agent for the disclosed Vendor.
16.3. Notwithstanding any representation or action by the Auctioneer which may indicate the contrary, the Auctioneer shall be under no liability to the Vendor in respect of the Purchaser’s failure to complete his purchase in accordance with these Conditions of Sale.
16.4. If the Auctioneer accounts to the Vendor for the purchase price or the balance of the purchase price owed to the Vendor less any monies owed by the Vendor to the Auctioneer, before the purchase price and other amounts payable by the Purchaser have been paid, title to the Lot shall thereupon pass to the Auctioneer, and the Auctioneer shall have the right and remedies under these Conditions as if it were the Vendor.
16.5. The description of all Lots has been provided by the Vendors, and the Auctioneer shall not be liable or responsible for any error whatsoever in the description of the Lot.
16.6. 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 from any payment made by the Auctioneer to the Vendor. As between the Purchaser and the Auctioneer, the Purchaser waives all rights of set off, if any, the Purchaser may have against the Vendor as between the Purchaser and the Vendor.
16.7. The Auctioneer or its servants may sign the Sale Book or any Memorandum of Sale on behalf of either the Vendor or the Purchaser or both.
16.8. The Auctioneer reserves all rights to use or publish details of biddings, the identity of the Vendor and the Purchaser and all matters related to the sale of any Lot as it thinks fit.
16.9. The Selling Agent shall pay to the Vendor the net proceeds of Sale upon the expiration of twenty eight (28) days following the date of sale, provided always that payment shall not be made until:-
i. payment of the purchase price has been made by the Purchaser in full;
ii. delivery of the horse has been taken by the Purchaser;
iii. all registration documents have been completed, signed and delivered to Australasian Premier Trotting Sales; and
iv. transfer of ownership has been fully effected.
16.10. Vendors have the right to more than one bid.
17. CONDITIONS AND WARRANTIES
17.1. Other than for any express conditions, warranties or representations included herein, or as may be implied by Federal or State legislation (including the Trade Practices Act 1974 (Cth) or the Competition and Consumer Act 2010 (Cth)) and which may not be excluded by agreement:
i. all conditions, warranties and representations in respect of a Lot or a Sale are hereby excluded;
ii. no condition, warranty or representations is given or implied or any be inferred from any affirmation made at or before the Sale or any of the circumstances of the Sale; and
iii. the Purchaser acknowledges that, in making any purchase, he is relying solely on his own enquiries and inspection, and that he has not relied or been induced by any statement or representation made by the Vendor or the Auctioneer or by any person purporting to act on their behalf.
18. ROARERS, WINDSUCKERS, WOBBLERS, IMPARED VISION, CRYPTHORCHID (RIG)
18.1. For the purpose of this Condition: “Windsucker” shall mean a Lot which suffers from the vice of noisily drawing in and swallowing air through its mouth; “Wobbler” shall mean a Lot which stands or moves unsteadily or with uncertain direction; “Roarer” shall mean a Lot which suffers from a disease causing it to make a loud noise when breathing under exertion; “Impaired Vision” refers to impaired sight in one or both eyes. “Cyptorchid (Rig)” shall mean a colt in which one or both testes have not descended into the scrotum from the abdomen.
18.2. Should any Lot be a Windsucker, Wobbler, Roarer or Cryptorchid (Rig) or to the knowledge of the Vendor have shown any symptoms of being so, the Vendor shall disclose such fact to the Auctioneer to enable the Auctioneer to disclose such fact to prospective bidders. Any horse that has impaired vision or has been the subject of any procedure specifically referred to under the Australian Rules of Harness Racing which precludes it from racing will NOT knowingly be offered for Sale.
18.3. In the event that any Lot proves within seven (7) days after the Sale to be a Windsucker, Wobbler, Roarer or Cryptorchid (Rig), or to have been sold with impaired vision or having been the subjected to a procedure referred to under the Australian Rules of Harness Racing which would preclude it from racing and;
i. the Purchaser produces to the Auctioneer or Vendor prior written certification obtained at the cost of the Purchaser that the Lot is a Windsucker, Wobbler, Roarer or Cryptorchid (Rig) or has impaired vision or been subjected to a procedure referred to under the Australian Rules of Harness Racing which would preclude it from racing, as the case may be, signed by an independent Veterinarian nominated by the Auctioneer; and
ii. the Auctioneer or Vendor did not disclose at the Sale that the Lot was or showed symptoms of being a Windsucker, Wobbler, Roarer or Cryptorchid (Rig) or having impaired vision or been subjected to a procedure referred to under the Australian Rules of Harness Racing which would preclude it from racing , as the case may be, the Purchaser may terminate his purchase of the Lot by giving the Auctioneer written notice of termination within seven (7) days after the date of Sale provided that the Purchaser shall upon termination at their own cost and expense, return the Lot to the address of the Vendor specified in the Sales catalogue. The decision of the independent Veterinarian nominated by the Auctioneer, shall be final and binding on all parties.
18.4 Where the Purchaser terminates his purchase and returns the Lot to the Vendor pursuant to Condition 18.3, he shall be entitled to a refund from the Vendor of all purchase monies paid in respect of the Lot and upon receiving same shall have no further claim against the Auctioneer or Vendor.
19. UPPER RESPIRATORY LARYNGOSCOPIC EVALUATION
19.1. Notwithstanding any other provision of these Conditions of Sale and notwithstanding any prior custom and usage of the trade, horses which are sold in this Sale may be subject to a post-Sale upper respiratory laryngoscopic evaluation (excluding the trachea) by a veterinary surgeon approved by the Auctioneer obtained at the Purchaser’s expense prior to the horse leaving the Auction venue on the day of the Sale.
19.2. If a veterinary surgeon, so approved, is of the opinion that the horse has any of the following conditions:
i. laryngeal hemiplegia (complete immobility of the cartilage);
ii. rostral displacement of the palatopharyngeal arch;
iii. epiglottic entrapment;
iv. permanent dorsal displacement of the soft palate;
v. severe arytenoid chondritis or chandroma; or
vi. subepiglottic cyst(s)
and this/these condition(s) have not been announced prior to the horse being offered for Sale, then the Purchaser may cancel the Sale.
19.3. Any Purchaser who wishes to have a post-Sale upper respiratory laryngoscopic evaluation, as above, is advised that this examination must be conducted by the veterinary surgeon, so approved, prior to the horse being removed from the Auctioneer’s complex.
19.4. The Auctioneer reserves the right to obtain a confirmatory opinion by a panel of not more than three (3) veterinary surgeons appointed by the Auctioneer at the Purchaser’s expense, before a notice of cancellation of Sale is accepted by the Auctioneer.
20. OCCUPATIONAL HEALTH AND SAFETY
20.1. To the extent that a vendor or a purchaser or their employees or agents may conduct any activities on the premises of the Sale venue then that Vendor or purchaser shall be responsible, to the exclusion of the auctioneer, for establishing and observing appropriate occupational health and safety procedures, and for complying with any relevant legislation provisions, in relation to those activities.
20.2. A vendor or purchaser conducting any actives on the premises of the Sale Venue does so at his own risk in all respects and must indemnify the Auctioneer in respect of any claims for personal injury or damage to property which may be made against the Auctioneer arising out of any such activities.
21.1. The Vendor and the Purchaser for the purpose of enabling the Auctioneer to give full force and effect to these Conditions, each irrevocably appoint the Auctioneer his true and lawful attorney, with full force power in his name or in the name of the Auctioneer to do all things, to take all such action, to sign and execute all such documents, and to give such instructions for the purpose of these Conditions as may be necessary or in the Auctioneer’s opinion desirable, and hereby agree to ratify and affirm anything done by the Auctioneer as such attorney.