SmartChannel Pty Ltd v Area Ten Pty Ltd

2026/00128746

CONTRACT – the appellant is an online seller of portable power sources which operates a website as its point of sale – on 3 March 2021, the parties entered into an agreement (SEO Agreement) whereby the respondent agreed to provide Search Engine Optimisation (SEO) services to the appellant for an initial period of 24 months, and “12-month rolling thereafter” in return for monthly fees – on 6 December 2023, the respondent commenced proceedings against the appellant seeking unpaid fees under the SEO Agreement and damages for breach of contract – the respondent alleged that between 6 December 2022 and 6 December 2023, the appellant failed to pay various invoiced amounts for services provided by the respondent pursuant to the SEO Agreement, totalling $112,881.48 – the respondent alleged that, by failing to pay the invoices, the appellant had repudiated the SEO Agreement and that the respondent accepted the repudiation and terminated the SEO Agreement on 28 November 2023 – the respondent further sought $31,192.26 in damages, being the sum of fees payable to it pursuant to the SEO Agreement for the months of December 2023, January 2024 and February 2024 – in its defence, the appellant admitted that the parties entered into the SEO Agreement, but denied that it was liable to the respondent on the grounds that the respondent: (1) failed to provide services pursuant to the SEO Agreement; (2) breached an implied term of the SEO Agreement that the respondent would not breach both applicable laws and regulations in Australia and rules, terms, conditions and guidelines of Google for SEO services; and (3) engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (ACL) – the appellant contended that it had validly terminated the SEO Agreement by email on 24 March 2023 – the appellant filed a Cross-Claim seeking repayment of $202,533 it paid to the respondent pursuant to the SEO Agreement and damages for the respondent’s breach of both the SEO Agreement and s 18 of the ACL – the primary judge rejected both of the appellant’s defences and its cross-claim and held that the respondent was entitled to the amounts claimed – whether the primary judge erred in construing the SEO Agreement and in failing to find that the appellant validly terminated the SEO Agreement on 24 March 2023.

Area Ten Pty Limited v SmartChannel Pty Limited [2026] NSWDC 37