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

The appeal before the Court of Appeal of New South Wales concerned a dispute between Michael Hill Jeweller (Australia) Pty Ltd (appellant) and Gispac Pty Ltd (respondent) arising from a contract for the supply of goods. The primary judge had made orders on 31 January 2024, which the appellant sought to set aside.

The central legal issues for determination included whether the respondent’s standard terms and conditions were effectively incorporated into the contract, particularly given that a hyperlink to these terms was non-functional at the time of execution, and whether the primary judge erred in their construction of certain express terms, including an exclusivity clause and a minimum annual quantity clause, in light of the commercial context and prior dealings between the parties. The court also considered an application for leave to argue a point not raised in the primary proceedings.

The Court of Appeal allowed the appeal in part, setting aside the primary judge's orders. It found that judgment should be entered for the plaintiff (Michael Hill Jeweller) against the defendant (Gispac Pty Ltd) in the amount of $359,858, with interest. The respondent was ordered to pay the appellant’s costs of the appeal, and the court reserved the question of trial costs to be determined on the papers after further submissions from the parties. Leave to rely on one ground of appeal was refused.