Terms and Conditions of Sale
The terms and conditions of sale listed here contain the policies
of Mossgreen Pty Ltd. They are the terms on which Mossgreen
Pty Ltd and the Seller contract with the Buyer. They may be
amended by printed Saleroom Notices or oral announcements
made before and during the sale. By bidding at auction you
agree to be bound by these terms.
1. Background to the Terms used in
these Conditions
The conditions that are listed below contain terms that are used
regularly and may need explanation. They are as follows:
"the Buyer" means the person with the highest bid accepted by
the Auctioneer
"the Lot" means any item depicted within the sale for auction
and in particular the item or items described against any lot
number in the catalogue.
"the Hammer price" means the amount of the highest bid
accepted by the auctioneer in relation to a lot
"the Buyers Premium" means the charge payable by the Buyer to
the auction house as a percentage of the hammer price.
"the Reserve" means the lowest amount at which Mossgreen has
agreed with the Seller that the lot can be sold.
"Forgery" means an item constituting an imitation originally
conceived and executed as a whole, with a fraudulent intention
to deceive as to authorship, origin, age, period, culture or
source, where the correct description as to such matters is not
refl ected by the description in the catalogue. Accordingly no lot
shall be capable of being a forgery by reason of any damage or
restoration work of any kind (Including re-painting).
"the insured value" means the amount that Mossgreen in its
absolute discretion from time to time shall consider the value
for which a lot should be covered for insurance (whether or not
insurance is arranged by Mossgreen.)
All values expressed in Mossgreen Pty Ltd catalogues (in any
format) are in Australian Dollars (AU$). All bids, "hammer price",
"reserves", "Buyers Premium" and other expressions of value are
understood by all parties to be in Australian Dollars (AU$) unless
otherwise specifi ed.
2. Mossgreen Auctions as Agent
Except as otherwise stated Mossgreen Pty Ltd acts as agent for
the Seller.
The contract for the sale of the property is therefore made
between the Seller and the Buyer.
3. Before the Sale
A) EXAMINATION OF PROPERTY
Prospective Buyers are strongly advised to examine in
person any property in which they are interested before
the Auction takes place. Neither Mossgreen nor the Seller
provides any guarantee in relation to the nature of the
property apart from the Limited warranty in the paragraph
below.
The property is otherwise sold "AS IS"
B) CATALOGUE AND OTHER DESCRIPTIONS
All statements by Mossgreen in the catalogue entry for the
property or in the condition report, or made orally or in
writing elsewhere, are statements of opinion and are not
to be relied upon as statements of fact. Such statements
do not constitute a representation, warranty or assumption
of liability by Mossgreen of any kind. References in the
catalogue entry to the condition report to damage or
restoration are for guidance only and should be evaluated
by personal inspection by the bidder or a knowledgeable
representative. The absence of such a reference does not
imply that an item is free from defects or restoration, nor
does a reference to particular defects imply the absence
of any others. Estimates of the selling price should not be
relied on as a statement that this is the price at which the
item will sell or it's value for any other purpose. Neither
Mossgreen nor The Seller is responsible for any errors or
omissions in the catalogue or any supplemental material.
Images are measured height by width (sight size).
Illustrations are provided only as a guide and should not be
relied upon as a true representation of colour or condition.
Images are not shown at a standard scale. Mention is rarely
made of frames (which may be provided as supplementary
images on the website) which do not form part of the lot as
described in the printed catalogue.
An item bought "on Extension" must be paid for in full
before it will be released to the purchaser or his/her agreed
expertising committee or specialist. Payments received for
such items will be held "in trust" for up to 90 days or earlier,
if the issue of authenticity has been resolved more quickly.
Extensions must be requested before the auction.
Foreign buyers should note that all transactions are in
Australian dollars so there may be a small exchange rate
risk. The costs associated with acquiring a good certifi cate
will be carried by the purchaser. If the item turns out to be
forged or otherwise incorrectly described, all reasonable
costs will be borne by the vendor.
C) BUYERS RESPONSIBILITY
All property is sold "as is" without representation or
warranty of any kind by Mossgreen or the Seller. Buyers
are responsible for satisfying themselves concerning the
condition of the property and the matters referred to in the
catalogue by requesting a condition report
No lot to be rejected if, subsequent to the sale, it has been
immersed in liquid or treated by any other process unless
the Auctioneer's permission to subject the lot to such
immersion or treatment has fi rst been obtained in writing.
D) MOTOR CARS & MOTORCYCLES
i) Used motor cars bought at public auction are NOT
covered by a Statutory Warranty under section 54 of
the Motor Car Trader Act 1986. This is also applicable
for motorcycles and commercial vehicles.
The trader, Mossgreen Pty Ltd, has no duty under the
Motor Car Trader Act 1986 to repair or make good any
defects after delivery. There is NO cooling o? period
o? ered for motor cars or motorcycles bought at public
auction.
ii) If the used car is being sold registered and is no
more than 10 years old and has been driven less
than 160,000 km, it is automatically covered by the
Statutory Warranty under section 54 of the Motor Car
Trader Act 1986 for the fi rst 3 months or 5,000 km
after delivery, whichever occurs fi rst.
iii) Roadworthy certifi cates will be supplied only if the
used car or motorcycles is being sold currently
registered. If the vehicle is being sold unregistered
then NO Roadworthy will be provided. Each vehicle
o? ered by Mossgreen at auction will mention in the lot
description which is applicable.
4. At the Sale
A) REFUSAL OF ADMISSION
Mossgreen reserves the right at our complete discretion to
refuse admission to the auction premises or participation in
any auction and to reject any bid.
B) REGISTRATION BEFORE BIDDING
Any prospective new buyer must complete and sign a
registration form and provide photo-identifi cation before
bidding. Mossgreen may request bank, trade or other
fi nancial references to substantiate this registration.
C) BIDDING AS A PRINCIPAL
When making a bid, a bidder is accepting personal liability
to pay the purchase price including the buyers premium and
all applicable taxes, plus all other applicable charges, unless
it has been explicitly agreed in writing with Mossgreen
before the commencement of the sale that the bidder
is acting as agent on behalf of an identifi ed third party
acceptable to Mossgreen and that Mossgreen will only look
to the principal for payment.
D) INTERNATIONAL REGISTRATIONS
All International clients not known to Mossgreen will be
required to scan or fax through an accredited form of photo
identifi cation and pay a deposit at our discretion in cleared
funds into Mossgreen's account at least 24 hours before the
commencement of the auction. Bids will not be accepted
without this deposit. Mossgreen also reserves the right
to request any additional forms of identifi cation prior to
registering an overseas bid.
This deposit can be made using a credit card, however the
balance of any purchase price in excess of $5,000 can not
be charged to this card without prior arrangement.
This deposit is redeemable against any auction purchase.
E) ABSENTEE BIDS
Mossgreen will use reasonable e? orts to execute written
bids delivered to us AT LEAST 24 Hours before the sale for
the convenience of those clients who are unable to attend
the auction in person. If we receive identical written bids on
a particular lot, and at the auction these are the highest bids
on that lot, then the lot will be sold to the person whose
written bid was received and accepted fi rst. Execution of
written bids is a free service undertaken subject to other
commitments at the time of the sale and we do not accept
liability for failing to execute a written bid or for errors or
omissions which may arise. It is the bidder's responsibility
to check with Mossgreen after the auction if they were
successful. Unlimited or "Buy" bids will not be accepted.
F) TELEPHONE BIDS
Priority will be given to overseas and interstate bidders.
Please refer to the catalogue for the Telephone Bids form.
Arrangements for this service must be confi rmed AT LEAST
24 HOURS PRIOR to the auction commencing. Mossgreen
accepts no responsibility whatsoever for any errors or failure
to execute bids. In telephone bidding the buyer agrees to be
bound by all terms and conditions listed here and accepts
that Mossgreen cannot be held responsible for any miscommunications
in the process. The success of telephone
bidding cannot be guaranteed due to circumstances that
are unforeseen. Buyers should be aware of the risk and
accept the consequences should contact be unsuccessful
at the time of Auction. You must advise Mossgreen of the
lots in question and you will be assumed to be a buyer at
the minimum price of 75% of estimate (ie. reserve) for all
Terms and Conditions of Sale 124
such lots. Mossgreen will advise Telephone Bidders who
have registered at least 24 hours before the auction of any
relevant changes to descriptions, withdrawals or any other
sale room notices.
G) ONLINE BIDDING
Mossgreen o ers an online bidding service. When bidding
online the buyer agrees to be bound by all terms and
conditions listed here by Mossgreen.
Mossgreen accepts no responsibility for any errors, failure
to execute bids or any other miscommunications regarding
this process. It is the online bidder's responsibility to ensure
the accuracy of the relevant information regarding bids, lot
numbers and contact details.
H) RESERVES
Unless otherwise indicated, all lots are o ered subject to
a reserve, which is the confi dential minimum price below
which the Lot will not be sold. The reserve will not exceed
the low estimate printed in the catalogue. The auctioneer
may open the bidding on any Lot below the reserve by
placing a bid on behalf of the Seller. The auctioneer may
continue to bid on behalf of seller up to the amount of the
reserve, either by placing consecutive bids or by placing
bids in response to other bidders.
I) AUCTIONEERS DISCRETION
The Auctioneer has the right at his absolute and sole
discretion to refuse any bid, to advance the bidding in such
a manner as he may decide, to withdraw or divide any lot,
to combine any two or more lots and, in the case or error or
dispute and whether during or after the sale, to determine
the successful bidder, to continue the bidding, to cancel
the sale or to reo er and resell the item in dispute. If any
dispute arises after the sale, then Mossgreen's sale record is
conclusive.
J) SUCCESSFUL BID AND PASSING OF RISK
Subject to the auctioneer's discretion, the highest bidder
accepted by the auctioneer will be the buyer and the
striking of his hammer marks the acceptance of the highest
bid and the conclusion of a contract for sale between
the Seller and the Buyer. Risk and responsibility for the
lot (including frames or glass where relevant) passes
immediately to the Buyer.
K) INDICATIVE BIDDING STEPS, ETC.
Mossgreen reserves the right to refuse any bid, withdraw
any lot from sale, to place a reserve on any lot and to
advance the bidding according to the following:
Increment Amount Dollar Range
$20 $0-$500
$50 $500-$1,000
$100 $1,000-$2,000
$200 $2,000-$5,000
$500 $5,000-$10,000
$1,000 $10,000-$20,000
$2,000 $20,000-$50,000
$5,000 $50,000-$100,000
$10,000 $100,000-$200,000
$20,000 $200,000-$500,000
$50,000 $500,000-$1,000,000
Absentee bids must follow these increments and any bids
that don't follow the steps will be rounded up to the nearest
acceptable bid.
5. After the Sale
A) BUYERS PREMIUM
In addition to the hammer price, the buyer agrees to pay
to Mossgreen the buyers premium. The buyer's premium
is 24% of the hammer price plus GST. (Goods and Services
Tax) where applicable.
The buyer's premium for Motor Cars, Motorcycles & Vehicles
Registration Plates is 15% plus GST of the hammer price.
B) PAYMENT AND PASSING OF TITLE
The buyer must pay the full amount due (comprising the
hammer price, buyers premium and any applicable taxes
and GST) not later than 5 days after the auction date.
The buyer will not acquire title for the lot until Mossgreen
receives full payment in cleared funds, and no goods under
any circumstances will be released without confi rmation of
cleared funds received. This applies even if the buyer wishes
to send items interstate or overseas.
Payment can be made by direct transfer, cash (not
exceeding $10,000AUD, if wishing to pay more than
$10,000AUD then this must be deposited directly into a
Bank of Melbourne / St George branch and bank receipt
supplied) and Eftpos (please check the daily limit).
Payments can also be made by credit card in person with
a 1.3% (inc GST) merchant fee for Visa and Mastercard
and 3% (inc GST) for American Express. Invoices that
are in excess of $5,000 and where the card holder is not
present, can not be charged to a credit card without prior
arrangement. Personal cheques are accepted, but funds
must be cleared before goods will be released. Bank
cheques are subject to three days clearance.
The buyer is responsible for any bank fees and charges
applicable for the transfer of funds into Mossgreen's account
C) COLLECTION OF PURCHASES & INSURANCE
Mossgreen is entitled to retain items sold until all amounts due
to us have been received in full in good cleared funds. Subject
to this, the Buyer shall collect purchased lots within 5 days
from the date of the sale unless otherwise agreed in writing
between Mossgreen and the Buyer.
At the fall of the hammer, insurance is the responsibility of
the purchaser.
D) PACKING, HANDLING AND SHIPPING
Mossgreen will be able to suggest removals companies that
the buyer can use but takes no responsibility whatsoever
for the actions of any recommended third party. Mossgreen
can pack and handle goods purchased at the auction by
agreement and a charge will made for this service. All
packing, shipping, insurance, postage & associated charges
will be borne by the purchaser.
E) CULTURAL HERITAGE EXPORT LICENCES
Unless otherwise agreed by us in writing, the fact that the
buyer wishes to apply for an export licence does not a ect
his or her obligation to make full payment immediately,
nor our right to charge interest or storage charges on late
payment. It is the Buyer's responsibility to check Australia's
Protection of Moveable Cultural Heritage Act 1986 before
purchase. If the Buyer requests Mossgreen to apply for an
export licence then we shall be entitled to charge a fee for
this service. We shall not be obliged to rescind a sale nor to
refund any interest or other expenses incurred by the Buyer
where payment is made by the Buyer in circumstances
where an export licence is not granted.
F) REMEDIES FOR NON-PAYMENT
If the Buyer fails to make full payment immediately,
Mossgreen is entitled to exercise one or more of the
following rights or remedies (in addition to asserting any
other rights or remedies available under the law)
i) to charge interest at such a rate as we shall reasonably
decide
ii) to hold the defaulting Buyer liable for the total amount
due and to commence legal proceedings for it's
recovery along with interest, legal fees and costs to the
fullest extent permitted under applicable law
iii) to cancel the sale
iv) to resell the property publicly or privately on such
terms as we see fi t
v) to pay the Seller an amount up to the net proceeds
payable in respect of the amount bid by the defaulting
Buyer. In these circumstances the defaulting Buyer can
have no claim upon Mossgreen in the event that the
item(s) are sold for an amount greater than the original
invoiced amount.
vi) to set o against any amounts which Mossgreen
may owe the Buyer in any other transactions, the
outstanding amount remaining unpaid by the Buyer.
vii) where several amounts are owed by the Buyer to us, in
respect of di erent transactions, to apply any amount
paid to discharge any amount owed in respect of any
particular transaction, whether or not the Buyer so
directs.
viii) to reject at any future auction any bids made by or
on behalf of the Buyer or to obtain a deposit from the
Buyer prior to accepting any bids.
ix) to exercise all the rights and remedies of a person
holding security over any property in our possession
owned by the Buyer whether by way of pledge,
security interest or in any other way, to the fullest
extent permitted by the law of the place where such
property is located. The Buyer will be deemed to have
been granted such security to us and we may retain
such property as collateral security for such Buyer's
obligations to us.
x) to take such other action as Mossgreen deem
necessary or appropriate
If we do sell the property under paragraph (iv), then
the defaulting Buyer shall be liable for payment of
any defi ciency between the total amount originally
due to us and the price obtained upon reselling as
well as for all costs, expenses, damages, legal fees
and commissions and premiums of whatever kinds
associated with both sales or otherwise arising from
the default.
If we pay any amount to the Seller under paragraph (v)
the Buyer acknowledges that Mossgreen shall have all
of the rights of the Seller, however arising, to pursue
the Buyer for such amount.
G) FAILURE TO COLLECT PURCHASES
Where purchases are not collected within 48 hours from the
sale date, whether or not payment has been made, we shall
be permitted to remove the property to a warehouse at the
buyer's expense, and only release the items after payment in
full has been made of removal, storage handling, insurance
and any other costs incurred, together with payment of all
other amounts due to us.
6. Extent of Mossgreen Liability
Mossgreen agrees to refund the purchase price in the
circumstances of the Limited Warranty set out in paragraph 7
below. Apart from that, neither the Seller nor we, nor any of our
employees or agents are responsible for the correctness of any
statement of whatever kind concerning any lot, whether written
or oral, nor for any other errors or omissions in description or for
any faults or defects in any lots. Except as stated in paragraph
7 below, neither the Seller ourselves, our o¡ cers, agents or
employees give any representation warranty or guarantee
or assume any liability of any kind in respect of any lot with
125
regard to merchantability, fi tness for a particular purpose,
description, size, quality, condition, attribution, authenticity, rarity,
importance, medium, provenance, exhibition history, literature or
historical relevance. Except as required by local law any warranty
of any kind is excluded by this paragraph.
7. Limited Warranty
Subject to the terms and conditions of this paragraph, the
Seller warrants for the period of thirty days from the date of
the sale that any property described in this catalogue (noting
such description may be amended by any saleroom notice or
announcement) which is stated without qualifi cation to be the
work of a named author or authorship is authentic and not a
forgery. The term "Author" or "authorship" refers to the creator
of the property or to the period, culture, source, or origin as
the case may be, with which the creation of such property is
identifi ed in the catalogue.
The warranty is subject to the following:
i) it does not apply where a) the catalogue description or
saleroom notice corresponded to the generally accepted
opinion of scholars and experts at the date of the sale or
fairly indicated that there was a confl ict of opinions, or b)
correct identifi cation of a lot can be demonstrated only by
means of a scientifi c process not generally accepted for
use until after publication of the catalogue or a process
which at the date of the publication of the catalogue was
unreasonably expensive or impractical or likely to have
caused damage to the property.
ii) the benefi ts of the warranty are not assignable and shall
apply only to the original buyer of the lot as shown on the
invoice originally issued by Mossgreen when the lot was sold
at Auction.
iii) the Original Buyer must have remained the owner of the lot
without disposing of any interest in it to any third party
iv) The Buyer's sole and exclusive remedy against the Seller
in place of any other remedy which might be available, is
the cancellation of the sale and the refund of the original
purchase price paid for the lot less the buyers premium
which is non refundable. Neither the Seller nor Mossgreen
will be liable for any special, incidental nor consequential
damages including, without limitation, loss of profi ts not for
interest.
v) The Buyer must give written notice of claim to us within
thirty days of the date of the Auction. The Seller shall have
the right, to require the Buyer to obtain two written opinions
by recognised experts in the fi eld, mutually acceptable
to the Buyer and Mossgreen to decide whether or not to
cancel the sale under warranty.
vi) the Buyer must return the lot to Seller in the same condition
that it was purchased.
8. Severability
If any part of these Conditions of Sale is found by any court to be
invalid, illegal or unenforceable, that part shall be discounted and
the rest of the Conditions shall continue to be valid to the fullest
extent permitted by law.
9. Copyright
The copyright of all images, illustrations and written material
produced by Mossgreen relating to a lot including the contents
of this catalogue, is and shall remain the property at all times of
Mossgreen and shall not be used by the Buyer, nor by anyone
else without our prior written consent. Mossgreen and the Seller
make no representation or warranty that the Buyer of a property
will acquire any copyright or other reproduction rights in it.
10. Law and Jurisdiction
These terms and conditions and any matters concerned with the
foregoing fall within the exclusive jurisdiction of the courts of the
state in which the auction is held.
11. Pre-Sale Estimates
Mossgreen publishes with each catalogue our opinion as to
the estimated price range for each lot. These estimates are
approximate prices only and are not intended to be defi nitive.
They are prepared well in advance of the sale and may be subject
to revision. Interested parties should contact Mossgreen prior to
auction for updated pre-sale estimates and starting prices.
12. Sale results
Mossgreen will provide auction results, which will be available
as soon as possible after the sale. Results will include buyer's
premium. These results will be posted at www.mossgreen.com.
au.
13. Goods and Service Tax
In accordance with A New Tax System (Goods and Services
Tax) Act 1999 Mossgreen Auctions will collect on behalf of the
Australian tax o? ce (ATO) a Goods and Service Tax (GST) of 10%
on all applicable transactions.
GST is applicable on the hammer price in the case where the
seller is selling property that is owned by an entity registered
for GST. GST is also applicable on the hammer price in the case
where the seller is not an Australian resident. These lots are
denoted by a dagger symbol † placed next to the estimate.
GST is also applicable on the buyer's premium.
Overseas buyers and buyers non-resident in Australia will not be
charged GST on both hammer price and premiums under the
following conditions:
1. The items are exported through a Mossgreen approved
freight company including Australia Post
2. The items are exported within 60 days of the date of the
sale
The invoice supplied by Mossgreen for purchases will be
regarded as a Tax invoice for GST purposes.
14. Resale Royalty Scheme
Under the legal obligations of the Resale Royalty Scheme for
Visual Artists Act 2009, sellers must provide the following
information to comply with the act:
• was the artwork acquired after 8 June 2010?
• is the sale/reserve price (including GST) $1,000 or more?
• is the artist from Australia or a country listed in the
Regulations to the Act?
• is the artist alive, or deceased less than 70 years?
The seller:
i) acknowledges that he or she understands his or her legal
obligations under the Resale Royalty for Visual Artists Act
2009 (the Act);
ii) undertakes to comply with all requirements of the Act,
including by providing its agent, the company, with accurate
information su? cient for compliance with sections 28 and
29 of the Act;
iii) undertakes to indemnify the company for any loss incurred
by the company as a result of the vendor's failure to comply
with any of the vendor's legal obligations under the Act; and
iv) acknowledges that if he or she fails to comply with any of
his or her legal obligations under the Act, the company may
provide the vendor's name and contact details to Copyright
Agency Limited (CAL).
Lots subject to payment of the Resale Royalty Scheme will be
denoted by the §. The Australian Resale Royalty is a fl at rate
of 5% on the hammer price (including GST). The Australian
Resale Royalty is payable by the buyer in addition to the buyers
premium plus any applicable GST.
