Terms and Conditions
These Online User Terms and Conditions and Auction Terms and Conditions apply to Your registration with Carlins Automotive Auctioneers (WA) Pty Ltd (“CARLINS WA”), Your use of the CARLINS WA website www.carlins.com.au and the auction of vehicles by Carlins WA only. Carlins entities in other States or Territories and any dealings you have with those entities will subject to different terms and conditions.
Copies of these terms and conditions are available on our website. We reserve the right to change these terms and conditions at any time. Updated terms and conditions will be posted on our website.
Online User Terms and Conditions
1. In these Online Terms and Conditions You and Your means any organisation whose employees or agents use the CARLINS WA website and/ or any person who has been issued with a User ID and/or Password and/or any person using the online sales system (as relevant to the particular clause).
2.You and Your employees and agents agree not to disclose or otherwise make available any confidential information in any form to any other person and may only use the confidential information for the purposes of this agreement.
3. Your User ID and Password must be kept strictly confidential. They should not be disclosed to any other person. Any loss or damage sustained to CARLINS WA and/or You due to the misuse or negligent use of Your password will be borne by You regardless if the use was by Your or otherwise.
4. If You require another password, a request should be made to us in writing or by email to facilitate this request. Under no circumstances should You provide Your password to another person. If you discover that a person is using another person’s password or is about to use another person’s password, it is Your responsibility to inform us of this to enable us to cancel the password to avoid any loss or damage.
5. You must immediately notify us in writing if any person has disclosed or is suspected of disclosing or intending to disclose any confidential information to any other person.
6. If You or one of Your employees or agents who has a password ceases to be employed by, or authorised to act on behalf of, You, then You must notify us within 24 hours of the employee ceasing to be employed or the agent ceasing to act on Your behalf to enable us to cancel the password. If You do not provide us the adequate notice as requested, any damage or loss sustained by You or CARLINS WA or any other party, will be borne by You.
7. You are responsible for and shall indemnify CARLINS WA against liability for any and all all loss and or damage caused by the user or its employees or agents and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by CARLINS WA in respect of any such loss and or damage shall be made good at Your expense.
8. The entry by electronic means of Your user name and/or other identifiable information of the user in the sale book and/or records of CARLINS WA shall be binding on You.
9. Upon registration (whether in person or online) You agree to be bound by these Online Terms and Conditions.
10. CARLINS WA reserves the right to withdraw Your access to the website and the online sales system at any time.
Auction Terms and Conditions
In these terms and conditions, unless the context otherwise requires or implies:
Auctioneer means Carlins Automotive Auctioneers (WA) Pty Ltd (ABN ABN 35 121 606 826) trading as Carlins Automotive Auctioneers WA or its agent or agents.
Auction Sale means the auction of all or any of the Lots listed in a Catalogue (whether online or in person).
Auction Site means premises at which an Auction Sale is conducted.
Australian Consumer Law means the Australian Consumer Law set out in Schedule Two of the Competition and Consumer Act 2010 (Cth).
Catalogue means a list containing some or all of the Lots available and provided by the Auctioneer from time to time.
Fees and Charges means the fees and charges set out in the Schedule as amended from time to time.
Final Purchase Price means the Purchase Price together with any applicable Fees and Charges.
GST means the goods and service tax as imposed by the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Loss means any claim, delay, loss, liability, damage, expense, penalty, outgoing or cost whatsoever and however arising, whether present, unascertained, immediate, future or contingent and includes indirect and consequential losses.
Lot or Lots means any goods available for purchase or that are sold at the Auction Sale.
Motor Vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.
Non PDH Goods means any goods which are not PDH Goods.
OH&S Legislation means the Occupational Health & Safety Act 1984 (WA), Occupational Health & Safety Regulations 1996 (WA) and codes of practice which govern occupational health and safety of workers and workplaces in the State in which the Auction Sale takes place.
PDH Goods means goods which, for the purposes of section 3(1) of the Australian Consumer Law, are a kind ordinarily acquired for personal, domestic or household use or consumption.
Purchaser means the successful Bidder for a Lot, as determined by the Auctioneer (whether online or in person).
Purchase Price means the highest bid accepted by the Auctioneer for a Lot.
Seller means the owner of a Lot or the person duly authorising the Auctioneer to sell that Lot on the owner’s behalf.
Taxable Supply has the meaning given to that term by the GST Act.
Tax Invoice means a tax invoice as defined in the GST Act.
2. Auction Contract Particulars
Where Auctioneer is acting as an agent for the Seller:
(a) The sale contract for the purchase of a Lot is made directly between the Seller and the Purchaser;
(b) The sale book and/or Auctioneer’s records, together with the Online User Terms and Conditions (where relevant), the Auction Terms and Conditions, the absentee Bidder form (where relevant) and any other terms and conditions agreed in writing between the Auctioneer, the Seller and the Purchaser (from time to time) constitute the entire relationship between the Auctioneer, the Seller and the Purchaser; and
(c) If any dispute arises in relation to a Lot, the dispute is between the Purchaser and the Seller. Auctioneer will, in good faith, facilitate the resolution of the dispute between the Purchaser and the Seller but will not otherwise be liable. The Purchaser agrees to release the Auctioneer from any claim, action, Tribunal or court proceeding in respect of that Lot and to indemnify the Auctioneer, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
3. Bidding for a Lot
(a) Bidders must be 18 years of age or older.
(b) Bidders must be: (i) a licensed dealer under the Motor Vehicle Dealers Act 1973; and (ii) buying for the purpose of resale.
(c) Bidders who attend the Auction Sale in person must register to bid at the Auction Sale by providing the Auctioneer with their full name and residential address and evidence of identification. Bidders who use the CARLINS WA online sales system to bid which is available through www.carlins.com.au (Online Bidders) must register upon signing in to the CARLINS WA onli
(d) Upon registration (whether in person or online), Bidders agree to be bound by these Auction Terms and Conditions.
(e) If a Bidder does not register, the Auctioneer may choose not to accept their bid.
(f) All Lots are bidded on and purchased on an ‘as is, where is’ basis.
(g) Each bid constitutes an irrevocable offer by the Bidder to purchase the Lot at the specified price. Once a bid is made, it cannot be revoked and remains open for acceptance by the Seller or the Auctioneer until the sale is completed.
(h) A Bidder will be deemed to be bidding on their own behalf unless prior to the sale that Bidder disclosed to the Auctioneer that it will be bidding as agent on behalf of a principal and has supplied a copy of a written authority to that effect and any other documents that the Auctioneer requires. If the Bidder’s bid is accepted by the Auctioneer, the principal for whom the Bidder is bidding is bound by the Bidder’s bid.
(i) Subject to any reserve price, and at the sole discretion of the Auctioneer, the highest Bidder who is not in breach of these Auction Terms and Conditions or any other terms set out by the Auctioneer, will be the Purchaser. If any dispute arises to the last or highest bid, the Auctioneer (at its sole discretion), may auction or resell the Lot.
(j) The entry of the Purchaser’s details in the sale book or record by the Auctioneer or its clerk is binding on the Purchaser, and is prima facie evidence that the Purchaser has agreed to purchase the Lot.
(k) All bids submitted must be bona fide and must not be fixed or adjusted in collusion (or otherwise in accordance with any arrangement or agreement) with any third party (including but not limited to providing information relating to intended bids or attempting to manipulate the sale in any way). If the Auctioneer becomes aware of any form of collusive activity by a bidder, the Auctioneer may terminate the bidder’s right to participate in the auction, or if the Auctioneer has accepted the bidder’s bid, the Auctioneer may terminate any contracts entered into by the Bidder relating to the bid.
4. CARLINS WA Online Bidding
Bidders bidding via the online sales system:
(a) acknowledge that the Auctioneer is not responsible for bids that were not processed due to technical problems and/or delays;
(b) agree that they will not make any claims against the Auctioneer from any loss or damage arising as a result of the use of the online sales system to bid, including but not limited to, losses resulting from errors or problems on the internet, service or any issues beyond the Auctioneers' control or losses arising from Purchaser's use of or inability to use the service;
(c) acknowledge that the Auctioneer cannot prevent inappropriate use of the system or Bidder information stored in the system; and
(d) acknowledge that they bid on and purchase (if the case may be) the Lot on an ‘as is, where is’ basis, regardless of whether they have inspected the Lot or not.
5. Reserve Prices and Seller’s bids
(a) The auction of a Lot may be subject to a reserve price specified to the Auctioneer by the Seller.
(b) The Seller is not permitted to bid on their own Lot.
(c) Notwithstanding clause 5(b) the Auctioneer reserves the right to accept or reject any bid made by the Seller on their own Lot.
(d) The Auctioneer may bid for any prospective purchaser with or without disclosure and any such bid, if the highest bid, will be sufficiently evidenced if recorded in the Auctioneer’s sale book.
6. Payment upon Completion of Sale
(a) The Purchaser agrees to pay the Auctioneer the Purchase Price and the Fees and Charges (‘Final Purchase Price’).
(b) The Purchaser is not entitled to remove the purchased Lot from the Auction Site until the Final Purchase Price has been paid in full to the Auctioneer.
(c) The Purchaser of a Lot must pay the Final Purchase Price to the Auctioneer in accordance with the Auctioneer’s instructions upon completion of the Auction Sale. Receipt by the Auctioneer of the Final Purchaser Price in cleared funds is required within 3 business days.
(d) Payment of the above must be agreed by the Auctioneer. If payment is made by cheque and the cheque is dishonoured, the Purchaser will be deemed to be in fundamental breach of its obligations pursuant to these Auction Terms and Conditions.
(e) In the case of non-payment by a Purchaser (Defaulter), the Lot may, at the option of the Auctioneer, be auctioned or resold and the Auctioneer may in its discretion, refuse to accept any bid made by the Defaulter.
7. Removal of a Lot from the Auction Site
(a) No Lot may be removed by the Seller during the Auction Sale without the express consent of the Auctioneer.
(b) The Auction Sale will be deemed complete after all of the Lots listed in the auction Catalogue have auctioned, irrespective of whether or not all Lots have been sold.
(c) Subject to clauses 6 and 12, the Purchaser must remove the Lot from the Auction Site within 3 business days after the completion of the Auction Sale or as otherwise specified by the Auctioneer.
(d) If the Purchaser does not remove the Lot as required, the Auctioneer or the Seller may remove the Lot from the Auction Site and store it in an alternate location. The Purchaser is required to pay all reasonable costs incurred by the Auctioneer or the Seller in relation to the relocation and storage prior to removing the Lot.
(e) The Purchaser will be strictly liable for any damage to the Auction Site, other goods at the Auction Site, or persons caused by the removal of any Lot by the Purchaser from the Auction Site. The Auctioneer shall not be responsible for any damage to property or injury to persons incurred during the removal of any Lot.
8. Title of the Lot
(a) The Seller represents and warrants to the Purchaser and the Auctioneer that:
(i) it has good title to the Lot;
(ii) it has proper authority to sell the Lot; and
(iii) there are no undisclosed encumbrances, liens or security interests (as defined in the Personal Property Securities Act 2010 (Cth)) over the Lot at the time of delivery of a Lot.
(b) The Seller acknowledges that the Auctioneer relies on these representations and warranties in auctioning the Lot on behalf of the Seller.
(c) The Purchaser acknowledges that it is its responsibility to conduct a search of the Register of Encumbered Vehicles or the Personal Property Securities Register (as applicable) and that search must be undertaken no earlier than the day prior to the day it bids for the Lot to ensure that there is no undisclosed encumbrance over the Lot.
(d) It is the purchasers responsibility to indepenently verify any information relevant to Lot important to the Purchaser's decision to bid on the lot. The Auctioneer has not independently verified its completeness or accuracy. The Auctioneer does not give any warranty as to the completeness or accuracy of any information provided to a Purchaser about any lot, including without limitation any information as to the distance travelled or machine engine hours and the Auctioneer will not be liable for any loss, damage, cost or expense suffered or incurred by a Purchaser arising out of incorrect or incomplete information.
(e) In respect of the sale of Motor Vehicles in QLD where the Seller is not a motor dealer or other auctioneer, the Auctioneer provides guarantee of title at the time that the property passes to the Purchaser. This guarantee does not pass or extend to any third parties or to any subsequent purchaser or successor in title.
(f) Except in respect of the sale of Motor Vehicles in QLD where the Seller is not a motor dealer or other auctioneer, the Purchaser acknowledges that such guarantee is given by the Seller and not by the Auctioneer.
(g) If, subsequent to the fall of the hammer but before the delivery of a Lot, the Auctioneer becomes aware that the Seller does not have good title to the Lot sold, it has the discretion to cancel the sale of that Lot and refund to the Purchaser any moneys paid. The Purchaser agrees that it will not make a claim against the Auctioneer in such an instance. If it does so, it agrees to indemnify the Auctioneer from any, and all, costs, on a full indemnity basis that the Auctioneer incurs as a result.
(h) Title in any Lot does not pass until the Final Purchase Price (and if applicable, any other Governmental charges including, but not limited to any taxes, levies, duties, imposts, deductions and charges) has been paid in full to the Auctioneer.
(i) Any guarantee made by the Seller or Auctioneer under this clause 8 is in addition to, and is not intended to replace or detract from, any rights or remedies a Purchaser may have under the Australian Consumer Law or any other applicable laws.
9. Rights Reserved
(a) The Auctioneer and/or Seller reserves their right to withdraw any Lot or Lots listed in the Catalogue from the Auction Sale at any time;
(b) The Auctioneer reserves its rights:
(i) to offer for sale part only of any Lot listed in a Catalogue;
(ii) to offer two or more separate Lots listed in a Catalogue for sale together as one Lot and if that Lot is not sold, to offer those Lots for auction as separate Lots;
(iii) to refuse any person admission to, or eject them from, the Auction Site;
(iv) to not disclose the existence and/or quantum of the reserve price (if any) of a Lot prior to the close of bidding or withdrawal of the Lot;
(v) in the event that any Purchaser successfully bids for more than one Lot at the Auction Sale to:
(A) allocate any monies received from that Purchaser between the Lots as it sees fit; and
(B) regard the sale of multiple Lots as interdependent and treat default under a contract for either Lot as default under all such contracts;
(vi) to (whether or not a Lot has been knocked down as sold) in its sole discretion resubmit it for sale by auction at the Auction Sale in progress or as soon as practicable thereafter; and
(vii) to offer and sell a Lot that is not sold at an Auction Sale immediately thereafter by private agreement. Any such private agreement is also subject to these conditions unless otherwise agreed in writing by the Auctioneer.
10. Warranties and consumer guarantees
(a) Save to the extent set out in these Auction Terms and Conditions, to the fullest extent permitted by law all conditions, warranties, guarantees (including without limitation as to condition, quality, fitness for purpose, merchantability or compliance with description), rights, remedies, liabilities and other terms implied by custom, statute or common law are excluded from this agreement.
(b) The Purchaser acknowledges that the consumer guarantees stipulated in sections 54, 55, 56, 57, 58 and 59 of the Australian Consumer Law do not apply to the sale of goods by auction. As a result, the Auctioneer and the Seller makes no warranties and give no guarantees regarding:
(i) the goods being of acceptable quality;
(ii) the goods being fit for any disclosed purpose or any purpose for which the supplier represents they are fit;
(iii) the goods matching their description or corresponding to any sample or demonstration model;
(iv) the availability of repairs or spare parts for the goods; or
(v) express warranties in respect of the goods made by the manufacturer being complied with
(c) If the goods forming part of a Lot are:
(i) PDH Goods; or
(ii) Non PDH Goods and the purchase price of the Lot is $40,000 or less (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time);
then certain guarantees may apply in respect such goods purchased by that Purchaser including (without limitation):
(iii) guarantees as to title to the Lot passing to the Purchaser;
(iv) guarantees regarding the Purchaser having undisturbed possession of the Lot; and
(v) guarantees regarding the Lot being free from undisclosed encumbrances.
(d) Nothing in this clause 10 or clause 11 (or any other provision of these Auction Terms and Conditions) should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law, or the liability of the Auctioneer or the Seller for failing to comply with these provisions of the Australian Consumer Law or the right of a consumer to make a claim in respect of these guarantees or under any other provision of the Australian Consumer Law.
11. Limitation of liability
Where the Purchaser suffers Loss as a result of its purchase of any Lot and:
(a) the goods forming part of a Lot are Non PDH Goods with a purchase price of more than $40,000; or
(b) the Purchaser suffers the Loss other than as a result of any breach by the Seller or the Auctioneer of the consumer guarantee or other similar provision of the Australian Consumer Law;then, subject to any other laws which may apply and may not be excluded, or in respect of which liability cannot be limited by these Auction Terms and Conditions, the Seller and the Auctioneer will not be liable for any such Loss suffered by the Purchaser. This clause applies even if the Seller and/or the Auctioneer knew or ought to have known that the relevant Loss would be suffered.
(c) The Purchaser agrees and acknowledges the Auctioneer accepts no liability or responsibility to the Purchaser or any third party arising from any indirect or consequential loss, damage or expense of any kind or nature and the Purchaser releases and forever discharges the Auctioneer from any such liabilities and claims, demands or causes of action in respect thereof.
(d) The Auctioneer accepts no responsibility for any interpretation placed upon the information provided to the Purchaser.
(e) The Auctioneer is not responsible or otherwise liable for any delay in, or failure of, performance to the extent of any delay or failure due to circumstances beyond the Auctioneer’s reasonable control including without limitation, strikes, lockouts and other industrial disputes, breakdown of systems or network access, flood, fire, explosion or accident.
The Purchaser expressly acknowledges and warrants to the Auctioneer and to the Seller that prior to making an offer for a Lot or successfully negotiating the purchase of a Lot by private agreement, that it has either cash resources immediately available to complete the purchase or has obtained approval for financial assistance on reasonable terms which are satisfactory to the Purchaser.
(a) If the Purchaser is in default of any of its obligations under these Auction Terms and Conditions or any interdependent or separate agreement with the Auctioneer or Seller:
(i) The Auctioneer and/or the Seller, in addition to those rights otherwise set out in these Auction Terms and Conditions, may:
(a) recover damages from the Purchaser;
(b) without notice to the Purchaser resell the Lot or Lots in any manner upon such terms and conditions as it may think proper and recover all losses, costs and expenses incurred from any such resale from the Purchaser by way of damages, whether or not that amount exceeds the Purchase Price that was to be paid by the Purchaser for the Lot or Lots (and including all legal costs) and the amount of any commission lost on the original sale as the result of the Purchaser’s default and the cost of advertising in respect of any such resale; and
(c) forfeit any monies paid by the Purchaser in consideration for a Lot and/or Lots.
(b) If the Seller defaults on the delivery of a Lot or part thereof, the Seller must refund any money which the Purchaser had paid to the Auctioneer on account of its purchase.
14. General Law
(a) The proper law governing the interpretation and enforcement of these conditions including all substantive rights and obligations hereunder and the manner mode and method of performance is the law of the State in which the Auction took place.
(b) All rights and remedies available to the parties against each other under the general law are subject to these conditions.
(c) If any of the conditions in these Auction Terms and Conditions are to any extent held by any court of competent jurisdiction to be invalid or unenforceable, the remaining conditions will not be affected thereby, and will remain in full force and effect.
(d) To the extent that they are applicable, the requirements stipulated in section 42 of the Motor Vehicle Dealers Act (1974) and prescribed particulars in Schedule 5 of the Motor Vehicle Dealers (Sales) Regulations 1974 (or where relevant the equivalent provisions in any other State or Territory where the sale occurs) are incorporated into these terms and conditions and to the extent that those provisions are inconsistent with these terms and conditions, the former will prevail. Please note that this part does not apply to sales of motor vehicles previously belonging to a government department.
15. Further special conditions
The Auctioneer may prior to the commencement, or during an Auction Sale announce further special conditions applying to that Auction Sale or a particular item put up for auction in which event such further special condition or conditions will be deemed to be incorporated into and form part of these conditions.
16. Goods and services tax (GST)
(a) The Seller will elect whether the Purchase Price of the goods is inclusive or exclusive of GST. If applicable, GST will be added to all charges and fees payable.
(b) If the whole or any part of the Purchase Price of a Lot is consideration for a taxable supply, the Purchaser must pay to the Seller via the Auctioneer, an amount equal to the GST amount applicable to the Purchase Price. The Auctioneer will provide to the Purchaser (if applicable) a Tax Invoice at that time.
17. Auction of Used Motor Vehicles and other goods
(a) The Purchaser acknowledges that:
(i) the information that the Auctioneer has in relation to each Lot is information provided to the Auctioneer by the Seller of each Lot (including, in the case of Motor Vehicles, any inspection, condition, pre-auction reports or other information as to the condition of the Motor Vehicle);
(ii) the information provided by the Seller in relation to each Lot is not guaranteed by the Auctioneer;
(iii) it must satisfy itself as to the condition, description and state of repair of the Lot prior to the Auction Sale and if it does not, the Purchaser bids or purchasers on any Lot or Lots at its own risk;
(iv) in the case of Motor Vehicles, it may not rely on the category in which a Motor Vehicle is sold as a representation as to the condition or registrability of the Motor Vehicle; and it is the Purchaser’s responsibility to check the Written Off Vehicles Register prior to an Auction Sale to satisfy itself as to the registrability of the Motor Vehicle; and
(v) if a dispute arises in relation to this information, the Purchaser will exclude and indemnify the Auctioneer from any such dispute (including costs on a full indemnity basis by any costs incurred by the Auctioneer in relation to such dispute).
FEES & CHARGES SCHEDULE
Buyers Administration Fee
10%(INC GST) OF SALE PRICE WITH A MINIMUM OF $150 AND A MAXIMUM OF $495