Legal issues around horse sales

[Freda]

Thanks, Curious, that's exactly what I was trying to ascertain.

Puts it all very clearly I think.

[Arsenic]

I take it the purchaser is the trainer and it’s seems that the issue with the horse happened 2 to 3 months after the sale on the auction site, so how much time do you want as being a horse owner myself one would surmise that the said horse would have been kept in work but just had  a change of stable.  

 The onus is on the buyer to check out the horse, but  to complain 2 to 3 months after the sale don’t think so.

Maybe the current trainer had something to do with the issue.

Looks like someone’s trying to get out of paying the previous owner the remaining monies owed on the horse.

 

[jess]

You connected to the vendor A?

[Arsenic]

Absolutely not 

[jess]

Freda can correct me if I'm wrong but the way I read it is that the "issue" was noticed right away but when reassured (misled?) by the vendor, the new owners carried on with the horse. Hence the delay to which you scathingly refer. 

[curious]

1 hour ago, jess said:

Freda can correct me if I'm wrong but the way I read it is that the "issue" was noticed right away but when reassured (misled?) by the vendor, the new owners carried on with the horse. Hence the delay to which you scathingly refer. 

Jess, I don't know the detail of exactly what happened, or who said what to whom, but if I put myself in the position of either party, it's hard to see that the vendor is responsible here, partly for the reasons Arsenic states. If the vendor sold the horse in the belief that it was sound and could continue racing, then it is surely incumbent on the buyer to ascertain for themselves that is the case. It seems the vendor had no evidence to the contrary other than the possibly the presence of some observable issue. The purchaser who it appears naively bought the horse without any pre-purchase inspection or clinical exam, noticed an issue upon receiving the horse but still put it into work without further investigation other than asking the agent about it. When the area of concern did turn out to be an issue months later, hardly seems reason that the sale should be cancelled, especially if the terms of sale are clear and similar to the gavelhouse ones I posted above.

I just bought a cheap <$3000 car on trademe that is located about an hours drive from here. I didn't go and inspect it myself but did pay for a pre-purchase exam from a professional. That highlighted a problem which it turned out the vendor might have known about. The vendor also didn't know that any vehicle sale requires that the car have a warrant less than one month old. It had a current warrant. Once she realised that and that I was aware of the problem she said it probably wouldn't get a warrant. A brief korero and the problem is being repaired and the warrant obtained and we will proceed with the purchase. If I had gone to get a new warrant in 3 months time and the car failed on this basis, I don't think I would have had any reason to complain or any comeback. Even the chance to provide negative Trademe feedback would be long gone. If I'd noticed the problem when I got the car and rung up and asked about it and she said it got a warrant 3 months ago. What could I say? You need to check things out BEFORE the transaction when they can either be remedied or you make an informed and negotiated decision with the vendor.

JMHO

Edited August 3, 2018 by curious

[jess]

And the apparent claim that the issue had been (veterinary) checked but then not so much .... ?

What's that in terms of your yr car analogy? A claim of a WOF freshly obtained that didnt actually exist? 

[curious]

13 minutes ago, jess said:

And the apparent claim that the issue had been (veterinary) checked but then not so much .... ?

What's that in terms of your yr car analogy? A claim of a WOF freshly obtained that didnt actually exist? 

No. The analogy is that if I notice a problem AFTER I've completed the transaction and  taken delivery of the car, it's a bit late. If I then contact the vendor and ask about it and they tell me it's been checked out and was ok 3 months ago because it got a warrant, then it's incumbent on me to decide whether I get it further checked out or drive it for 3 months and it either falls off or fails its next warrant. By then, I wouldn't consider I had any recourse or right to cancel the sale.

As I said, I don't exactly know what was said but we only have one side of that story. From my experience of online horse auctions, vendors sometimes post vet reports, especially where there is a noted problem, say a tendon injury, or x-rays, scopes etc. I'd still get a second opinion BEFORE the purchase if in relation to a known issue. I'd also have at least been asking if there were any vet exams or reports that might be relevant to the purchase and asking for them beforehand.

[Freda]

That is, as always, informative. Thanks Curious.

I've now become better informed about buying cars !

Now we have facts in front of us all, I should add that I would have taken a different course in this scenario....but I think the advice given makes correct progress unambiguous.

[jess]

Points well made Curious. I still get the feeling here that full and honest disclosure may not have occurred and that will always leave a bad taste in someone's mouth.  

[Arsenic]

In all my years within the racing I am unaware of anyone who would keep an animal in work when it appears to be carrying an injury.

The people I know rest the animal and treat the issue , but the more I hear and read of this it seems it happened 2 to 3 months after the sale of the animal at auction.

I don’t know the seller of the horse and I don’t know who the purchaser was and I don’t know the horse but with the timeframes involved to me it looks like this is the purchasers way of reneging on the remaining amount of money still owing to the seller.

Very sad and poor attempt to get out of paying what is owed

[Weasel]

A messy business...

I would never buy a horse without being certain that it had passed a vet test. Was 'proof of soundness'  offered to the purchaser?

[Freda]

On ‎4‎/‎08‎/‎2018 at 10:11 AM, Weasel said:

A messy business...

I would never buy a horse without being certain that it had passed a vet test. Was 'proof of soundness'  offered to the purchaser?

A verbal assurance only,  W.   However,  that verbal assurance did indicate that a vet check had been undertaken.

We now have a stalemate of sorts....vendor is refusing to budge and wants the second instalment of payment,  as his his/her right given the detailed T.& C listed earlier.

Purchasers are in a no-man's land of being responsible for maintenance costs for an animal they don't own.

[curious]

Freda, I note that there is another provision in the gavelhouse Ts&Cs.

You, as Seller:

.....
(c) Declare that each Lot meets the description and parentage You supply;

(d) Are alone responsible for the accuracy of the information that You supply under clauses 7.2 (a) (b) and (c) and if the information is materially misleading or inaccurate:
(i) You fully indemnify Us against any action by the Buyer and any costs and expenses incurred by Us in connection therewith; and
(ii) The Buyer is, without prejudice to the other remedies available to the Buyer at law (including to sue for damages or to sue for specific performance), entitled to cancel the sale and to a refund of all purchase monies paid in respect of such Lot from the Seller or from Us if We still hold the same.

Edited August 8, 2018 by curious

[Freda]

Ah....that puts a different slant on things, now, doesn't it?

So.....when the vendors agent claimed a 'vet check' had been carried out, and subsequently it was found not to have been,  does that qualify as 'misleading ' to the extent of nullifying the sale?

[barryb]

1 hour ago, Freda said:

Ah....that puts a different slant on things, now, doesn't it?

So.....when the vendors agent claimed a 'vet check' had been carried out, and subsequently it was found not to have been,  does that qualify as 'misleading ' to the extent of nullifying the sale?

Absolutely Freda & what’s more it entitles the purchaser to sue for expenses connected with the sale, ie transport, registration etc.

[curious]

6 hours ago, Freda said:

Ah....that puts a different slant on things, now, doesn't it?

So.....when the vendors agent claimed a 'vet check' had been carried out, and subsequently it was found not to have been,  does that qualify as 'misleading ' to the extent of nullifying the sale?

I'm no lawyer Freda. While that would certainly qualify as misleading in my eyes, I don't think that is included in the application of this condition which seems to refer to the information in the "description" supplied. Elsewhere in the T&C doc, "description", while not specifically defined, refers to the description on the website and I think this condition applies to that only. E.g.:

5.8 You are personally responsible for a bid made by You. You may not retract a bid except for limited circumstances allowed under applicable law, for example, where the Lot does not materially comply with the description provided in relation to it on the Website.

So, if that description describes the horse as a racehorse (when it couldn't be because of injury), or 'sound' (when it wasn't), this might apply. I think what was and wasn't said in the buyers due diligence process falls under the buyer's responsibility indicated in my earlier post relating to the Ts and Cs.

[Freda]

To bring this forward....horse has been returned to vendor's agent pending adjudication by Disputes Tribunal.

[Freda]

Disputes tribunal hearing has been held with a decision still being awaited by both parties.

Vendor has claimed for the balance due,  i.e. the unpaid portion.

Purchaser has counter - claimed for training and other costs incurred.

As a matter of interest - the horse was found to be a windsucker upon acquisition - this fact was not disclosed at time of sale.

[jess]

Thx for the update Freda.  I'd be v intrstd to hear the outcome. Hard to imagine it was not known the horse was a windsucker.  That alone does not look gd for the vendors ...

J. 

 

 

[Kopia]

Transactions involving horses seem so casual at times...how many times do you hear..'yeah, though it was sold but the money never came through' etc..? a simple sale and purchase agreement with names/$$$/dates/etc would surely overcome some of this..?

[MaltedMilkshake]

Actually, this is a very frustrating issue for many in the industry.

I was browsing Inglis Digital at the latest offerings and noticed all Lindsay Park offerings have the following noted.

”All horses sold under the rules of Public Auction and the veterinary records remain the property of Lindsay Park Racing”

However not sure what rules Gavelhouse (NZB) asks Vendors to adhere to?  

 

[Freda]

The ruling has,  at last,  beeen delivered.

The balance of the due amount must be paid and the horse picked up immediately from the agent.

At least,  now, the papers will be forwarded to the purchasers [ hopefully? ]  and the horse can then be re-homed.

[curious]

So caveat emptor applied?

[Freda]

Sure did.