In Area Ten Pty Limited v SmartChannel Pty Limited [2026] NSWDC 37, Acting Judge I Coleman SC upheld Area Ten's claim for unpaid invoices under a SEO agreement between the parties despite its lack of clarity, deviation from ideal standards, and ambiguity in core provisions.
SmartChannel trades as Outbaxx as an online retailer of portable power products. Area Ten provides SEO services. In March 2021 the parties entered into a 24 month SEO agreement which included a revenue sharing model. Area Ten provided "off site optimisation" and used a "programmatic content engine" with AI to generate over 1,000 pages of content to capture "long tail search traffic". After 18 months, SmartChannel raised concerns about a perceived decline in organise traffic results, compliance with Google's requirements, and the deliverables required under the agreement. In March 2023, SmartChannel purported to terminate the agreement but Area Ten rejected this claiming that the agreement had automatically "rolled over" for another 12 months. Area Ten commenced proceedings for $113k in unpaid fees once SmartChannel cut off access to Google Analytics data. SmartChannel cross claimed for a $203k refund based on breach of contract and alleged misleading and deceptive conduct.
Despite the "modest sums" involved, the proceedings raised complex issues arising with respect the Google and "the wonderful world of the internet". It was noted that, to the "uninitiated" the subject matter of the dispute is "not readily apparent" and this was not assisted by the terms of the agreement which "although perhaps consistent with a commercial contract of its kind, do not accord readily or neatly with what such an agreement would ideally provide".
His Honour held that while it was an implied term of the agreement that Area Ten would comply with the rules, terms, conditions and guidelines of Google for SEO services, this was not breached despite Google issuing various "takedown notices" and SmartChannel incurred no liability or proven loss. But even if this was a breach it would not have entitled SmartChannel to terminate the agreement, particularly because it was more able than Area Ten to avoid its website infringing its competitor's IP rights.
His Honour also held that the operative provisions of agreement were somewhat uncertain, and when interpreted with reference to the parties subsequent conduct, only recorded services that Area Ten "may" have been provided to SmartChannel to optimise the prospects of the objective SEO agreement being realised. This ultimately meant that SmartChannel's proffered interpretation was rejected and the basis of its purported termination was not established. As a result, Area Ten was entitled to be paid its unpaid invoices, plus its unpaid fees for the early termination. SmarChannel's cross claim as also dismissed because no pre or post contract conduct was shown to have caused or contributed to any loss or damage to SmartChannel.