Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd

1. [1]

   BELL CJ: I have had the benefit of reviewing in draft the reasons for judgment of Basten AJA in which the background to the parties’ dispute is set out. These reasons assume familiarity with his Honour’s judgment.

2. [2]

   I agree with his Honour’s conclusion that ground 2 of the appeal should be upheld. I respectfully disagree, however, with his conclusion in respect of ground 1 to the effect that the primary judge erred in finding that what were identified as the 2012 Terms were incorporated into the three Sales Agreements which underpinned Gispac Pty Ltd’s (Gispac) claims.

3. [3]

   These are my short reasons for reaching that different conclusion.

4. [4]

   The mechanism for the incorporation of additional terms and conditions in each of three Sales Agreements in issue (two of 5 May 2014 and a third of 8 May 2015) was a requirement to tick a small box in the following clause:

5. [5]

   In each of the three Sales Agreements, Mr Chris Colville of Michael Hill Jeweller (Australia) Pty Ltd (Michael Hill) ticked the box and executed the Sales Agreements. He gave evidence, which was accepted, that he did not seek to open or engage the link provided.

6. [6]

   There can be no doubt that, by the combined acts of ticking the box and executing the Sales Agreements, the parties agreed to be bound by Gispac’s terms and conditions of trading that it was said could be found at the identified URL link. That link indicated that the terms and conditions took the form of a PDF document identified with the description “gispac_terms_and_conditions_jan2012.pdf”.

7. [7]

   The reason for the preliminary or threshold dispute as to whether terms and conditions additional to those set out in the Sales Agreement (which were expressed in short form) were incorporated arose from the fact that the primary judge was not persuaded that the evidence before him established that the URL hyperlink to the 2012 Terms was operable in May 2014 and 2015 (when the Sales Agreements were respectively executed) in the sense that a person clicking on the link in the Sales Agreements or typing in the URL shown on the Sales Agreement into a web browser, would be directed to the 2012 Terms. There was an “absence of direct evidence supporting the proposition”: PJ [44].

8. [8]

   Evidence was, however, led on behalf of Gispac from Mr Edwin Bogatez who had been the Director of Gispac for 22 years and deposed to being the controlling mind of the company and overseeing its day-to-day business operations. He purported to have made his Affidavit on the basis of his personal knowledge and knowledge obtained by him in his capacity as a Director of Gispac through the inspection of Gispac’s books and records.

9. [9]

   At [26]-[27] of his Affidavit, Mr Bogatez stated that:

10. [10]

    He then, in [28] of his Affidavit, exhibited a “copy of the Terms”. Giving effect to the definition of Terms in [26], this document must be taken to have been “Gispac's standard terms and conditions as they existed at the time those agreements were entered”. The primary judge referred to the Terms, as defined in Mr Bogatez’ Affidavit as the 2012 Terms.

11. [11]

    The primary judge’s finding that he was not satisfied that the link was not operable at the time of the execution of the Sales Agreements was not to deny Mr Bogatez’ evidence that (a) Gispac had a set of standard terms and conditions that existed at the time the three Sales Agreements in issue were executed, and (b) that the set of standard terms and conditions were constituted by the Terms, as exhibited to his Affidavit.

12. [12]

    At PJ [34], the primary judge held:

13. [13]

    The primary judge held (at PJ [72]) that:

14. [14]

    The primary judge, in finding that the Terms were incorporated, necessarily construed the incorporation clause as manifesting an intention to incorporate by reference to Gispac’s terms and conditions as they existed at the time of the execution of the Sales Agreements such that, whether in fact the URL link was operable at the time, was not to the point. On this footing, that part of the clause which stated that the Terms could be found at the particular URL link was not an essential part of the parties’ agreement, objectively ascertained; rather, it was merely pointing out where (or how) Gispac’s Terms could be located, if Michael Hill wanted or needed to consult them. That that advice or guidance may not have been accurate did not detract from Michael Hill’s agreement, by ticking the box, to Gispac’s terms and conditions of trade.

15. [15]

    The present is not a case like Lief Investments Pty Ltd v Conagra International Fertiliser Co ([1998] NSWCA 284) (Lief) where the evidence disclosed that, although a short form contract purported to incorporate Sinochem’s standard terms of contract, there were in fact multiple (and different) forms of Sinochem’s standard terms of contract in existence at the time of contracting such that the purported incorporation of terms was too uncertain to have any effect. What was said in that case by Sheller JA, with whom Mason P and Beazley JA agreed, was that:

16. [16]

    Michael Hill’s argument, as I understood it, was that the ticking of the box would only bind it to Gispac’s terms and conditions if Gispac could prove that the link was operable in May 2014 and 2015 and exactly what document would be produced by clicking on it. Michael Hill then relied upon Gispac’s inability to demonstrate this to the primary judge’s satisfaction as fatal to Gispac’s attempt to establish the terms of the Sales Agreements upon which it was purporting to sue Michael Hill. This argument involved a subtly different construction to the clause to that favoured by the primary judge and relied upon by Gispac. Michael Hill’s construction was tantamount to saying that, by ticking the box, it was bound by whatever was to be physically found by clicking the link as opposed to a construction that, by ticking the box, Michael Hill was bound by Gispac’s terms and conditions of trade.

17. [17]

    Michael Hill’s preferred construction would permit it to take advantage of the serendipitous fact of Gispac’s inability at the time of commencement of the proceedings in 2019 to replicate what may or may not have occurred physically in 2014 or 2015 in circumstances where, as Mr Bogatez explained, “[i]n or about 2016, the Terms were updated to a new set of terms, and accordingly the URL Terms Link to the version '23 1 2012_reviewed' was no longer operational from that point onwards”: [32] of Bogatez’ Affidavit of 17 November 2020.

18. [18]

    In circumstances where the parties plainly intended to be bound by additional terms and conditions that did not appear on the face of the Sales Agreements, and manifested that intention by Gispac requesting and Michael Hill ticking the relevant box, the construction adopted by the primary judge is much to be preferred, consistent with what this Court said in Lief, in circumstances where the uncontested and unchallenged evidence was that Gispac had one set of trading terms and conditions that did not relevantly change between 2012 and 2016, and the mind and will of the company identified what those terms were in his evidence.

19. [19]

    In relation to grounds 3-5, I agree with Payne JA’s reasons, and the orders his Honour proposes.

20. [20]

    PAYNE JA: I have had the benefit of reading the judgments of Bell CJ and Basten AJA in draft.

21. [21]

    In relation to ground 1, the underlying evidence about the “2012 Terms” incorporated in the relevant contracts relied upon by Gispac has been set out in their judgments. Each of Bell CJ and Basten AJA have dealt with that evidence and come to different conclusions about its breadth and meaning.

22. [22]

    I agree with Bell CJ about ground 1, principally because the primary judge, who was in the best position to address the real issues litigated in the trial, made a finding that the evidence established that a set of terms identical in all respects to the 2012 Terms existed at Gispac’s office, as at 5 May 2014 and 8 May 2015 (being the two dates on which the Sales Agreements were executed by Michael Hill).

23. [23]

    There was no challenge made in a statement under UCPR r 51.36 or in the Amended Notice of Appeal to that finding of fact. I am not persuaded that the finding of fact was limited to Mr Bogatez’s state of mind.

24. [24]

    Whilst I find the reasoning of Basten AJA about ground 1 otherwise persuasive, I have concluded that ground 1 should be dismissed.

25. [25]

    In relation to ground 2, I agree with Basten AJA that the ground must be upheld for the reasons he gives at [180]-[190].

26. [26]

    In relation to grounds 3-5, assuming that ground 1 was dismissed, and ground 2 upheld, the appellant did not submit that cl17, dealing with exclusivity, was not incorporated into the three sales agreements executed by the appellant in May 2014 and May 2015.

27. [27]

    As to ground 3, the respondent accepted that it should be upheld and accepted that the quantum should exclude the “Late 2018 Invoices” (as sought in ground 3). This would adjust, downwards, the award by $42,727 to the amount referred to at ground 5(b)(ii), leaving a total in dispute of $82,378, which is the subject of ground 4. The remaining sum identified by the primary judge as damages for breach of cl 17 was not in dispute. The appellant submitted that if ground 3 were upheld and ground 4 dismissed, this Court should make an award of $359,858.00 plus interest to the respondent.

28. [28]

    Leave to advance ground 4 should be refused. There was a common position at trial that if the product had been ordered during the relevant period but invoiced after, it was caught by the damages claim. This ground seeks to challenge that common position. No submissions were made, and no evidence was led, before the primary judge concerning what was meant by “required at destination”. The factual premise upon which the ground is based (namely that the stock was required by a particular time) could have been tested at trial had the issue been raised. I am satisfied that Gispac lost an opportunity to lead evidence on this subject and that, for that reason, the case not tested at trial should not be allowed.

29. [29]

    As the appellant is entitled to succeed on ground 3 and not ground 4, which is what I have found, the appropriate award to the respondent is the amount the appellant agreed (on those assumptions) was appropriate, $359,858 plus interest.

30. [30]

    Although only filed for more abundant caution, the appellant’s motion dated 7 June 2024 seeking leave to file the amended notice of appeal should be allowed, although, as I have said, leave to rely on ground 4 should be refused.

Orders

1. [31]

   For the foregoing reasons I propose the following orders:

   1. (1)

      The appellant’s motion dated 7 June 2024 should be allowed. Leave to rely on ground 4 refused.

   2. (2)

      Appeal allowed in part.

   3. (3)

      Set aside the orders of the primary judge made on 31 January 2024 and in lieu thereof order:

   4. (4)

      The respondent pay the appellant’s costs of the appeal.

   5. (5)

      Within 7 days of the date of delivery of this judgment the appellant file submissions (limited to 3 pages) about the order for costs of the trial which should be made.

   6. (6)

      Within 14 days of the date of delivery of this judgment the respondent file submissions (limited to 3 pages) about the order for costs of the trial which should be made.

   7. (7)

      The Court will deal with the question of costs of the trial on the papers.

2. [32]

   BASTEN AJA: The appellant, Michael Hill Jeweller (Australia) Pty Ltd, is a retailer of jewellery and accessories, having in 2015, some 167 retail stores in Australia. From 2014, it also traded under the brand name “Emma & Roe”. A related company operated 52 retail stores in New Zealand.

3. [33]

   Between September 2003 and May 2018, the appellant purchased small and large paper bags for packaging goods for customers from the respondent, Gispac Pty Ltd. In 2017 a dispute arose as to the terms on which the parties had contracted. Gispac alleged that Michael Hill was committed to purchasing a minimum number of bags annually and was required to purchase exclusively from Gispac. In the event of a shortfall in the number of bags ordered, calculated on a quarterly basis, Gispac claimed it was entitled to invoice Michael Hill for the value of the shortfall. Further, to the extent that Michael Hill had contracted, prior to the termination of its agreements with Gispac, to obtain packaging from a different supplier, Gispac was entitled to damages for breach of an exclusivity provision in the agreements.

4. [34]

   The primary judge, Gleeson J, upheld Gispac’s claims and awarded judgment in its favour in the amount of $2,259,971.40 together with interest from the date of commencement of the invoices. [1] Subsequently, the primary judge varied the costs order to require that Michael Hill pay Gispac’s costs of the proceedings assessed on an indemnity basis on and from 11 July 2020. [2]

5. [35]

   By a notice of appeal filed on 22 March 2024, Michael Hill appealed from those orders, contending that it was not liable under the agreements and that the proceedings brought by Gispac should have been dismissed. In the alternative, depending on the scope and operation of the exclusivity clause (assuming it was engaged), judgment should have been limited to an amount falling between $277,000 and $360,000 plus interest.

6. [36]

   A further procedural issue arose in relation to aspects of the appellant’s submissions in support of grounds 1 and 4. Gispac, in its written submissions filed on 5 June 2024, submitted that the construction of the agreements had not been raised below and could only be relied upon with leave of the Court and leave had not been sought. However, order 1 sought in the notice of appeal had sought leave, to the extent necessary, to argue the points raised by grounds 2 and 3-5. By a notice of motion dated 7 June 2024 and filed on 12 June 2024, leave also was sought, if required, with respect to ground 1. [3]

7. [37]

   By consent, the question of leave was stood over for consideration at the hearing of the appeal and was addressed in the course of oral submissions: determination of the issue was reserved and will be addressed below. Although the question of leave does not depend on the merits of the appeal, it cannot usefully be considered without an understanding of the issues and the nature of the submissions, which included claims of prejudice if leave were to be granted. However, it is convenient to record that as to grounds 1 and 2 leave was not required, but that, if it had been, it should be granted.

Issues on appeal

1. [38]

   To explain the issues raised by the appeal, it is necessary to set out the contractual background to the dispute.

2. [39]

   Only two witnesses were called to give oral evidence. For the plaintiff at trial, Edwin Bogatez, the founder and director of Gispac, gave evidence as to the supplying of packaging to Michael Hill since September 2003. Michael Hill, the defendant below, called Christopher John Colvile, who was during the relevant period its Group Distribution Manager and from late 2012 signed most of the sales agreements in evidence. Each provided two affidavits.

3. [40]

   The following matters were not in dispute. On 5 September 2003, at the beginning of the commercial relationship between the two companies, Michael Hill provided an “Account Application”, [4] and thereafter entered into a number of sales agreements for the supply of packaging products “by way of bulk order”. [5] When the “Account Application” was discovered is unclear: according to an email from Mr Bogatez to Tom Lima of Michael Hill, dated 7 July 2017, Gispac did not then have a copy of the original account application. However, an account application dated 5 September 2003 was annexed to Mr Bogatez’ first affidavit.

4. [41]

   From an unidentified date, not later than early 2012, Gispac offered a new ordering and delivery facility, known as ePlus, which allowed individual stores to send orders electronically to Gispac for packaging to be delivered direct to the stores.

5. [42]

   The earliest sales agreement in evidence was dated 26 November 2012 and was for a bulk delivery; otherwise, it was in relevantly identical terms and form to the subsequent sales agreements. Each sales agreement was in the form of a quotation, valid for 7 days, with a space at the end for signature by both parties. It was to be inferred that the quotation constituted an offer, which was accepted by the customer signing and returning the document to the supplier.

6. [43]

   In every sales agreement, the first page identified a postal address and delivery address, being Michael Hill at a GPO box in Brisbane. (The same delivery address was identified even for deliveries to be made in New Zealand or Canada.) The second box, which constituted the bulk of the document, identified the item to be supplied, such as “Michael Hill Large Pink Matt Lamination Paper Bag”, followed by a quantity, a unit price and a total price. Below that line was a detailed specification of the product to be supplied. The final item was “Split Delivery”, with entries such as “Split Shipment x 3”, which was understood to refer to Gispac’s arrangements with its suppliers. For bulk orders, the item simply recorded “Bulk”.

7. [44]

   There followed a second heading, “Terms”. Three of the common items under that heading were “Payment Terms”, “Delivery Charge” and “Lead Time”. Where the ePlus facility operated, three further headings were included in the following terms:

8. [45]

   Under the identified terms, there was a statement which read:

9. [46]

   At the foot of the first page there was then a “Sub Total”, which was the total price identified at the head of the box, followed by an amount of GST and a “Total Amount”. There followed a further box and space for signatures:

10. [47]

    The second sales agreement in evidence was a quotation dated 11 February 2013 for 100,000 large paper bags, with a total price, including GST, of $50,600. Under the heading “Terms”, there was provision for a “Lead Time” of “Approx 12-14 wks due to Chinese New Year”. Other agreements had lead times of “Approx 8 – 10 weeks”.

11. [48]

    The first eight sales agreements in evidence, dated from 26 November 2012 to 12 December 2013, each contained the box headed “Terms and Conditions of Trading” (the T&C box, or incorporating clause) set out above, but in no case was there a tick in the space provided. The first sales agreement in which the T&C box was ticked was dated 15 January 2014. Thereafter, with one exception, in each case, including those for bulk delivery, the box was ticked. The first issue on the appeal was whether the ticked T&C box was effective to incorporate into the terms and conditions applicable to the sales agreement the document which might have been located at the URL provided.

12. [49]

    The issue arose with respect to three sales agreements which were the subject of the proceedings, each of which was signed by Mr Colvile and included a tick in the T&C box. The relevant details of the agreements will be noted below, but the first two agreements in issue were signed on 5 May 2014; the third was signed on 8 May 2015.

13. [50]

    There were two factual questions at trial, being (i) whether any document was available at the URL referred to in the T&C boxes in May 2014 and 2015, and (ii) if so, what that document was. Gispac contended that the document was a document headed “Terms and Conditions of Trading”, with a subheading “relating to all sale agreements entered into with Gispac Pty Ltd”, a copy of which was downloaded with the identifying footer, “Gispac – Terms and Conditions of Trading – 23 1 12_reviewed (2)”. That document was referred to in the primary judgement as “the 2012 Terms”, a designation continued below.

14. [51]

    As to (i), after considering evidence that the document was only available on Gispac’s internal server, that the URL link was not underlined as is usual, and that there was no evidence of complaint from customers that they could not access the document, the primary judge concluded:

15. [52]

    As to (ii), Gispac contended that the sales agreements incorporated the 2012 Terms. Gispac contended that that document contained the terms and conditions in force in both May 2014 and May 2015.

16. [53]

    On the assumption that the 2012 Terms were effectively incorporated into the sales agreements, a further issue raised by ground 2 of the appeal was the proper construction of the 2012 Terms. The 2012 Terms fell into three categories, namely (i) definitions (cl 1), (ii) general provisions applying to all sales agreements (cll 2-16) and (iii) certain provisions (cll 17-21) appearing under the bolded subheading:

17. [54]

    Two clauses were of central importance in relation to Gispac’s claims to be entitled to payment in the case of a “shortfall”. These were cll 18 and 21 which provided as follow:

18. [55]

    Read together, these provisions envisaged a two-year contract which would automatically roll over for a further two-year period (absent termination on six months’ notice) pursuant to which the customer would be required to purchase a minimum annual quantity in quarterly amounts constituting 25% of the annual quantity. The first issue, identified by reference to the application of cl 18, was whether that regime was consistent with the terms of each of the sales agreements.

19. [56]

    There was a subsidiary question as to the commencement date of the agreements, stated in cl 21.1 to be the date of execution of the Account Application. On Mr Bogatez’ evidence, there was one Account Application made by Michael Hill, in 2003, although the terms of the application and the basis on which payment was to be made at that time were not in the material before this Court. The primary judge accepted that each contract commenced to run on the day it was executed by Michael Hill, a finding which is not challenged. However, it will be appropriate to refer shortly to the reasoning by which that conclusion was reached.

20. [57]

    Two other clauses were relevant. First, was a general provision relating to termination which provided as follows:

21. [58]

    Further, there was provision for price changes in cl 20 (applicable to ePlus sales agreements):

22. [59]

    A separate issue arose as to the operation of cl 17 which was in the following terms:

23. [60]

    After giving notice to terminate the agreements, Michael Hill commenced ordering packaging for a number of products, including large and small paper bags, from a third party (Jewel Pak International), the first invoice being dated 23 October 2016.

24. [61]

    The application of the exclusivity provision turned upon a number of considerations, including the period for which the relevant agreement operated, the product in question, and the party bound by the terms of the exclusivity provision. These issues were raised by grounds 3-5.

25. [62]

    Ground 1 in the notice of appeal read as follows: [6]

26. [63]

    Putting to one side the question of reliance on Mr Colvile’s subjective intention in par (b), ground 1 encompassed two propositions which, as the submissions were developed, were put in the alternative, namely:

    1. (1)

       the only terms and conditions incorporated into the sales agreements were those which were to be found at the URL identified in the T&C box;

    2. (2)

       there was no evidence sufficient to establish that the 2012 Terms were the terms which were available in May 2014 and May 2015 at the URL.

27. [64]

    As will appear, these arguments were not entirely discrete. In substance, however, the first argument turned on the proposition that if the terms and conditions were not where they were said to be, they were not incorporated. That argument is analogous to saying that where a contract identifies the terms and conditions by reference to an attachment, but there is no attachment, the contents of the attachment do not constitute part of the contract. The second argument, described as the “provenance” of the 2012 Terms, was that, even if one could look elsewhere for the document described by reference to the URL, Gispac had failed to establish that the 2012 Terms were in fact that document.

28. [65]

    Ground 2 was in the following terms:

29. [66]

    The assumption underlying the separate formulation in ground 2 was that the 2012 Terms might have been incorporated by reference, and yet not all were engaged. On their face, the elements of ground 2 required a consideration of the text, structure and purpose of the sales agreements, by reference to the provisions of the 2012 Terms. The appellant’s submissions, however, put those arguments in a broader context, which included the previous dealings between the parties, so far as these were recorded in the evidence, and as represented in part by a chronology of the 21 sales agreements dating from November 2012.

30. [67]

    There may be an issue as to the proper manner of addressing the matters raised in ground 2, although the choice may not affect the outcome, as opposed to the structure of the discussion. For example, in Trustees Executors and Agency Co Ltd v Peters, [7] the High Court considered an option agreement given by a landowner to its lessees permitting the lessees to purchase the land and stating:

31. [68]

    The first question was whether the relevant terms and conditions were to be found in a document approved by the Institute in 1920 and applicable at the time the option was given, or a later version issued in 1953 and applicable when the option was exercised in 1956. Kitto J held that the intention of the parties was to use the version in force at the time the option was granted, but with questions of applicability determined at the time the option was exercised: at 548. Kitto J then stated:

32. [69]

    There are, in practical terms, two ways of addressing the problem of inapplicable or inconsistent terms. The one adopted in Peters is to read the incorporating provision as subject to an implied exclusion of terms which are not engaged or are inconsistent with other aspects of the contractual relationship. The alternative approach is to incorporate all the terms of the document referred to and seek to read any inconsistent terms of the resulting contract harmoniously, [9] or subject to a primacy principle, arguably giving effect to the agreed terms over the incorporated terms. [10]

33. [70]

    The former approach is not only consistent with Peters, and that adopted by the House of Lords in Thomas (TW) & Co Ltd v Portsea Steamship Co Ltd, [11] but conforms to the modern approach to the construction of contractual provisions which requires that they be read in context and with an eye to their purpose.

34. [71]

    This approach has the particular merit in the present case where the three sales agreements (in May 2014 and May 2015) followed an extended commercial relationship involving the two parties and a series of like sales agreements. Although the outcome may not differ from the alternative approach, it will be adopted below. The result is that, in considering ground 1, it will be appropriate to have regard to the matters raised under ground 2. However, ground 2 will also be addressed below in accordance with its assumption.

Structure of primary judgment

1. [72]

   In order to understand the nature of the challenges set out in grounds 1 and 2, it is necessary to outline the structure of the primary judgment.

2. [73]

   After providing a brief background and overview of the issues, the judge dealt with evidential matters under the heading “The material facts”: at [10]-[46]. In the course of that analysis, there was a subheading “Michael Hill’s ticking of the terms and conditions box referring to the 2012 Terms”: at [28]-[32]. There are two aspects of this passage which may be noted.

3. [74]

   First, the judge dealt with the evidence of Mr Colvile, who had signed the sales agreements in May 2014 and May 2015. The judge accepted Mr Colvile’s evidence and made the following finding:

4. [75]

   Relevant to the present issue, the judge continued:

5. [76]

   The findings as to the subjective beliefs and intentions of Mr Colvile were not relevant to the proper construction of the sales agreements (although they would have been to certain of the defences). Further, although the appellant took exception to the conclusion stated at [32], it is clear that it was not intended as a reasoned conclusion, but merely as an introduction to the succeeding discussion as to whether the URL link was operable at the relevant time. The conclusion as to that issue at [44] has been noted above.

6. [77]

   At [47] the primary judge identified as issue 1(a), the question: “Were Gispac’s 2012 Terms incorporated into each of the sales agreements?” The consideration of that question commenced at [49]; the final conclusion was stated at [84].

7. [78]

   The judge accepted that Gispac had “the onus of proving that the 2012 terms were incorporated as terms of the sales agreements”: at [50]. He then set out the applicable legal principles: at [54]-[71]. (It will be convenient to deal with the cases relied on by the primary judge in considering the submissions of the appellant.) In his conclusions (identified later), the judge accepted, at least implicitly, the submissions of Gispac, which were stated in the following passage:

8. [79]

   The submissions of Michael Hill, set out in the following passages, were rejected:

9. [80]

   In identifying the applicable legal principles, the judge referred, correctly, and uncontroversially, to the approach to be adopted in construing the contract:

10. [81]

    After reviewing the cases, the conclusions reached were expressed under the heading “Application of principles to the facts”, in the following passage:

11. [82]

    A second passage said to involve the application of the stated principles dealt with Mr Colvile’s subjective state of mind: at [73]. Its relevance to the conclusion that “the 2012 terms were incorporated as terms of the sales agreements” was by no means clear. The passage may have been misplaced as the last sentence implied that the findings were relevant to equitable and other defences relied upon by Mr Michael Hill, which they clearly were. (There was no challenge on appeal to the judge’s rejection of those defences: accordingly, these findings need not be considered further.)

12. [83]

    The judge’s conclusion was as follows:

13. [84]

    Two further observations are in order at this point. First, the discussion of the cases appeared to be primarily directed to the rejection of Michael Hill’s submission that this was “an unsigned document case”: at [54]. The submission was based upon the proposition that, although Mr Colvile signed the sales agreements, and ticked the relevant box, he did not sign the document containing the 2012 terms and the matter should therefore be treated as a “hybrid” case. The proposition that the signed document cases all involved terms which were either not attached to the signed document or not otherwise provided, was, as the judge noted, inconsistent with a “hybrid” analysis. What may have justified that analysis, but which was not pursued on the appeal, was the combination of two factors, namely, first, that the box to be ticked on the sales agreement was “to confirm that you agree to agree to” certain terms and conditions. Implicit in that language was that a further step would be needed to give effect to the 2012 Terms. The second factor, which gave plausibility to that reading, was that the 2012 Terms (if they were the document referred to in the T&C box) included a space at the end for “Customer signature”. However, it is neither necessary nor appropriate to pursue that question on this appeal.

14. [85]

    The second observation is that, having stated issue 1(a) as a question whether the 2012 Terms were incorporated into each of the sales agreements, the primary judge answered that question substantially by reference to the fact that the sales agreements were signed, were intended to be contractual and referred to the 2012 Terms. That did not address what the appellant described as an “evidential void” between the language of the T&C box, properly construed, and the 2012 Terms. The primary judge clearly understood the argument that the document referred to in the T&C box had not been demonstrated on the evidence to have been available at the relevant time, but treated that fact as irrelevant, treatment which lay at the heart of the appellant’s challenge in ground 1.

Applying the incorporating provision

1. [86]

   Counsel for the appellant correctly identified that where a document is said to be incorporated by reference, the first step is to construe the contractual provision said to have that operation. The relevant language is set out in the box which appears at [46] above.

2. [87]

   There was no dispute in the present case that construction of the contracts required “consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose or object of the transaction”. [15] That proposition in Toll v Alphapharm referred to the following passage in the reasons of the High Court in Pacific Carriers Ltd v BNP Paribas: [16]

3. [88]

   Evidence of the surrounding circumstances was admitted in the Court below and the submissions in this Court ranged across that material. That course was appropriate. Questions of context and purpose may be put to one side for present purposes, although it will be necessary to return to them.

4. [89]

   As noted above, Mr Bogatez’ evidence was that the 2012 Terms was a document located on Gispac’s internal server: it was said to be available to customers, but not to the public at large or to competitors. It was a PDF document, which was intended to be available at a specific URL.

5. [90]

   The appellant’s first submission was that if the URL link was not shown to be available and operative, no terms were incorporated by reference. That condition was satisfied by the finding at [44] of the primary judgment (set out at [51] above) that Gispac had failed to prove that the URL link was operable at the relevant time. While having the attraction of simplicity, that submission should not be accepted.

6. [91]

   Reference to terms at an internet location is analogous to a reference to terms in a document attached to the contract. The essential proposition identified in Toll v Alphapharm and related cases discussed above, is that a signature on a document is sufficient, in the absence of vitiating circumstances, to demonstrate acceptance of incorporated terms, even if the document with the terms is not attached as stated in the signed document. Accordingly, even if the party proffering the contract (Gispac) did not make the terms and conditions available in the manner indicated in the signed agreement, and the party accepting the offer (Michael Hill) has not sought to pursue the omission, the accepting party will be bound by the terms incorporated by reference.

7. [92]

   The appellant sought to distinguish Toll v Alphapharm. A relevant contextual circumstance which the reasonable observer would take into account in the present case, it was submitted, was the fact that the relevant terms and conditions were not available to the customer at the identified location. The signature, it was submitted, would not carry the same implicit representation in such a case. For reasons which will be explained below, Toll v Alphapharm was distinguishable on its facts, but for a different purpose. It was not itself an “attached document” case.

8. [93]

   The appellant’s alternative submission involved two steps. The first was to construe the incorporating clause; the second was to match the document relied upon by the proffering party as the document which would have been available had the incorporating clause operated according to its terms. The appellant submitted that in this case there was an “evidential void”, because Gispac had not established that the 2012 Terms was the document which would have been available had the URL been accessible.

9. [94]

   The T&C box identified the PDF in terms significantly different from the 2012 Terms provided in hardcopy and identified by its footer as “Gispac – terms and conditions of trading – 23 1 12_reviewed (2)”. Further, the evidence of Mr Bogatez, addressed below, provided an inadequate basis to draw the inference proposed by Gispac. The appellant submitted that there was therefore no basis for inferring that the 2012 Terms was a copy of the document which would have been available had the URL been accessible.

10. [95]

    Gispac argued that this submission was an attempt to reintroduce the notice requirements which apply to incorporation of terms by reference into an unsigned contract into the analysis of a signed contract. In other words, the submission was precluded on the authority of Toll v Alphapharm. The appellant responded that the signed contract cases generally did not address the issue now raised: Toll v Alphapharm itself was a case where the terms were printed on the back of the very form the customer had signed – no issue arose as to the identification of the relevant terms.

11. [96]

    It is then necessary to address the cases in the context relied on by the appellant, starting with the seminal reasoning of the High Court in Toll v Alphapharm. [20] The reasoning commenced by affirming the proposition that rights and liabilities created by a contract are to be assessed objectively:

12. [97]

    The second proposition, which said to be consistent with the first, and which is of immediate relevance was “the significance which the law attaches to the signature (or execution) of a contractual document”. [21] The principal was stated in the following terms:

13. [98]

    This position, Toll v Alphapharm continued, was to be contrasted with the ticket cases and others where there was no signed agreement:

14. [99]

    The appellant accepted wholeheartedly the propositions in Toll v Alphapharm, but said they did not apply in the present circumstances. In Toll, the operative terms and conditions were on the back of the document which the respondent had signed. This understanding of Toll v Alphapharm is confirmed in the joint reasons at [57]:

15. [100]

    Although referring to “the document” in the singular, there is no doubt that the principle applies where the contract is contained within two or more documents. An example may be found in Mainteck Services Pty Ltd v Stein Heurtey SA; [22] as explained by Leeming JA at [114]:

16. [101]

    After reference to Toll at [57], being the passage set out above, Leeming JA further explained:

17. [102]

    Thus, although the agreement was contained in two documents, in circumstances where the second expressly referred back to the first, incorporating obligations under that contract, the contracting parties were bound by those obligations when signing the second agreement. Again, however, this does not engage with the current circumstances where there was no prior contract from which further terms were to be imported. (There had been prior contractual dealings, but they did not engage the Mainteck reasoning, rather the contrary, as explained below.)

18. [103]

    This Court again considered incorporation by reference in Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd. [23] A dispute arose between Warner Bros companies producing Mad Max: Fury Road (the Film) with the services of two well-known identities for production and direction. A Letter Agreement in cl 21 referred to the balance of the terms being “WB standard for ‘A’ list directors and producers”. The only relevant term which was said to have been incorporated by that reference was an arbitration clause, and the Chief Justice restricted his findings to that provision. [24] The Court accepted that it was so incorporated. Two circumstances appear to have been critical to that conclusion. The first was an affidavit of the senior vice-president and general counsel of Warner Bros Pictures exhibiting 56 agreements which contained the arbitration clause. The Chief Justice accepted that the clause was “standard” as a term which was habitually proffered. [25] Further, the Chief Justice noted that “there is no reason to assume that those advising [the respondents], who were experienced in the film industry, did not appreciate the meaning of terms which were ‘WB standard for “A” list directors and producers’”. [26] Thus, while the additional terms were not set out in the Letter Agreement, they were sufficiently described as terms which included an arbitration clause by a description which was understood within the industry.

19. [104]

    The significance of the case for present purposes, the appellant submitted, was the need for the Court to be satisfied as to those two considerations, a need which demonstrated that a party relying upon a term incorporated by reference had to establish the existence of such a term as objectively satisfying the language of the incorporation provision. It submitted that the evidence in the present case did not do that.

20. [105]

    The primary judge referred to the opinion of the House of Lords in Smith v South Wales Switchgear Co Ltd. [27] Switchgear was carrying out maintenance work on equipment operated by a manufacturing company. Due to the latter’s negligence, a Switchgear employee was injured. The contract for maintenance work was expressed to be “subject to our general conditions of contract obtainable on request”. There was an original document titled “General conditions of contract 24001” and two later versions with the descriptions “revised January 1969” and “revised March 1970”. Switchgear did not request a copy but in July 1970 received a copy of the January 1969 version printed on the back of a purchase order. The conditions contained an indemnity clause requiring the supplier to keep the contractor indemnified against loss or damage. As stated by Lord Fraser of Tullybelton: [28]

21. [106]

    Further, Lord Keith of Kinkel stated: [29]

22. [107]

    Again, the appellant contended that the circumstances of the case are distinguishable from the present case, but it may be noted that Smith had further significance in the reasoning of the primary judge. That arose from the consideration by the judge of the following authority:

23. [108]

    With respect, it is by no means clear that the fact that Mrs Ange had a copy of the terms and conditions was unnecessary for the finding of incorporation. It would only have been unnecessary, on the appellant’s case, if the general conditions of business were otherwise identified or identifiable. The conditions had not been attached to the consignment agreement which was executed. It is clear from the reasons of Sifris AJA that this was an essential part of his conclusion. Those reasons commenced at [45] with the statement that the general conditions formed part of the agreement. At [46] the judge noted that Mrs Ange had signed a revised agreement although the general conditions were not attached. He continued:

24. [109]

    Thus, in each of the three cases, (Ange, Smith and Walker) a document containing the general conditions was identified and in fact supplied, although not attached to the relevant agreement. Whether or not it was necessary that the customer have a copy of the document, it was certainly necessary that the means for obtaining it was “clearly indicated”, as in Smith’s case, “by request”. Then, Sifris AJA continued:

25. [110]

    In Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd, [30] the relevant question for present purposes was whether an engineer had been employed by an architect, on behalf of a principal, on the basis of “the ACEA Conditions of Engagement”. The circumstances were straightforward. On 2 February 1994, the architect had written to the engineer seeking a “fee submission for engineering services”: Hyder at [67]. On 8 February 1994, the engineer replied proposing hourly rates and stating:

26. [111]

    The architect responded on 11 February confirming the engagement and requesting that a copy of the ACEA Conditions of Engagement be forwarded to the principal. The work went ahead and a pavement was constructed according to a design proposed by the engineer, which was in fact inadequate for its purpose. In substance, the Court held that the engineer’s engagement can only have been on the basis of the letter of 11 February 1994, accepting the engineer’s offer and seeking that a copy of the ACEA Conditions of Engagement be forwarded to its client. As Giles JA stated: the owner’s attempt to avoid the limitation on the engineer’s liability contained in the ACEA Conditions of Engagement sought to treat “the letter of 11 February 1994 as making a fee proposal open to be accepted without incorporation of the ACEA Conditions of Engagement”. [31] That proposition was rejected as indefensible. There was no doubt as to the identification of the documentary basis upon which the engineer was engaged. The only proposition, which was emphatically rejected by Giles JA, was that the owner “should not be found that it had by its conduct, and without actual notice of the conditions, agreed to be bound by the ACEA Conditions of Engagement”.

27. [112]

    The primary judge also relied upon a Queensland Court of Appeal decision of McBride v ASK Funding Pty Ltd. [32] The proceedings had commenced in the District Court by way of a claim by the respondent for an amount payable under a loan agreement with Ms McBride. Ms McBride had appeared for herself in the Court of Appeal, having pleaded many grounds of appeal some of which were described by Jackson J as “captious”, [33] and supported by a lengthy affidavit of 55 pages with 100 pages of exhibits. The affidavit was described as “in a large part scandalous”. [34] So far as the loan agreement was concerned, the offer was made by the appellant on a form provided by the finance company, which the appellant signed. The form provided for a loan to be made on “terms and conditions set out in this contract which includes the attached Standard Terms & Conditions (version 1)”. [35] Relevantly for present purposes, Jackson J continued:

28. [113]

    The application for leave to appeal was brought from a summary judgment given in favour of the respondent; the application also required an extension of time. The Court was satisfied there was no real prospect of the appellant successfully defending any part of the claim. [36]

29. [114]

    Again, this was a case in which there was no doubt as to the nature and content of the document sought to be relied upon as having been incorporated by reference, although it was not in fact attached to the offer.

30. [115]

    The parties also referred to the judgment of this Court in Lief Investments Pty Ltd v Conagra International Fertiliser Co. [37] The circumstances were different from the present case in a number of respects. The parties had exchanged facsimile transmissions on 21 February 1997, each setting out the specification and terms and conditions and including “other terms and conditions as per Sinochem’s standard contract”. However, on 24 February 1997, the parties signed a separate contract stipulating the terms and conditions, but not referring to the terms and conditions of Sinochem’s “standard contract”. Although the Court held that the standard terms were not incorporated into the final contract, [38] the Court considered whether the reference would have been too uncertain to have resulted in incorporation in any event. Sheller JA observed: [39]

31. [116]

    That conclusion was reached even though (i) Lief Investments had in its possession an unsigned copy of a document and an undated letter from Sinochem attaching a copy of standard terms and conditions and (ii) there was evidence to the following effect: [40]

32. [117]

    However, Lief Investments’ general manager, Mr Yu, acknowledged that there were differences between various terms and conditions annexed to various contracts to which Lief Investments was a party, although the arbitration clause (being the clause in issue) was identical. [41]

33. [118]

    A final passage in the reasons of Sheller JA dealt with incorporation only by express reference, in the course of which he considered cases involving bills of lading and a requirement that there must be “precise words in the bill of lading alleged to do the incorporating, and also the precise terms of the arbitration clause in the charter party alleged to be incorporated”. Not applying that principle to the case before him, Sheller JA accepted that “if the parties had agreed to the incorporation of the terms and conditions of Sinochem’s standard contract and these could have been identified with certainty, there was no textual or policy consideration which would prevent the incorporation of the arbitration clause into the contract of sale”.

34. [119]

    Given the circumstances of Lief Investments, it was unsurprising that the case was relied upon by both parties in this appeal. Ultimately, the question was one to be determined having regard to the nature of the incorporating clause and the document said to constitute the incorporated terms and conditions.

35. [120]

    Finally, the appellant relied on the reasoning in Toyota Finance Australia Limited v Gardiner. [42] The proceedings were between a finance company which had entered into hire purchase agreements with respect to six vehicles with Gardiner Petroleum Pty Ltd, which defaulted on the payments due under the contracts, so that the proceedings were brought against a guarantor, Mr Gardiner.

36. [121]

    As explained by Payne JA, the contracts were each constituted by a suite of documents described in the following terms:

37. [122]

    The terms of the relevant guarantee were contained in cl 14 of a blank pro forma document entitled “Term Purchase Agreement” which Toyota identified as being the “Booklet ‘Terms and Conditions’” referred to at [47].

38. [123]

    Payne JA found no error on the part of the primary judge in not being satisfied as to the provision of the guarantee and indemnity to the respondent at the time the contracts were entered into. First, he noted that the blank pro forma “Term Purchase Agreement” was dated after the hire purchase contracts were executed. Secondly, the title “Term Purchase Agreement” was not the same as the document referred to at [47] of his reasons, receipt of which was acknowledged, namely the Booklet “Terms and Conditions”. Thirdly, evidence from an officer of Toyota, who was not employed by the company at the time the contracts were entered into and who gave no evidence of inquiry as to the company’s practice at the relevant time, but merely stated that each of the agreements “incorporated a booklet of ‘Terms and Conditions’” a copy of which was attached to his affidavits, should be given no material weight. [43]

39. [124]

    In reliance on Lief Investments, the Court was urged to apply the following approach: [44]

40. [125]

    Payne JA rejected that approach on the following basis, which is relied upon by the appellant in the present case, namely:

41. [126]

    The question is whether the primary judge should have found that there was “an evidential void” as to what document was referred to in the T&C box signed by the officer of the appellant. As noted below in considering the issue of leave, the primary judge did make findings as to the link affirmed by Mr Bogatez between the 2012 Terms and the document which would have been available on the URL link in the T&C box, but in a context which raised the issue only obliquely. [45]

42. [127]

    First, the appellant contended that no inference could be drawn in the present case because the terms and conditions were identified as those to be found at a particular site on the internet. At its highest, the submission relied upon the fact that the judge was not satisfied that that site had been accessible at the relevant time. It followed, the appellant submitted, that there could be no incorporation of whatever had been on the site at that time, if anything.

43. [128]

    At a second level, the appellant accepted that the URL identified a document in the form of a PDF file. Accordingly, it was open to the judge to infer that a document containing “Terms and Conditions” was, or had been at the relevant time, available at the URL. On that view, the evidential void was the link between that document and the document put in evidence by Mr Bogatez.

44. [129]

    The material evidence in Mr Bogatez’ affidavit of 17 November 2020 was as follows:

45. [130]

    Mr Bogatez then gave evidence of the URL link and exhibited a copy of the 2012 Terms to his affidavit. The document was headed “Terms and Conditions of Trading”, the contents of which have been discussed above. His evidence continued:

46. [131]

    The primary judge did not accept the statement at par 33 that the URL link was effective and operational, [46] but he did accept that the document available at the link would have been the terms and conditions of trading referred to above. The latter finding was challenged by the appellant.

47. [132]

    The appellant noted that the box in the sales agreement identified a document described as “EquoteNew/docs/gispac_terms_and_conditions_jan2012”. Accepting that that is a description of a document by its name and electronic location, the next step was to consider the document entitled “Terms and Conditions of Trading” relied upon by the respondent which had an electronic identifier at the bottom of each page which read, “Gispac – Terms and Conditions of Trading – 23 1 12_reviewed (2)”. Evidently, that title did not conform to the title of the document identified in the T&C box. Apart from the formal variations, it may be inferred that the document proffered, described as “reviewed (2)”, was an amended form of the terms and conditions adopted on 23 January 2012. The inference as to change is strengthened by the name of the URL in the T&C box, commencing “EquoteNew/docs/”, which may be contrasted with the reference to “reviewed” in the footer to the document relied on by the respondent. When the review, and by inference amendment, occurred was unknown. Gispac failed to prove it was before May 2014, or that there was no material change.

48. [133]

    Mr Bogatez stated in his affidavit (at par 31) that the terms used in “all Gispac’s sales agreement [sic] between the period [sic] 2012 to 2016” were “Gispac’s standard terms version ‘23 1 2012_reviewed’”. That statement failed to address the discrepancy between it and the description in the URL in the T&C box. The term “standard” adopted by Mr Bogatez was not a descriptor used on the document itself, nor in the URL link.

49. [134]

    The primary judge dealt with this issue in three passages. First, after dealing with aspects of Mr Colvile’s evidence as to his subjective beliefs, the judge stated:

50. [135]

    As the appellant accepted, evidence of Mr Colvile’s subjective understanding was relevant to a defence of unconscionability: it was not, however, relevant to the proper construction of the contract. Further, the connection with the 2012 Terms depended on evidence of Mr Bogatez, under the heading “Was the link to the 2012 Terms operable in May 2014 and May 2015?” At [33], the judge recorded the evidence given by Mr Bogatez at pars 26-29 of his affidavit, set out above. He noted that the first three paragraphs were admitted without objection but rejected as inadmissible the evidence as to the operation of the URL link at par 29. With respect to the evidence concerning the identity of the terms, the judge stated that the evidence was admitted without objection and continued at [34]:

51. [136]

    It is true that Mr Bogatez was not directed to the terms of these paragraphs in the course of his cross-examination, but he was challenged as to his knowledge of the operation of the URL and stated that he was unable to recall if he had clicked on the link in 2014 or 2015. [47] He was therefore not in a position to state that the document available at that location was the document he described in his affidavit as the 2012 Terms. He was asked if any attempt had been made to search for historical archives recording the URL at earlier dates but was not aware of that having happened. [48] The cross-examiner also sought to establish that Gispac did not conduct its business with Michael Hill on the basis of two-year rolling contracts, or on the basis that Michael Hill was required to pay for any shortfall on a quarterly basis. [49] He was cross-examined as to when he became aware of the terms of cl 18 of the Terms and Conditions of Trading.

52. [137]

    In the line of questions in relation to the contracts or terms of trade that Gispac had with its own suppliers, Mr Bogatez was questioned about his experience of such terms as cll 17, 18 and 21.2 in those contracts. [50] When specifically asked as to “the very first time” he saw the Gispac Terms, and in particular cl 18, he replied “I can’t recall”. [51]

53. [138]

    The effect of the cross-examination was, first, that Mr Bogatez had no direct knowledge of the terms of the document available at the URL location and, secondly, could not recall when he first became aware of the critical term in the document he had identified as being available at the URL location. However, he accepted that Michael Hill had not been supplied with a copy of the 2012 Terms until June 2017. [52]

54. [139]

    Where the parties to a particular agreement or agreements have a long-term relationship, the question whether specific terms are incorporated in a particular set of contracts may depend in part on the contextual background. The terms in question (cll 17-21 of the 2012 Terms) related to those agreements which adopted an ePlus service delivery component, allowing individual stores to place orders directly with Gispac.

55. [140]

    It was common ground that Michael Hill had obtained packaging material from Gispac from approximately 2003. (The Account Application which commenced the commercial relationship was dated 5 September 2003.) [53] Mr Colvile gave evidence that the company was placing orders through Gispac’s ePlus service when he commenced dealing with Gispac in October 2012. [54]

56. [141]

    Prior to the first two agreements relied upon by Gispac, there were in evidence 12 sales agreements dating from 26 November 2012 up to 30 April 2014. Each contained, for each product, a schedule with two parts headed “Specification” and “Terms”. Two had no sub-heading “Delivery Type” under Terms; the other 10 had a sub-heading “Delivery Type” and provided for “EPLUS: Delivery Direct To Stores”. Every sales agreement contained the T&C box, but in the first eight (including six providing for ePlus delivery) the box was not ticked. Three were then ticked, being sales agreements dated 15 and 22 January 2014 and 3 March 2014. The twelfth, dated 30 April 2014 for Emma & Roe products and providing for ePlus delivery, was not ticked.

57. [142]

    On the case presented by Gispac, its Terms and Conditions of Trading were only incorporated into the sales agreements when the T&C box was ticked. Accordingly, cll 17-21 were not incorporated into those sales agreements where the box was not ticked. There was, however, no evidence to support a conclusion that the contractual arrangements upon which the parties operated up until 5 May 2014 changed on that date, or changed with the first ticked T&C box, four months earlier on 15 January 2014.

58. [143]

    In fact, the history of the sales agreements was inconsistent with the proposition that the companies were operating on the basis of a two-year rolling agreement. For example, on 11 February 2013, the senior account manager at Gispac, Neil Duff wrote to Mr Colvile stating:

59. [144]

    Gispac then produced a quotation for 100,000 bags at a total price of $50,600 including GST. On 19 February 2013, Mr Colvile signed the new sales agreement.

60. [145]

    Seven months later, on 6 September 2013, Mr Duff again emailed Mr Colvile in relation to large paper bags in similar terms:

61. [146]

    Mr Colvile replied:

62. [147]

    A further agreement was signed on 11 September 2013 for 150,000 large paper bags. Self-evidently, the agreements were entered into in anticipation of supplies running out, with no intention that the quantities indicated were minimum annual quantities, or that there was a rolling over of the agreement after two years. Indeed, the contracts did not last for a single year, let alone two years. The next agreement dealing with large paper bags was dated 22 January 2014.

63. [148]

    As noted above, the first sales agreement in evidence where the T&C box was ticked was dated 15 January 2014 and involved an order for 50,000 small paper bags. However, the requirement to tick the T&C box appears to have operated generally, and not merely in relation to ePlus deliveries, as claimed by Gispac. Between 6 May 2014 and 7 May 2015, four of the five sales agreements involved bulk delivery, and only one ePlus delivery: all T&C boxes were ticked. Those sales agreements which did not involve ePlus delivery, even if the T&C box was ticked, did not attract the operation of cll 17-21 of the 2012 Terms. That was not inconsistent with Gispac’s case in relation to the three contracts sued upon, but it cast real doubt on the existence of a routine practice to invoke those terms.

64. [149]

    Significantly, if the ticked box were intended to create an annual rolling contract, it should not have been necessary, without some acknowledgement of that fact, to place an order for small bags on 15 January 2014, followed by another order for the same product four months later. Similarly, the order for large bags placed on 22 January 2014 was repeated (for a larger quantity) six weeks later on 3 March 2014, and again (for an even larger quantity) two months later on 5 May 2014. In each case the T&C box was ticked.

65. [150]

    As will be noted shortly, there were changes made by Michael Hill in 2014 in two respects. First, the design of the bags was changed to include a feature known as “Spot UV”. Secondly, a new brand known as Emma & Roe was launched, with separate packaging orders. However, before that took place, Mr Duff (Gispac) sent Mr Colvile (Michael Hill) a document on 1 April 2014 which appears to have been consistent with past practices, titled “Michael Hill Forecast & Usage Report”. These reports provided usage figures for the last twelve months together with forecast usage based on the last year. The document was attached to an email which, after referring to the attachment continued:

66. [151]

    On 2 April 2014, Mr Colvile responded to Mr Duff:

67. [152]

    On 3 April 2014, Mr Duff responded:

68. [153]

    With respect to the new brand, Emma & Roe, sales agreements were signed on 30 April 2014 (5,000 small bags and 5,000 large), 26 August 2014 (same quantities), 8 December 2014 (10,000 of each), 4 March 2015 (30,000 small and 40,000 large) and 8 May 2015 (100,000 small and 100,000 large). The last contract was that upon which proceedings were brought and was referred to as the “Third Sales Agreement”.

69. [154]

    Although the Emma & Roe sales agreement of 30 April 2014 provided for ePlus delivery direct to stores, it is by no means clear that that was in place at that time. On 9 July 2014, Gispac was seeking details in order to set up the systems at their end. [55] On 21 August 2014, Ms Andronas (Gispac) sent an email to Mr Colvile stating:

70. [155]

    On 26 August 2014, Mr Colvile signed a further sales agreement in similar terms to the 30 April agreement which also said that a “lead time” of “approx. 8-10 weeks from pre-production sample approval” applied. One might infer that the 30 April 2014 agreement had been superseded.

71. [156]

    On 8 December 2014, Ms Andronas sent Mr Colvile a new sales agreement for the Emma & Roe paper bags, stating:

72. [157]

    The quote was in fact dated 2 December 2014 but was signed by Mr Colvile on the day it was received, 8 December 2014.

73. [158]

    On 19 February 2015, Ms Andronas emailed Mr Colvile in relation to Emma & Roe again, noting the stock on hand as being, small – 9,750 and large – 13,250. She continued:

74. [159]

    In response, on 28 February 2015, Mr Colvile emailed in the following terms:

75. [160]

    Ms Andronas responded in similar terms to her previous email attaching a sales agreement in the standard form of a quotation dated 3 March 2015 with a revised quantity of 30,000 small paper bags and 40,000 large paper bags. (There may have been some further communication because the number of large bags increased from 10,000 to 40,000 and the number of small bags from 10,000 to 30,000.) Mr Colvile signed the agreement, having ticked the box, on 4 March 2015.

76. [161]

    On 21 April 2015, Mr Colvile emailed Ms Andronas with respect to Emma & Roe bags stating:

77. [162]

    There was a further email on 23 April 2015 from Ms Andronas noting the total yearly usage for both brands in NZ as, small – 120,000 and large – 110,000, and asking whether separate sales agreements were required for Australia and New Zealand. She concluded:

78. [163]

    Mr Colvile replied on 24 April 2015 saying:

79. [164]

    On 8 May 2015, Ms Andronas responded with her standard form of request to sign and return. The Emma & Roe agreement for New Zealand provided for 10,000 large bags and 20,000 small bags, in accordance with Mr Colvile’s instructions. He signed the agreement on 8 May 2015. A second agreement for Emma & Roe (AU) provided for 100,000 small and 100,000 large bags, an agreement which Mr Colvile also signed on 8 May 2015. This was the third agreement relied upon in the proceedings.

Consideration and conclusions

1. [165]

   As the primary judge correctly accepted, by signing each of the sales agreements and ticking the T&C box, the appellant was bound by the terms and conditions identified in accordance with the terms of the incorporating provision, namely the T&C box itself. However, in circumstances where the primary judge was not satisfied that the terms and conditions could be accessed at the URL identified in the T&C box, there was a separate question as to whether the 2012 Terms identified by Mr Bogatez in his affidavit were the terms and conditions referred to in the T&C box.

2. [166]

   It may be inferred from the footer on the 2012 Terms document annexed to Mr Bogatez’ affidavit that the document was obtained from an electronic source, and was capable of constituting the document found at the URL identified in the box. Nevertheless, the evidence connecting it with the URL is not persuasive. First, the name of the document is not the same as the description provided in the URL. Secondly, the footer to the document permits an inference that the document was not simply that prepared in January 2012, as the URL indicated, but one which had been reviewed.

3. [167]

   That inference gives rise to two levels of uncertainty in circumstances where the respondent bore the onus of proof. The first is whether the relevant terms and conditions were those found in an unamended document prepared in 2012, or whether they were the terms and conditions in force at the date the sales agreements were signed. If they were the original terms and conditions, there is no good reason to conclude that the document provided by Mr Bogatez was in the original form prepared in January 2012.

4. [168]

   In accordance with the reasoning in Switchgear, it is arguable that the parties intended that terms and conditions in force at the date of signing a particular sales agreement were the terms and conditions to apply in relation to that sales agreement. According to Mr Bogatez, [56] it was indeed the terms and conditions “as they existed at the time those agreements were entered” which were the applicable terms and conditions. Given there was no change in the description as “EquoteNew” in the URL, it is not likely that there had by 2015 been a significant change. Further, had there been a change, it is probable that the Gispac would have advised the appellant. The problem for Gispac remained, namely the absence of documentary evidence as to the form in which the terms and conditions of trading existed in May 2014 or May 2015.

5. [169]

   Mr Bogatez’ evidence did not fill the evidential gap. Mr Bogatez did not say in his affidavit how or when he obtained a copy of the 2012 Terms, nor, if as appears it was downloaded, from what source it was downloaded. In his oral evidence he was unable to recall when he first saw the particular terms in issue.

6. [170]

   In Switchgear, the choice was between three sets of terms and conditions each of which was identified as operating at a particular date. In circumstances where Gispac bore the onus of establishing the terms and conditions in operation at the two relevant dates, the approach adopted in Switchgear does not assist. In my view, the correct inference is that the terms and conditions were not “standard” in the sense that they were the same terms at all times; rather, they probably predated the introduction of ePlus delivery in about 2012. Further, it is more likely than not that the terms which were formulated in January 2012 had been reviewed and changed by 2021.

7. [171]

   Two internal factors support the inference. First, cl 15 of the 2012 Terms permitted Gispac to make amendments “to these terms and conditions of trading or any sale agreement from time to time” in certain conditions, including where the customer agrees to the amendments or the amendments will benefit, or will not permanently and adversely affect the customer: cl 15.1(a) and (b). Clause 15 may not have been in this form in the original document, but its presence in the 2012 Terms supports the inference that amendments may have been made from time to time before 2021.

8. [172]

   Secondly, the period of an agreement identified in cl 21, was referred to in the definition of “Term” in cl 1, as the period set out “in any Sales Agreement under an ePlus facility or otherwise in accordance with cl 23 of these Terms and Conditions of Trading”. Although it is possible that the reference to “clause 23” was a typographical error, it is at least equally likely that there was at some stage a cl 23, but the terms were amended after the definition was included, without the effect of the amendment being carried through to the definition. If that is the correct explanation, it is an amendment which would have been made after the introduction of the ePlus facility.

9. [173]

   For these reasons, the primary judge should have declined to find that the 2012 Terms obtained by Mr Bogatez in 2021 were the terms and conditions of trading which operated in May 2014 and in May 2015.

10. [174]

    This conclusion is strengthened when regard is had to the context in which the sales agreements were executed. The practices of the parties prior to May 2014 (and, with respect to Emma & Roe, before May 2015) described above were not consistent with the operation of the sales agreements described by Mr Bogatez.

11. [175]

    Secondly, the 2012 Terms did not conform to the terms of the sales agreements. This may be illustrated by the analysis of the terms on which the appellant relied as ground 2.

12. [176]

    The conclusion to be drawn from the objective circumstances revealed in the evidence outlined above is that prior to May 2014 and May 2015 respectively, the parties operated on a commercial basis which was inconsistent with the application of at least cll 18 and 21 of the 2012 Terms. The evidence contained 12 sales agreements entered into prior to 5 May 2014, over a period of 17 months. Throughout that period the delivery service adopted was ePlus. The only variation in the nature of the sales agreements was that the T&C box was routinely not ticked between 26 November 2012 and 14 January 2014. Why the box was ticked on 15 January 2014 was not the subject of evidence, but appears to have been a step taken by Mr Dennis, for Michael Hill, in the absence of Mr Colvile. The first request to tick the box was found in an email of 23 January 2014 from Simon Cook of Gispac, apparently in the absence of the usual Gispac officer, Mr Duff. When Mr Duff returned on 3 March 2014, his email requesting execution did not refer to ticking the box, although a further request the following day for a different product stated:

13. [177]

    A further reference to signing and returning the attached agreement, “remembering to tick the terms and conditions” appeared in an email from Mr Cook of Gispac dated 28 April 2014. A request from Mr Duff on 30 April 2014 did not contain that instruction; an email from Ms Andronas of 26 August 2014 asked Mr Colvile to “please tick and sign sales agreement at your earliest convenience”. Subsequent requests from Ms Andronas contained a similar reminder to tick the T&C box.

14. [178]

    It is apparent that a practice of ticking the T&C box developed between January 2014 and May 2014. The only basis for the change in practice which can be inferred from the evidence was a change in personnel at Gispac. There is no basis for inferring any intention on either side to vary the terms and conditions on which the parties were operating. The objective circumstances contradicted such an inference.

15. [179]

    For these additional reasons, the proper conclusion is that, as at May 2014 when the first two agreements sued upon were executed, there was no intention to conduct a contractual relationship based on cll 18 and 21 of the 2012 Terms. The same reasoning applies with respect to the third agreement entered into with respect to Emma & Roe packaging in May 2015. The appropriate conclusion is, therefore, that neither of those clauses was engaged.

Ground 2

1. [180]

   Ground 2 accepted that the 2012 Terms had been incorporated into the sales contract but contended that the reference in the Sales Schedule to “QTY” did not mean “Annual Quantity” for the purposes of cll 1 and 18 of the 2012 Terms. [57] It followed that there was no annual quantity and no quantity, 25% of which would constitute a guaranteed quarterly order. Rather, the agreement included a promise by the appellant to purchase the quantity of products specified under the heading “QTY” in the schedule for the total price specified.

2. [181]

   Of the three passages in the judgment with which ground 2 took issue, it is convenient to start with the second, which read as follows:

3. [182]

   It is true that the schedules to the sales agreements said nothing about “minimum amounts”; nor did cl 18. Clause 18.1 set out an agreement whereby the customer would purchase an amount that is equal to or exceeds “the Annual Quantity specified in the Sales Schedule”. The term “Annual Quantity” is the defined term and introduces the concept of “the minimum amount” to be purchased by the customer over a period of 12 calendar months. The reasoning at [117] appears to assume that, once it is accepted that the 2012 Terms are incorporated, whatever quantity of a product may be found in a Sales Schedule must be construed as the “Annual Quantity” to be purchased within a twelve-month period.

4. [183]

   Although the legal analysis speaks of a contract constituted by the Sales Agreement, into which certain terms and conditions are incorporated, a more practical approach would be to treat the 2012 Terms as the primary contractual document, into which the details to be found in the Sales Schedule are incorporated. Nevertheless, however one approaches the interrelationship of the two documents, it is necessary in order to uphold Gispac’s approach to find an annual quantity “specified” in the Sales Schedule: it is not enough to find that the Sales Schedule refers to a quantity.

5. [184]

   That which is “specified” must be identified expressly. No “Annual Quantity” is identified expressly in the Sales Schedules of any sales agreement before this Court. Clause 18 did not state that the “quantity” of a product identified in a Sales Schedule is to be taken as an “Annual Quantity”. It is possible that evidence of a commercial practice existing at the time the 2012 Terms were first incorporated into the sales agreement might establish the necessary connection. However, practice before and after the first incorporation of the 2012 Terms was inconsistent with that implication. It was also inconsistent with the implication of a two-year contract period, creating a fixed term agreement for annual supplies during that period. As noted above, the commercial practice revealed a series of contracts for specified amounts, each being replaced by a new contract when supplies ran short.

6. [185]

   The appellant submitted that the reasons for the finding, stated in conclusory terms in the last sentence of [117], were to be found in [115], in which the primary judge wrote:

7. [186]

   There were three problems with this reasoning. First, “the benefits of the ePlus facility” did not coincide with the incorporation of the 2012 Terms. The implication that the consideration for the benefit was a fixed term contractual obligation to purchase minimum quantities on a quarterly and annual basis was not supported by the evidence of commercial practice between the parties.

8. [187]

   Secondly, the inference that Gispac was committed to supply bags at a fixed price up to the contractual quantity “for as long as Michael Hill determined” carried little weight, legally or factually. Legally, as the primary judge recognised, under cl 20.3 Gispac could increase the price in specified circumstances. [58] However, although the power to increase prices was identified by reference to “specified circumstances”, the right is not aptly described as “limited”. Rather, Gispac was entitled to increase prices “to reflect any increase in the cost to Gispac of producing and/or delivering the Products due to any factor beyond Gispac’s reasonable control”. The right was not exercisable only after a specified period had elapsed; it could be exercised on a single occasion or from time to time.

9. [188]

   Thirdly, the provision of cl 20.3 in relation only to ePlus contracts implied that the rolling two-year contractual period carried with it a risk for Gispac that costs might increase over that period, whereas with other contractual arrangements Gispac took the risk of increased cost in fixing its price. Significantly for present purposes, cl 20.3 did not demonstrate Gispac’s concern that its customer might drag out the period over which the bags were being supplied. Gispac was protected against that eventuality by the shortfall entitlement under cl 18, which applied in the same circumstances as cl 20, namely use of the ePlus facility.

10. [189]

    It follows that inferences derived from the supposed uncommerciality of Michael Hill’s construction of the sales agreement with the 2012 Terms lacked substance. Such weight as might be given to that reasoning does not allow the rewriting of the Sales Schedule as specifying an Annual Amount when, in its terms, it did not purport to do so.

11. [190]

    On this basis, ground 2 should be upheld. However, there are other difficulties in applying Gispac’s 2012 Terms to the contractual agreements entered into with the appellant. These support the conclusion as to the non-engagement of cl 18.

12. [191]

    As noted above, “Term” was defined in cl 1 to mean “the period set out in any sales agreement under an ePlus facility or otherwise in accordance with clause 23 of these terms and conditions of trading”. Accepting that the reference to cl 23 was intended to be to cl 21, the term identified in subcl 21.1 was “24 months from the date of execution of the Account Application”. The “Account Application” was defined in cl 1 to mean “an application made by the customer requesting Gispac not to require immediate payment upon order or delivery of goods or the provision of services by Gispac”. That language made sense in relation to an agreement entered into for an initial period of two years with an automatic renewal for a further period of two years, in accordance with cl 21.2. However, it made no sense in the context of numerous separate sales agreements entered into from time to time as the need for further packaging arose.

13. [192]

    The primary judge found that each of the three sales agreements in issue “commenced on the respective dates that the agreements were executed by Mr Colvile”: at [103]. That finding was not challenged and made commercial sense. However, in order to derive that conclusion from the operation of the 2012 Terms, it was necessary to find that each sales agreement which provided for payment within 30 days of invoicing constituted an “Account Application”. The judge rejected the appellant’s submission that the term “Account Application” referred to a separate document from the sales agreement itself. The reasoning also ignored Mr Bogatez’ evidence as to “the Account Application” made by Michael Hill – in 2003.

14. [193]

    This reasoning strained the ordinary meaning of the defined term and its application to the facts. Each sales agreement was constituted by a “quotation”, which was accepted by Mr Colvile signing on behalf of Michael Hill, the offeree. The quotations included the payment term, “30 Days from invoice date”. The quotation itself cannot reasonably be understood as an application by the appellant; nor can its acceptance by the appellant, which, as the judge found, was the date the agreement commenced. The application cannot have been processed. The quotation described “this sales agreement” as being “valid for a period of 7 days”. Mr Colvile in fact signed each quotation/sales agreement within 7 days of receipt.

15. [194]

    The conclusion that each agreement commenced on the date of execution by Mr Colvile was entirely reasonable; as an objective understanding of the intention of the parties. It did not, however, reflect the terms, or the intended operation of cl 21.1.

16. [195]

    The history of the sales agreements entered into prior to May 2014 (and May 2015 in relation to Emma and Roe) demonstrates that they were not understood by either party to operate for a period of two years, or to be automatically renewable. Each time the agreed supply of bags had, or was about to run out, a new agreement was signed. This practice or custom was inconsistent with cl 21.1.

17. [196]

    Consistently with the last observation, the sales agreements did not specify a “minimum annual quantity” if for no other reason than that they were not limited on an annual, or biannual, basis. Each simply identified a quantity under the heading “QTY”, which was followed by a unit price and total price. There was no rational basis for construing those sales agreements as providing for a minimum annual quantity. This conclusion precludes the application of cl 18.1 of the 2012 Terms.

18. [197]

    Clause 18.2 assumed the existence of an annual quantity and permitted Gispac to identify a shortfall if “during each quarter during the term” the customer purchased “less than 25% of the Annual Quantity”. The term “Annual Quantity” was defined to mean “the minimum amount of Product to be purchased by the Customer over a period of 12 calendar months commencing on the date of commencement of the term”.

19. [198]

    There was no rational basis upon which the sales agreements could be construed, otherwise than by reference to the 2012 Terms, as involving any such obligation. Indeed, such an obligation was inconsistent with the practices of the parties, for the reasons already stated. In addition, the sales agreements themselves anticipated a “lead time” of 8-10 weeks “from pre-production sample approval” which, even if there had already been approval, rendered impractical the “purchase” of such amounts during the first quarter. Indeed, Mr Bogatez volunteered a longer lead time in the course of cross-examination: [59]

20. [199]

    Although the sales agreements generally described the Lead Time as “approx 8-10 weeks”, later in a year, the period was expanded to “approx 12-14 weeks due to Chinese New Year”. [60] Yet, according to Mr Bogatez, these periods were regularly exceeded, making a regular quarterly accounting from the date of commencement of the agreements impractical. There was no evidence that any such exercise until June 2017, three and two years respectively after the agreements the subject of the proceedings.

21. [200]

    Furthermore, the “product usage and forecast” reports prepared by Gispac demonstrated large fluctuations from month-to-month: they were provided as a basis for calculating the amounts required under further sales agreements. Two points are significant: first, no such report in evidence identified quarterly figures; secondly, none suggested that the level of fluctuating demand was inconsistent with the contractual arrangements.

Exclusivity clause

1. [201]

   There is a further question as to whether, even if cll 18 and 21 were not engaged, cl 17, requiring that the appellant obtain packaging exclusively from Gispac, was engaged.

2. [202]

   No submission was made to the effect that there might be incorporation of some of the 2012 Terms relating to ePlus agreements, but not others. The submissions for the appellant on the assumed basis that the 2012 Terms were incorporated, to the effect that it would be necessary to construe the 2012 Terms harmoniously with other aspects of the sales agreements, proceeded on the basis that there was general incorporation, rather than that there was no general incorporation.

3. [203]

   Apart from the lack of a basis in Gispac’s submissions for treating one particular clause as incorporated when others were not, it may be observed that there was good reason for treating cll 17-21 as a package. First, exclusivity, as provided in cl 17, applied to “the Products”. The Products were defined to mean the “products specified on the front page of a Sales Agreement”. The term “Sales Agreement” was defined in cl 1 to mean “a Sales Schedule and these Terms and Conditions of Trading”. The term “Sales Schedule” was defined to mean “the schedule contained on the front page of the sales agreement setting out the product specifications”. Thus, it was only in circumstances where the 2012 Terms were engaged that there was a Sales Agreement.

4. [204]

   Secondly, exclusivity made practical sense only in circumstances where there was a fixed term contract, as provided under cl 21.

5. [205]

   Thirdly, there was no exclusivity provision in relation to any contract other than one providing for ePlus delivery, confirming that ePlus delivery was treated as a benefit to the customer for which a package of conditions operated.

6. [206]

   It follows that there was no exclusivity condition engaged with respect to the appellant’s agreements entered into in May 2014 and May 2015, the subject of the proceedings.

Leave to rely upon new submissions

1. [207]

   In written submissions, filed on 5 June 2024, Gispac questioned the entitlement of the appellant to make submissions in support of ground 1, on the basis that the point had not been raised before the primary judge. Gispac noted that ground 1,

2. [208]

   Gispac also submitted that the case proceeded on the basis that there was a “hybrid” signed and unsigned document case and that the “ticket cases” principles applied. The appellant’s response to these submissions was to seek leave to rely upon its written submissions, to the extent that they departed from the case ran at trial. Nevertheless, the appellant denied that leave was required.

3. [209]

   The immediate answer to Gispac’s first complaint is that, for the reasons noted above, the submission in those terms (the appellant’s first alternative) cannot succeed. It will be necessary to say more shortly about the so-called “hybrid” case submission.

4. [210]

   Further, Gispac submitted at par 7:

5. [211]

   This point was not that the “provenance” argument had not been raised at trial, but that there was no challenge to the finding that the terms identified by Mr Bogatez were the terms which were intended to be engaged by the ticking of the T&C box.

6. [212]

   Gispac submitted that it would suffer prejudice if the matter were allowed to be pursued. Its written submissions suggested that leave was opposed on the basis that the new contentions were without merit; prejudice was not explored. However, in oral argument the question of prejudice was put in the following terms. The first point relied on was that counsel,

7. [213]

   It is true that in Brambles Holdings Ltd v Bathurst City Council [62] Heydon JA stated a principle that “post-contractual conduct is admissible on the question of whether a contract was formed”, but not admissible on the question of what a contract means. However, Heydon JA further stated:

8. [214]

   There was no doubt that each of the relevant contracts existed; there was no doubt as to the identity of the parties. [63]

9. [215]

   In Medical Device Technologies Pty Ltd v Health Administration Corporation, [64] a case relied upon by Gispac, Payne JA stated:

10. [216]

    There is good reason to maintain a tight rein on the admissibility of post-contractual conduct, even as evidence as to the formation of a contract. In most cases such evidence will constitute a direct challenge to the objective determination of the existence of a contract. Subsequent conduct of a party may indicate that the party does or does not believe there is a contract in place, but that will be an expression of a subjective opinion and, indeed, quite likely an opinion as to a matter of law. [65]

11. [217]

    The point of prejudice was further explicated by senior counsel in the following terms: [66]

12. [218]

    In so far as there were further submissions of law which might be put, that course was open on an appeal by way of rehearing. In so far as there was an intention to explore factual issues further in relation to subsequent conduct, there was no sound basis put forward for permitting such a course.

13. [219]

    The second element of prejudice was stated, somewhat obliquely, in the following terms: [67]

14. [220]

    The suggestion was that an alternative factual case might have been put, thereby attracting the principle identified in Coulton v Holcombe, [68] in the following terms: [69]

15. [221]

    In the present case, Gispac’s amended statement of claim expressly pleaded at par 14 that “[e]ach of the Sales Agreements incorporated the Terms and Conditions”. (The phrase “Terms and Conditions” was identified by reference to the 2012 Terms.) Michael Hill’s denial further stated that Gispac “did not give, or otherwise make available, to it any documents separate from, and in addition to, the sales agreements that contain terms and conditions in relation to the supply of its packaging products” and that upon and after 5 May 2014 “the link to the website … was defective or did not exist”.

16. [222]

    As Gispac’s case, supported in evidence by Mr Bogatez, was that the terms were supplied, or at least available at the URL, and not otherwise, the question of the availability of the terms through that medium was always in issue. If Gispac had a case to bring in response to Michael Hill’s defence, the evidence should have been available prior to the opening of the trial on 22 August 2022.

17. [223]

    In a written opening dated 11 August 2022, Gispac noted as the first issue, “Were Gispac’s 2012 standard terms incorporated into each of the sales contracts?” It stated that its answer was “yes”: at par 8. It relied upon the signing of the agreement and the ticking of the box as incorporating the terms governing the supply of paper bags to Michael Hill under each of the sales agreements: pars 16, 24-25. It noted that it did not matter that the document was found on a website: par 26. It then noted the submission that the link was defective or did not exist and responded:

18. [224]

    Michael Hill’s opening submissions, dated 18 August 2022, asserted that it was “for Gispac to make out the contract it asserts, and it cannot do so on the available evidence”: par 3. It took issue directly with the contention that “the website address in the box was a functioning hyperlink, and that it took a person who clicked on it to an electronic document with its purported standard terms and conditions. It has not proved this fact.” Michael Hill noted the contrary assertion by Mr Bogatez but dismissed it as not being evidence demonstrating that the hyperlink was operational at the relevant time: par 10. It repeated what it described as a “fatal problem” in Gispac’s case, namely that “it has offered no evidence of any probative value that shows the hyperlinked worked in 2014 and 2015”: par 16(a). The allegation was repeated at pars 17 and 18.

19. [225]

    In closing submissions dated 24 August 2022, Gispac asserted that the “act of signing the sales agreements and ticking the box is sufficient to incorporate the 2012 standard terms into its contracts”: par 17. Assuming that the link did not work, it submitted that “it does not matter”: par 26. It repeated its contention (correctly rejected by the primary judge) that “given the contention that the link did not work is a factual assertion propounded by Michael Hill, it bears the evidential onus in establishing the fact”: par 33.

20. [226]

    The cross-examination of Mr Bogatez and Mr Colvile were completed on the first day, 22 August 2022. On the second day, there was discussion about expert evidence, in the course of which the primary judge outlined a number of the issues which have been addressed above, including the contextual considerations raised by the sales agreements prior to the ones relied upon by Gispac. With respect to the last day of the first tranche of hearings (the second tranche only addressed expert evidence as to quantification of loss) counsel for Michael Hill identified the hyperlink dispute as involving two problems faced by Gispac. [71] The first was the availability of the link and the second was that even if the link were in operation, Gispac had not proved the “provenance of this document”:

21. [227]

    The judge expressed doubts about the second issue, but it was not abandoned or withdrawn. In response, senior counsel for Gispac took issue with the second point in the following terms: [72]

22. [228]

    There was no ruling that it was a new case, presumably because, given the earlier references set out above, it clearly was not. While it is true that it was not addressed in the judgment, except in the conclusory form of rejection by an express finding to the contrary, the issue was open at trial and was entitled to be relied on by the appellant on the appeal.

23. [229]

    At the trial, and on the appeal, Gispac’s position was that there were only two classes of cases involving incorporation of terms and conditions by reference. The first class, of unsigned contracts, was exemplified by the so-called “ticket” cases; the second was that of signed contracts, which included the sales agreements. There was no “hybrid” category. Yet, Gispac submitted, the focus of the trial was upon the existence or otherwise of a “hybrid” category: that was the “forensic context” in which the submissions now sought to be run on appeal should be evaluated. Furthermore, no “hybrid” category was asserted on appeal.

24. [230]

    It appears that the term “hybrid” was first used by counsel for Michael Hill in closing oral submissions and picked up by the primary judge as meaning that the case involved “the hybrid electronic and hardcopy nature of the contract”. [73]

25. [231]

    The judge immediately expressed “difficulty with that submission”, noting that the quotation was a PDF file sent by email, printed out by Mr Colvile, “so he actually has a hard piece of paper”, which he signs, ticks the box and returns to Gispac. The judge continued: [74]

26. [232]

    Counsel then responded, submitting that the Court should not accept Mr Bogatez: [75]

27. [233]

    In short, the response is that the case differs from other signed contract cases in that, contrary to the primary judge’s assumption in the passage set out above, it had not been established that “there were standard terms and conditions of the supplier, which the supplier has sitting in his or her office”. The term “hybrid” may not have helpfully encapsulated that proposition, but the point raised on appeal was squarely raised at trial and, for the reasons set out above, had merit.

28. [234]

    The second point with respect to ground 1 for which leave was said to be required was in fact raised by the appellant in its defence, was identified in its written opening, and was addressed in oral closing submissions. It was never abandoned. Other issues may have been given greater weight, but it was, in the ring and was not a new case, either at trial (said to have been raised for the first time in closing submissions) or in this Court.

29. [235]

    As to the first point, the issue is largely moot, given its rejection. But were leave required, it should be granted. No legitimate claim of prejudice was established, the question being one of law involving the proper construction of the incorporating clause, read in the context provided by the documentary record of prior dealings.

30. [236]

    As leave was not required, the appellant’s defensive notice of motion should be dismissed. The costs of the motion should, however, be the appellant’s costs in the appeal.

31. [237]

    Although nothing turns on it, there may be doubt as to whether a notice of motion was necessary: there is no formal requirement for leave to rely on submissions, or a ground of appeal which is not the subject of a strike out application. If further evidence had been required to support the factual case for leave, that might have raised a separate issue.

Conclusions

1. [238]

   For the reasons set about above, the primary judge erred in finding that Gispac had established that cll 17, 18 and 21 of the 2012 Terms were incorporated into the three sales agreements executed by the appellant in May 2014 and May 2015 respectively. Because of that conclusion as to the incorporation of, in particular, cll 17 and 18 of the 2012 Terms, it is not necessary to consider grounds 3 to 5, which were limited to the quantum of damages for breach of the exclusivity provision in cl 17.

2. [239]

   The Court should make the following orders:

   1. (1)

      Dismiss the appellant’s notice of motion dated 7 June 2024.

   2. (2)

      Allow the appeal and set aside the judgment in the Equity Division.

   3. (3)

      In place thereof, dismiss the amended statement of claim with costs.

   4. (4)

      Order that the respondent pay the appellant’s costs in this Court.