Important Estate Auction Sale & Asian Art

The terms and conditions of sale listed here contain the policies of Smorgon Pty Ltd. They are the terms on which Smorgon Pty Ltd and the Seller contract with the Buyer. They may be amended by printed 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 Smorgon Pty Ltd 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 reflected 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). All values expressed in Smorgon 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 specified. 2. Smorgon Pty Ltd Auctions as Agent Except as otherwise stated Smorgon 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 Smorgon Pty Ltd 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 Smorgon Pty Ltd 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 Smorgon Pty Ltd 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 Smorgon Pty Ltd 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. 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 certificate 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 Smorgon Pty Ltd 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 first been obtained in writing. 4. At the Sale a) Refusal of Admission Smorgon Pty Ltd 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 when registration before bidding, Smorgon Pty Ltd may request bank, trade or other financial 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 Smorgon Pty Ltd before the commencement of the sale that the bidder is acting as agent on behalf of an identified third party acceptable to Smorgon Pty Ltd and that Smorgon Pty Ltd will only look to the principal for payment. d) Online Bidding Smorgon Pty Ltd offers an online bidding service via LiveAuctioneer.com. When bidding online the buyer agrees to be bound by all terms and conditions listed here by Smorgon Pty Ltd and agrees to pay any fees charged in regard to any purchases made via LiveAuctioneer.com, and this is 5% of the Hammer price to be added to the final amount payable to LiveAuctioneer.com Smorgon Pty Ltd 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. e) Reserves Unless otherwise indicated, all lots are offered subject to a reserve, which is the confidential 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. f) 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 re-offer and resell the item in dispute. If any dispute arises after the sale, then Smorgon Pty Ltd's sale record is conclusive. g) 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. h) Indicative Bidding steps, etc. Smorgon Pty Ltd 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 LiveAuctioneers discretion. 5. After the Sale a) Buyers Premium In addition to the hammer price, the buyer agrees to pay to Smorgon Pty Ltd the buyer's premium. The buyer's premium is 15% of the hammer price plus GST. (Goods and Services Tax) where applicable. b) Payment and passing of title The buyer must pay to the company account the full amount due (comprising the hammer price, buyer's premium and any applicable taxes and GST) not later than 7 days after the auction date. The buyer will not acquire title for the lot until Smorgon Pty Ltd receives full payment in cleared funds, and no goods under any circumstances will be released without confirmation of cleared funds received. This applies even if the buyer wishes to send items interstate or overseas. Payment can be made by direct transfer, Eftpos (please check your daily limit)and credit card in person (up to AU$5,000) with a 1.3% (inc GST) merchant fee for Visa and Mastercard. Credit card payments where the card-holder is not present, can not be accepted unless a scanned image of the card and signature is supplied (that corresponds with the supplied signature on the bidding or registration forms) and this is at the discretion of Smorgon Pty Ltd. The buyer is responsible for any bank fees and charges applicable for the transfer of funds into Smorgon Pty Ltd's Company Account. c) Collection of Purchases & Insurance Smorgon Pty Ltd 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 14 days from the date of the sale unless otherwise agreed in writing between Smorgon Pty Ltd and the Buyer. At the fall of the hammer, insurance is the responsibility of the purchaser. d) Packing, Handling and shipping Smorgon Pty Ltd will be able to suggest national and international carriers and takes no responsibility whatsoever for the actions of any recommended third party carrier. Smorgon Pty Ltd will take no responsibility for damage. 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 affect 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 Smorgon Pty Ltd 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, Smorgon Pty Ltd 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 fit 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 Smorgon Pty Ltd in the event that the item(s) are sold for an amount greater than the original invoiced amount. vi) to set off against any amounts which Smorgon Pty Ltd 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 different 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 Smorgon Pty Ltd deem necessary or appropriate If we do sell the property under paragraph (iv), then the defaulting Buyer shall be liable for payment of any deficiency 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 Smorgon Pty Ltd 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 21 days 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 Smorgon Pty Ltd Liability Smorgon Pty Ltd 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 officers, agents or employees give any representation warranty or guarantee or assume any liability of any kind in respect of any lot with regard to merchantability, fitness 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 qualification 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 identified 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 conflict of opinions, or b) correct identification of a lot can be demonstrated only by means of a scientific 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 benefits 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 Smorgon Pty Ltd 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 Smorgon Pty Ltd will be liable for any special, incidental nor consequential damages including, without limitation, loss of profits 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 field, mutually acceptable to the Buyer and Smorgon Pty Ltd 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 Smorgon Pty Ltd relating to a lot including the contents of this catalogue, is and shall remain the property at all times of Smorgon Pty Ltd and shall not be used by the Buyer, nor by anyone else without our prior written consent. Smorgon Pty Ltd 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 Smorgon Pty Ltd 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 definitive. They are prepared well in advance of the sale and may be subject to revision. Interested parties should contact Smorgon Pty Ltd prior to auction for updated pre-sale estimates and starting prices. 12. Goods and Service Tax In accordance with A New Tax System (Goods and Services Tax) Act 1999 Smorgon Pty Ltd Auctions will collect on behalf of the Australian tax office (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 Smorgon Pty Ltd approved freight company including Australia Post 2. The items are exported within 60 days of the date of the sale The invoice supplied by Smorgon Pty Ltd for purchases will be regarded as a Tax invoice for GST purposes. 13. 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 sufficient 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 flat 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. Buyers Premium A Buyers Premium of 15% is applied to the hammer price when an item is sold plus 5% (LiveAuctioneer.com Online Bidding Fee) and GST (10%) is applicable to the hammer price amount only. The GST amount can only be deducted if the purchaser resides outside of Australia and the goods are shipped within 30 days. There is no GST on the Hammer price unless denoted in the catalogue. Condition Reports Condition reports and advisable and are available upon request. Please email info@Smorgonauction.com Payment Options Smorgon Pty Ltd prefers wire transfer payments to the Company Account details provided with the payment information sent with your invoice. Credit card payments can only be accepted in person or over the telephone/internet with an image of the card, and the cardholders signature that matches the signature on the provided photo identification. Cash is not accepted due to current COVID restrictions as we are currently operating as a Click and Collect business. Shipping Terms Smorgon Pty Ltd could recommend Pack and Send for all shipping for this Auction. GST GST (10%) is applicable to the hammer price amount only. The GST amount can only be deducted if the purchaser resides outside of Australia and the goods are shipped within 30 days. There is no GST on the Hammer price unless denoted in the catalogue. The Artist Resale Royalty is sometimes applicable to certain items, this is 5% added to the hammer price denoted by a special symbol in the catalogue and a notation on LiveAuctioneer.com. This additional 5% is payable by the buyer.