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PostPosted: Dec 11th, '17, 21:46 
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Able Skipper

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Hello all,
just some information that I have become aware of regarding sales agreements when you use a boat broker. Three months ago we placed we put our boat on the market through a boat broker having gone through bad issues when trying to sell our previous boat. I know the broker and trusted him and while I both my wife and I read the agreement I missed some vital words and wording in the document. The alarm bells should have started as soon as the broker advised that he would forward a copy of the agreement as soon as he got home and this did not occur. I was not greatly concerned at the time as we needed some time to clean and de-clutter the boat.
At our instigation we moved the boat to a local marina for ease of allowing people to view the boat. After a month we had still not received a copy of the agreement and sent several emails requesting the document to no effect. I will not go into detail but after a number of issues that including leaving a access hatch open and the broker dropping the asking price of the boat in direct contravention of our instructions we gave 30 days notice too the broker in person that we would terminating the contract. I put this in an email and asked again for a copy of the agreement stating it was required by close of business the following day.
Now with 6 days left of the allotted time frame the broker has forwarded the Agreement in which he point out a clause that states that I cannot pull out of the contract due to a section that states that once signed the contract is "IRREVOCABLE" for the full 120 days of the contract.
I also noted in the agreement which I also neglected to realise in the clauses is that the broker states he is not liable for ANY damage to the boat even if he causes it. WTF. How did I miss that.
I have now viewed a few different agreements and they appear so one sided towards the broker I will not be signing any future agreements without obtaining legal advice or by changing a number of these clauses. I must admit I have bought some of this on myself by trusting the broker and also not reading the document more carefully, normally I go over it with a fine tooth comb.
Having read as much information as possible it appears that many documents relating to the sale and purchase of vessels is a very large grey area in relation to their legal standing and bias towards the broker. I would appreciate any other members input but overall I would implore all members to carefully read a brokers selling agreement and be aware of the terminology and also be aware of the possible consequences.
PS I tried contacting the ACCC but it was mission impossible trying to get through via phone.

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PostPosted: Dec 11th, '17, 22:20 
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Dont overly stress, many contracts have such clauses about damage caused in them and they are not worth the paper they are written on, you cannot sign away your right to sue for damage done by negligence, that simple consumer law.

Its an old trick many try to pull but it cant win in court, because simply negligence is negligence on their behalf.

If there is damage caused by their negligence then tell them you will be pursuing them for retribution, here in Victoria we have VCAT that looks after that.

As for your right to pull out, I would say that because they have not furnished you with a copy of the contract then any "cooling off period" would still be in force (you would need to check that with your local consumer law enforcer).

Personally I have NEVER trusted boat brokers, they work in a grey area of the law, they dont have to be licensed second hand dealers because they dont own what they are selling, in other words ANYONE can set themselves up as a boat broker, the other thing is they put up a description of the boat but if you read the fine print they take no responsibility that what they put in the advert is factual.

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PostPosted: Dec 11th, '17, 22:23 
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Perhaps you could refer it to the Ombudsman.

A couple of first-principles about Contracts might help you out
1 Essentially, it is an agreement, meaning that no one can force you into it. Implied in this is the assumption that you have had the opportunity to agree all the terms. The fact that you didn't get all the terms until it was too late breaks this principle, and goes against the author of the terms. If I recall, it's called Contra Proferentem. Even if it doesn't apply, you could scare your agent by talking Latin authoritatively (and it might make you feel better)

2 Not all clauses in contracts are enforceable by law. You might think they are, but quite often they are not, even if you have agreed to them explicitly or implicitly. This is because you cannot write a clause into a contract that does not comply with the law. The Clause about the broker not being liable for damages he or she causes to your boat might fall into this category. I'm no expert on consumer law, but each clause can only be enforced if there is a fair and reasonable test, or a limit on the conditions (e.g. your broker cannot enforce a clause that says he or she will act as your agent until the end of time).

Your instruction about not dropping the asking price should be treated as a clause of the contract, especially if it was agreed at the outset (have you got a record?). It does not cease to be a part of the contract because it was not written into the terms and conditions offered by the broker (Contra Proferentem, again).

Finally, it comes down to how much energy you have for a fight. Perhaps the threat of the Ombudsman or an arbitrator could bring the agent to heel. Unfortunately, once the boat is sold you would lose your bargaining position, so it probably means you won't sell your boat until you've come to some sort of agreement.

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PostPosted: Dec 11th, '17, 22:44 
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Greg, if its not in writing, it did not happen.

I know your more than capable of sorting this out.

Thanks for the heads up.

A bit sad you need to sell the big cat.

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PostPosted: Dec 12th, '17, 09:47 
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Able Skipper

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Hi Greg,
it is indeed sad to have Sunshine for sale but it is for good reason as we are planning on upgrading to a later model Lagoon 420 or 421.

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PostPosted: Dec 15th, '17, 10:57 
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Just to add a bit of good news - we have used DBY yacht brokers at Pittwater to purchase our Najad 34, and also to sell our Boomerang. They were very flexible, nothing seemed too much trouble and they even halved their commission on the sale of the Boomerang, ( for which they negotiated a very fair price for buyer and vendor) as we did a lot of the work and because the sale price was less than some of the other yachts they sell. I also have a friend selling with them, and he also finds them to be fair, reasonable and trustworthy. As in all things - "let the buyer beware"( or the seller in your case), but there are some good people out there worthy of trust. Sorry to hear of your bad experience - that broker sounds like one of the Dodgy Brothers!

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PostPosted: Dec 15th, '17, 11:19 
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I will throw my hat in with dby - we bought the spacey through them and rod is a great broker and bloke.

We also have our club marine through David (no longer affiliated with dby).

Neither should negate a close inspection of the contract.

That said, holding someone to a contract that will expire soon is of no benefit to either party.

Have you looked at the leopard cats? The yarpies seem to do it well....


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PostPosted: Dec 15th, '17, 16:27 
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It is my understanding that a copy of anything you sign with a "professional" entity must be provided at the time otherwise such an instrument is null and void.

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PostPosted: Dec 20th, '17, 19:53 
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Able Skipper
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You need to read a contract before signing it. Always.

The part about not accepting liability for damage is as though the broker is acting as your agent, your employee. It could be construed as fair enough, but you could sue if you thought any damage was wilful, grossly negligent, or the clause was unfair. It can be struck out of the contract if it is not fair. Just because it is in the contract doesn't mean it will stand up in court.

The part about demanding the contract runs its whole course (time duration) can be countered by you insisting that the price is non-negotiable also. Inasmuch as the duration will not be curtailed, neither will the price be lowered. Simple. Play hard ball. Never compromise. The fact that he has dropped the asking price in contravention of your instructions can make the contract voidable. It is contrary to your instructions, so you simply say it is not the correct price. Do not compromise.

The part about him not supplying a written copy of the contract within the stated time/a reasonable time would IMO make the contract void/voidable from the outset. It is not fair, it contravenes fair practice/consumer protection legislation. Your evidence, as documented and as diarised, will count toward proving the unfairness of this. A 3 day cooling off period might still be applicable from the time you received the copy of the contract.

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PostPosted: Dec 20th, '17, 20:21 
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Paper is cheap, good legal advice is priceless.

I'd be very surprised if a good lawyer couldn't change this from an attempt by you to escape a contract to a case of negligence , lack of informed consent, and an opportunity to recoup the costs you have lost at the marina / delayed opportunity to sell / even damages incurred by the price being publicy dropped without your consent. ( all it takes is one potential buyer to have seen the discounted add and you've lost a potential sale at the original price)

But you need to decide if it's worth the aggro - so go talk to a decent lawyer.

Nb I'm extrapolating this advice from what I'd be facing if I had a signed document from a customer but hadn't really discussed every part of the document and written great notes - different industry, but paper is cheap .

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PostPosted: Dec 20th, '17, 21:01 
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If any contract ends in a dispute that leads to court, only the legal representatives win. Everyone else loses.

A very wise person once told me to "Never do business with people or companies you don't trust."

I've watched other business people ignore this criteria and regret trusting a contract to resolve disputes.

When deciding on major contracts, we always had third parties report on companies viability.

I am bewildered by some Government service companies who won tenders regardless of the company never reporting a profit or paying tax. But having worked with some of the tender panel's members, I am not surprised by their poor judgement and selections or the non compliances once the business is in the contracted delivery phase.

These comments are a bit different to Marine Brokers, but contract issues are so similar.

In this case, I'm sure Greg will resolve the issue and move on. Lets hope his next broker will do a better job.

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PostPosted: Feb 9th, '18, 17:36 
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Yes I am biased, but good reputable brokers, ARE licensed second hand dealers they ARE members of the BIA, and generally those who have been in the business for a while are the ones who fit all the criteria and do follow the rules.

Like anything, do your homework.

Having said that, there is something not right about the details your describe. not what I would call 'normal' operations.

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PostPosted: Feb 9th, '18, 20:40 
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What a horrible experience. I agree that the contract is worthless because you haven't had an opportunity to review it during any cooling off period. The actions of the broker are disreputable and possibly fraudulent, however probably a lesson learnt (thank you for sharing.)

I would always suggest knowing the broker's history with boats. Do they sail? Do they know boats? :)

Good luck with the sale.

Skins.

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PostPosted: Mar 5th, '18, 23:06 
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Able Skipper

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Hello all,
been unavailable for a while but thought I would update current details. What a friggin mess. I understand there are good boat brokers out there but I am struggling to find one. Our contract has expired but as we have sold the boat, dealing with the broker does is not conclude until such time as we settle (very very soon) To add insult to injury with our broker I was alerted to an advertisement where the broker had dropped the advertised price against our explicit instructions this was not to occur. The advertising was in a area I believe the broker did not think I would ever encounter, he was wrong !!!!! A phone call and email later to the broker and the advertisement reverted back to its original pricing. There is so much more to this story and we are taking it further as there is now a clear breach of the contract relating to the sale of the boat.
To add salt to the wound we found a boat overseas that we really liked. I went through an offer to purchase contract with a fine tooth comb and rejected it outright when one of the clauses stated that if by some terrible accident my wife and I were not around to complete the purchase our heirs or agent would have to complete the purchase and would be responsible for all costs. Then another section stated that any legal proceedings or complaint would have to be held in Hong Kong despite the vessel and owner being in another country and nothing to do with Hong Kong. Once again - read the small print.
To date every brokers contract is different. No two are the same. While I am not a great fan of regulation there is definitely an argument for a code of conduct and oversight relating to Boat brokers similar to car sales etc.

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