1. Definitions
Auction means the sale of Goods by public auction.
Buyer means the person who has made the highest or winning bid at the fall of the gavel.
Goods means personal property, including a Vehicle, sold to the Buyer by Auction on the terms set out in this agreement.
Owner means the person who has authorised Turners to sell any Goods.
Purchase Price means the amount of the winning bid and does not include the Buyer Premium or TPP.
Turners Purchase Protection or TPP means the warranties at clause 5.2 and 5.5.
Vehicle(s) means any motor vehicle(s) sold to the Buyer offered for sale by Auction.
2. Registration
2.1 Registration of Buyers: Any person who wishes to bid in person at any public auction must register at the auctioneer’s office prior to commencement of bidding. Turners reserves the right to request identification from or deny registration to any intending Buyer without giving any reason.
3. Auction Terms
3.1 Agent: The Buyer acknowledges that Turners is the Owner’s agent.
3.2 No warranties: All Goods, parts and accessories to Vehicles are offered for sale “as is, where is” and no representations or warranties, either express or implied, are given by Turners or the Owner:
(a) as to merchantability or fitness for purpose or quality or condition; and
(b) where the Goods are Vehicles as to:
(i) the condition, mileage, description or performance characteristics of the Vehicle, notwithstanding information published in any catalogue or advertisement;
(ii) either the distance travelled or the accuracy of the odometer reading of any Vehicle;
(iii) the past use of any Vehicle;
(iv) whether the Vehicle has or has not suffered flood or water damage, structural, chassis or other repair.
3.3 Additions and modifications of conditions: Turners reserves the right to add additional conditions of sale to any Auction sale it conducts. It also reserves the right to modify or withdraw any of the Auction terms. In such circumstances, additions, modifications or withdrawals will be announced at the commencement of the Auction or any time during an Auction.
3.4 Bids and lots: Turners has full and sole discretion to refuse any bid, to divide any lot, to combine any two or more lots, to withdraw any lot or lots (whether or not the reserve has been reached) or to change the order of sale shown in the catalogue without in any case giving any reason.
3.5 GST: Subject to any changes announced by the auctioneer immediately prior to any Auction, bids made by a Buyer:
(a) on Turners’ premises are inclusive of GST (if any);
(b) off Turners’ premises shall be plus GST (if any);
But in all cases shall be plus the TPP fee or any buyer premium.
3.6 Buyer premium/TPP: Turners may charge the Buyer a buyer premium or TPP fee on Goods purchased. The type and amount of this charge will be announced by the auctioneer prior to the commencement of the Auction.
3.7 Turners bids: Turners may bid on behalf of an Owner or on behalf of an absentee prospective Buyer.
3.8 Sale: Once the reserve has been achieved or exceeded the highest bidder shall be the Buyer. On the fall of the gavel, or any other similar act which concludes the bidding, the Buyer shall have entered into an unconditional agreement to purchase the Goods on the terms set out in this agreement.
3.9 Payment: All amounts due must be paid by the Buyer to Turners in cleared funds, by cash or bank cheque on the day that the Goods are sold.
3.10 Liability: Turners and the Owner exclude any liability for any representation(s) or statement(s) that may be made or implied by Turners or the Owner. The Consumer Guarantees Act 1993 does not apply to any sale made by Auction.
3.11 Disputes: If any dispute arises in relation to this agreement or the purchase of any Goods (including a breach of the Fair Trading Act 1986, any applicable consumer law or standard, the Motor Vehicle Sales Act 2003 or any other law or regulation whatsoever, including any failure by the Owner to comply with its agreement with Turners), whether the dispute involves the Owner, Turners or the Buyer or prospective purchaser of a Vehicle, Turners shall have absolute discretion to settle it. Any decision made by Turners shall be final and binding on all parties.
4. Vehicles – Mechanical appraisal reports
4.1 Where Turners provides a mechanical appraisal in respect of a Vehicle the Buyer agrees that:
(a) the mechanical appraisal is provided as a guide only to the Buyer and no warranty is expressed or implied;
(b) structural and cosmetic areas, such as body work and interior cabin, are excluded from the mechanical appraisal; (c) the Vehicle has not been hoist inspected and parts have not been dismantled;
(d) the Vehicle has only been tested at speeds up to 50 kph;
(e) for Vehicles with an automatic transmission, the operation rating given applies only to the operation from cold up to 50 kph on a flat road;
(f) the final responsibility for assessing the condition of any Vehicle rests with the Buyer.
5. Vehicles – Turners Purchase Protection
5.1 Type of warranty: Vehicles offered for sale at Auction are sold with TPP, unless expressly excluded or modified by Turners before or during the course of the auction.
5.2 Title warranty: Subject to clause 5.3, Turners warrants that at the time of sale:
(a) Turners are authorised to sell the Vehicle; and
(b) no registered security interests are attached to the Vehicle.
5.3 Title warranty conditions: The warranty in clause 5.2 is conditional on the Buyer:
(a) advising Turners within two working days of any claim made against the Vehicle by any party claiming any interest in it, and the Buyer otherwise not releasing the Vehicle into the possession of any third party and not otherwise compromising any claim or agreeing to settle any claim without Turners’ authority;
(b) assigning to Turners, on request, any rights it has against the Owner or any other party in connection with the Buyer’s purchase of the Vehicle and the Buyer’s full co-operation with Turners enforcing such rights.
5.4 Title warranty claims: Any claim in respect of a breach of the warranty at clause 5.2 must be in writing, set out full particulars of the breach complained of and be delivered to Turners. If Turners accepts the claim it will, at its sole discretion, either take such steps as may be necessary to give the Buyer good title to the Vehicle or refund the Purchase Price. The warranty at clause 5.2 represents the full extent of Turners’ obligations for any defect of title.
5.5 Description warranty: Turners warrants that the following particulars given for Vehicles sold at Auction will be correct:
(a) Year of first registration in New Zealand.
(b) CC rating.
(c) Number of registered non-LMVD New Zealand owners according to certificate of registration shall not be more than stated.
(d) New Zealand/ex Overseas used import.
(e) Make and model.
(f) The accessories listed with the Vehicle.
(g) Registration licensing particulars.
(h) Odometer Reading according to documented history (except that no warranty is given concerning the accuracy of odometer readings on any Vehicle).
(i) Road user charges paid up to current odometer reading.
(j) In the event of there being a variation or conflict between those particulars at (a) to (i) above given by the auctioneer at auction and the particulars listed in any advertising or in the sale catalogue then the details given by the auctioneer shall prevail.
5.6 Description warranty claims: The warranty at clause 5.5 is valid for a period of sixty days from the date of the Auction sale. Any claim in respect of a breach of the warranty at clause 5.5 must be in writing, set out full particulars of the breach complained of and be delivered to Turners within sixty days from date of the Auction sale. If Turners accepts a claim it will, at its sole discretion, either take such steps as it considers necessary to remedy or compensate the Buyer for the breach, including refunding the Purchase Price.
5.7 Refund of Purchase Price: Should Turners elect to refund the Purchase Price under clause 5.4 or 5.6, the Buyer shall return the Vehicle and its registration papers to Turners within five working days from the date Turners advises the Buyer of its intention to refund the Purchase Price. If the Vehicle is not returned by the Buyer within this time, Turners will be released from all obligations with respect to the relevant warranty.
6. Vehicles – Buyer Obligations
6.1 No warrant of fitness: Where any Vehicle does not at the time of delivery have a current certificate or warrant of fitness issued with respect to the Vehicle within one month before the date of the Auction sale the Buyer undertakes to Turners that they will not, except for the purpose of obtaining in-service certification, operate the vehicle until it has been inspected and certified for in service fitness as provided for in Rule 9.12(4) of the Land Transport Rule 35001/1 Vehicle Standards Compliance 2002.
6.2 Change of ownership: Every Buyer must supply to Turners before taking delivery of a Vehicle the information necessary to enable the change of ownership to be registered. Turners reserves the right to delay release of Vehicles/Goods until this is done.
6.3 CIN: As soon as practicable after the purchase of a Vehicle the Buyer must sign a written acknowledgement that Turners has provided the Buyer with a copy of the Consumer Information Notice which was attached to the Vehicle.
7. Risk, Title and Delivery
7.1 Risk: Risk in all Goods shall pass to the Buyer at the time an agreement is formed under clause 3.8.
7.2 Title: Goods do not become the property of the Buyer until the Buyer has complied with their/its obligations under clauses 3.9 and 6. Payment by cheque is not made until clearance of the cheque. Turners reserves the right to withhold delivery of the Vehicle until cleared funds are received and the Buyer complies with all of their/its obligations under these terms.
7.3 Delivery: The Buyer shall collect the Vehicle from Turners on the date title passes. If title does not pass on the date this agreement is signed by the Buyer, Turners may make a reasonable charge for storage of the Goods.
8. Default and Termination
8.1 Default interest: The Buyer acknowledges that payment of all amounts due pursuant to these terms on time is essential to Turners. The Buyer will pay Turners interest, if demanded, on any amount due but not paid, from the due date until the date of payment at the rate of 15% per annum, calculated daily.
8.2 Termination: If the Buyer fails to collect the Vehicle or pay for the Vehicle on the due date Turners may without further notice terminate the agreement formed under clause 3.8.
8.3 Consequences of termination: If the agreement formed under clause 3.8 is terminated by Turners:
(a) the Buyer shall forfeit the deposit (if any) paid to Turners, in which case the Buyer acknowledges and agrees that the deposit represents a reasonable pre-estimate of Turners’ loss; and
(b) the termination will be without prejudice to any rights accrued or obligations owing by the Buyer to Turners as at the date of termination and, without limitation to those rights, Turners may, at its sole discretion:
(i) re-sell the Vehicle by any means and if by auction, at no reserve, and claim from the Buyer all costs and any loss, including any loss on re-sale;
(ii) sue the Buyer for the full Purchase Price of the Vehicle plus interest pursuant to clause 8.1 and costs (including legal costs on an indemnity basis) and including reasonable storage costs.
9. Privacy and Electronic Messages
9.1 Collection of personal information: Turners may collect and store information contained in this agreement including personal information and will hold any personal information in accordance with the requirements set out in the Privacy Act 1993. Your personal information may be held by Turners electronically or in hardcopy on Turners’ premises (in New Zealand or elsewhere) but in all cases Turners will control that information.
9.2 Consent to receive electronic messages: If you provide us with your email address then you have agreed to Turners providing you with unsolicited information about goods and services offered by Turners in electronic form to that email address. Every unsolicited email which Turners sends you containing information about goods and services offered by Turners will include the following:
(a) an unsubscribe facility which will remove your email address from Turners’ database within 5 working days of Turners receiving your unsubscribe request; and
(b) the person at Turners who authorised the email to be sent and that person’s contact details.
9.3 Removal of your email address: You may request that Turners delete your email address at any time by either contacting Turners in writing, by email or using the functional unsubscribe feature on an email you may have received from Turners.
9.4 Use of the information: Turners may use your personal information:
(a) for the purposes you provided it to Turners;
(b) to send you email messages to market or promote goods and services offered by Turners only if you have supplied your email address.
The information collected by Turners for this purpose (including email addresses) will not be shared with other parties and you may unsubscribe to update emails at any time.
9.5 Related entities: Turners may pass your personal information on to any subsidiary or associated company to use for the purposes described in clause 9.4 and on the condition that the Turners subsidiary complies with clause 9.
9.6 Access to, editing and deleting personal information: You may also ask us to correct, alter or delete any personal information that we hold about you by sending a written request to Turners’ head office. It is your responsibility to ensure that personal information provided to us is accurate. You can ask to see the personal information that we hold about you by sending a written request to Turners’ head office.
10. General
10.1 Damage: Any Buyer, prospective Buyer or person who causes damage to any Goods or accessories either before or after those Goods or accessories have been sold will be required to pay for either the repair or replacement necessary to put good that damage.
10.2 Consequential loss: Turners shall not under any circumstances be liable for any consequential loss or damage, costs or expenses nor shall Turners be liable for any improvements to the Vehicle or loss of use of the Vehicle or expenses incurred with respect to the Vehicle. The Buyer’s only rights shall be those expressly given to them by the TPP.
10.3 Exclusion of liability: Except as expressly provided in these terms, in the case of any dispute, any remedy of the Buyer shall be against the Owner only and under no circumstances (including an action for breach of any fundamental obligation) shall any remedy lie against Turners or any agent, contractor or employee of Turners.
10.4 Costs: Turners may recover from the Buyer any and all costs incurred by Turners in enforcing the provisions of these terms, including debt collection costs and any legal costs as between solicitor and client on an indemnity basis.
10.5 Privity: Clauses in this agreement which are for the benefit of Turners or the Owner are intended to be for the benefit of Turners, Turners’ employees, agents, contractors and assigns jointly and severally and the provisions of the Contracts (Privity) Act 1982 apply accordingly.