Legislation Cited: Australian Consumer Law
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Area Ten Pty Limited v SmartChannel Pty Limited [2026] NSWDC 37 | Case summary | Zoe

NSWNSWDC

Area Ten Pty Limited v SmartChannel Pty Limited

[2026] NSWDC 37

District Court of NSW|2026-03-06|Before: Acting Judge I Coleman SC

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2026-03-06

Before

Acting Judge I Coleman SC

Catchwords

CONTRACT – construction of commercial contract for supply of internet
search engine optimisation services – where defendant
failed to cancel
contract within time for cancellation – whether plaintiff repudiated

Source

Original judgment source is linked above.

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Catchwords

CONTRACT – construction of commercial contract for supply of internetsearch engine optimisation services – where defendantfailed to cancelcontract within time for cancellation – whether plaintiff repudiatedcontract – whether defendant validlyterminated contract – whetherdefendant induced to contract as result of misleading or deceptive conduct ofthe plaintiff –whether defendant permitted to re-open its case afterclose of evidence

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Area Ten Pty Limited v SmartChannel Pty Limited [2026] NSWDC 37

Hearing dates: 19, 20 and 21 August 2025; 16 and 24 September 2025; 29 October 2025

Date of orders: 6 March 2026

Decision date: 06 March 2026

Jurisdiction: Civil

Before: Acting Judge I Coleman SC

Decision: See [362]

Catchwords: CONTRACT – construction of commercial contract for supply of internet search engine optimisation services – where defendant failed to cancel contract within time for cancellation – whether plaintiff repudiated contract – whether defendant validly terminated contract – whether defendant induced to contract as result of misleading or deceptive conduct of the plaintiff – whether defendant permitted to re-open its case after close of evidence

By Statement of Claim filed on 6 December 2023 Area Ten Pty Limited (Area Ten) sought Judgment against the Defendant, SmartChannel Pty Limited (SmartChannel), in the sum of $112,881.48, damages, interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and costs.
Area Ten alleged, and SmartChannel admitted that, at all relevant times each party was a corporation able to sue and be sued in and by its corporate name and style. At all relevant times Area Ten carried on what can be broadly described as the business of supplying services to entities having internet websites. At all material times SmartChannel carried on business selling portable power sources and related products, primarily through its internet website.
Area Ten alleged, and SmartChannel did not dispute that, on 27 February 2021, actually on 3 March 2021, the parties entered into an agreement whereby Area Ten would provide Search Engine Optimisation (SEO) services to SmartChannel for an initial period of 24 months, and “12-month rolling thereafter” on the basis provided by the agreement (SEO A****greement).
Area Ten alleged that, pursuant to the SEO Agreement, it provided services to SmartChannel between 6 December 2022 and 6 December 2023 and invoiced SmartChannel for such services. Area Ten alleged that SmartChannel had failed to pay its invoice of 6 December 2022, and failed to pay invoices issued monthly between March 2023 and December 2023. The alleged unpaid invoices for December 2022 and the 10 months of 2023 totalled $112,881.48.
Area Ten alleged that, by failing to pay the invoices SmartChannel had repudiated the SEO Agreement and that Area Ten accepted SmartChannel’s repudiation and terminated the Agreement on 28 November 2023.
Area Ten alleged that as a result of SmartChannel’s breach of the SEO Agreement it suffered loss and damage being SEO service fees for the months of December 2023, January 2024 and February 2024 – the months leading up to the expiration of the SEO Agreement.
By its Statement of Defence filed on 21 March 2024, SmartChannel admitted that the parties entered into the SEO Agreement, but denied that it was liable to Area Ten on two grounds:

Area Ten relied on a series of emails together with a table identifying a large number of products sold by SmartChannel (Exhibit P1), a volume of documents including email exchanges and pages from SmartChannel’s website, Outbax (Exhibit P2) and a table of website listings of SmartChannel’s products (Exhibit P3).
SmartChannel relied on a Google document headed “What creators should know about Google’s August 2022 helpful content update” (Exhibit D1), a Google document headed “December 2022 link spam update releasing for Google search” (Exhibit D2), a one page document issued by Area Ten with respect to compliance with Google requirements (Exhibit D3) and email exchanges between Area Ten and SmartChannel between 18 February 2021 and 15 March 2021 (Exhibit D4). The parties provided a comprehensive Court Book.
Each party relied upon an appropriately qualified expert with respect to SEO services. On behalf of Area Ten a report of Mr Ramakrishna Gudipudi dated 12 June 2025 was relied upon. SmartChannel relied on a report of Mr Chaminda Divaratne of 10 March 2025. The experts conferred and produced a memorandum identifying matters upon which they agreed and disagreed and the basis of their disagreements (Exhibit Z).
Area Ten relied on five Affidavits of Mr Jeremy Tang, the CEO of Area Ten, dated 2 July 2024, 11 June 2025, 15 August 2025, and, in relation to SmartChannel’s motion to re-open its case, affidavits of 24 September 2025 and 7 October 2025.
SmartChannel relied on an Affidavit of Mr Vahid Sedighi of 10 March 2025. Mr Sedighi is the Chief Executive Officer of SmartChannel, and, in support its motion to re-open its case, an affidavit of Mr Sedighi of 9 September 2025.
There is no issue that Mr Tang and Mr Sedighi were authorised to swear Affidavits on behalf of their respective corporations.
The Court was favoured with comprehensive and very helpful opening submissions on behalf of each of the parties, both dated 15 August 2025. After the close of evidence, Counsel for the parties provided the Court with further incisive and helpful submissions on 5 September 2025 and, on 14 September 2025 further submissions were filed on behalf of SmartChannel to which Area Ten filed responding submissions on 23 September 2025.
The proceedings were heard on 19 and 20 August 2025, 25 September 2025 and 29 October 2025.
As will be seen, despite the modest sum claimed by Area Ten, and the less modest sum cross-claimed by SmartChannel, the proceedings raise complex issues arising with respect to Google, and the wonderful world of the internet. The Court regrets that it has not been able to deliver its decision sooner.

The SEO Agreement recorded that “GSC” meant Google Search Console, and that “GA” meant Google Analytics, which were described as the two key sources of information required to make the calculation which appeared in the table which followed.
Under the heading “Information Access” the Agreement recorded that “The revenue share model requires real time access to the necessary reporting systems of the client, during the entire period of the engagement AT must have full and unrestricted access to the necessary Google Search Console (GSC) and Google Analytics (GA) account/s into which the most accurate and live data can be found pertaining to the Organic Search performance on Outbax.com.au. Failure to provide the full access within three business days of request from AT will constitute a breach of the agreement and require that the Client pays a rate equivalent to the highest monthly SEO fee charged over preceding three months prior to removal of access until full access is reinstated”. The “timeframes” was defined as “within three business days of sign off unless mutually agreed in writing”. If the SEO agreement had not by then been validly terminated by SmartChannel on 24 March 2023, that default provision was enlivened when SmartChannel terminated Area Ten’s access to the Google services in April 2023. Area Ten invoiced SmartChannel in accordance with the default provision from that time.
Under the heading “SEO Copywriting” the Agreement provided that “For any content that is required which goes beyond the scope of the ongoing optimisation engagement outlined above, Area Ten can provide copywriting services at a flat rate of $85 ex GST per 300 word article written in accordance with SEO best practice with up to 2 revisions for minimum batch of 20. This service includes SEO copy briefs developed using our proprietary processes which uncover optimum keyword densities as well as related keywords using principle of latent semantic indexing (LSI).”
The “Contract period” of the SEO Agreement was recorded as:

The Court is indebted to Counsel for the parties for their opening outlines of submissions as these remove much of the mystery surrounding the subject matter of the SEO Agreement.
It emerges from the submissions of both Counsel that Area Ten provides SEO services for a fee to a number of entities. It is not in contest that SmartChannel is an online seller of portable power sources, including inverter generators, lithium batteries, portable power stations and solar panels. SmartChannel operates the website Outbax.com.au as its point of sale. The evidence establishes that, after the making of the SEO agreement, and during 2022, SmartChannel developed or acquired significant in-house capacity and expertise with respect to the contents of its website, and the interstices of Google’s oversight of websites. A difficulty confronting SmartChannel’s defence and cross-claim arises from the contractual and evidentiary uncertainty as to, put bluntly, which party was responsible, or mainly responsible for the content which SmartChannel placed on its website. Each party alleges that the other party was.
Area Ten contended that, having not been “cancelled” by that date, the SEO Agreement was rolled over into a third year, ending on 3 March 2024, and maintained that it terminated the SEO Agreement in November 2023, three months prior to when it was due to end, on the basis that SmartChannel had repudiated the agreement. Area Ten’s claim was confirmed as payment of $112,881.48, being unpaid fees for the provision of the SEO services prior to its termination of the SEO Agreement particularised in its Statement of Claim, and $31,192.26 being fees payable for the months of December 2023 and January and February 2024 – the remainder of the roll-over period. Although disputing that it should have to pay them, only after the conclusion of the hearing of evidence, and in the circumstances considered later in these reasons, did SmartChannel dispute the accuracy or basis of the calculation of Area Ten’s invoices.
By way of background, Counsel for Area Ten contended, uncontroversially, that SEO services involved “improving the quality and quantity of the interactions between persons who search for particular goods and services online, usually via the Google search engine, with particular sellers” and that such services “endeavour to improve the “ranking” of the customer pages of a seller in the eyes of the Google search engine and the algorithms that are employed by it that rank such pages”. It was contended, uncontroversially, that, in general, “The higher that a particular website ranks, according to Google search engine, the closer that page will appear to the top of particular search results”. The evidence establishes that, the higher up the page a website appears, the more views (traffic) it is likely to receive, which enhances the chances of a sale of products appearing on the website, and that, other than websites which pay to be “pushed up the order”, by its various procedures, Google determines where a particular website appears on its internet pages.
The earlier, 16 July 2020 Agreement between the parties was contended to have been to assist in generating “organic traffic” from search engine results. Organic traffic was said to refer to “interactions that are the direct result of search results”, which may be distinguished from “non-organic traffic which results from paying Google to place a particular webpage at the top of the relevant search results”. Those matters are not controversial. The Court does not understand that this case involves payments having been made to Google to place a webpage of SmartChannel at the “top of the relevant search results”.
The Court has earlier identified the operative terms of the SEO Agreement. A “feature” of the SEO Agreement was contended by Area Ten to be the provision of “programmatic content engine services in the form of code that created large volumes of website content, i.e. multiple pages for a particular product, using artificial intelligence”, each page generated of which was said to be “focused on the particular way a search for a product might be expressed”.
Uncontroversially, Area Ten invoiced SmartChannel pursuant to the SEO Agreement on 8 April 2021, and monthly thereafter until 6 December 2023. Between July 2021 and December 2022, 18 consecutive invoices were issued under the SEO Agreement and paid in full. Area Ten agreed that since July 2020, pursuant to invoices issued by it, SmartChannel had paid the $202,533.78 which was the subject of part of SmartChannel’s Cross-Claim.
Area Ten acknowledged that on 24 March 2023 SmartChannel sought its agreement to terminate the SEO Agreement but did not agree to such termination, contending that neither then nor subsequently was SmartChannel entitled to terminate it. Area Ten alleged that on or about 11 April 2023 SmartChannel removed its access to Google Search Console and Google Analytics, resulting in Area Ten being unable to gain access to key performance data. Area Ten raised the issue with SmartChannel on 3 May 2023, but access was never restored. Those matters are not controversial. Subsequently Area Ten invoiced on the basis of previous data in accordance with the SEO Agreement, that is the highest monthly SEO fee charged over the preceding three months prior to the removal of access. Although SmartChannel disputed Area Ten’s entitlement to do so, until at almost the twelfth hour, it did not dispute the basis of the calculations.
With respect to SmartChannel’s Defence, Area Ten identified, correctly that, although admitting the SEO Agreement, SmartChannel denied that the relevant services were provided, alleging that it had validly terminated the Agreement on or about 24 March 2023.
In relation to Area Ten’s alleged breach of applicable laws and regulations, rules, terms and conditions, Area Ten disputed that SmartChannel had identified any specific conduct of Area Ten which gave rise to such claims.
By reference to the “compliance representations” and “success representations” referred to by SmartChannel in its Cross-Claim, Area Ten disputed that the evidence supported SmartChannel’s claims.
In its opening outline, SmartChannel disputed that it had repudiated the SEO Agreement by failing to pay invoices issued by Area Ten between December 2022 and December 2023, and submitted that it had validly terminated the SEO Agreement on 24 March 2023. Consistent with its pleadings, SmartChannel asserted that Area Ten had breached the SEO Agreement or made “precontractual misrepresentations” upon which it had relied in entering into the SEO Agreement.
SmartChannel contended that prior to the execution of the SEO Agreement, Area Ten represented that a core part of the SEO services to be provided under the Agreement would include:
the use of Area Ten’s “programmatic content engine” (PCE); and
the provision by Area Ten of manually written materials to be published on the Outbax website.
In “lay terms” SmartChannel contended that the PCE was designed to produce large volumes of template placed written content that was published on the Outbax website, which was intended to boost the presence of the Outbax website on Google searches by responding to “long tail search terms” (i.e. longer, more specific search terms). SmartChannel contended that over 1,000 pages of content prepared by Area Ten’s PCE was published on its Outbax website. Those contentions are not controversial.
SmartChannel contended that, from December 2022 it “began to raise concerns about the performance of the SEO services, particularly the PCE generated articles. On 18 January 2023 SmartChannel received a “Notice of DMCA removal” from Google, stating that one of the PCE articles prepared by Area Ten “allegedly infringes upon the copyright of others”. SmartChannel contended that, throughout January to March 2023, the parties engaged in discussions and correspondence in relation to SmartChannel’s concerns with the SEO services which did “not salvage the relationship” and that, by email sent to Area Ten on 24 March 2023 SmartChannel purported to terminate the SEO Agreement. That email relevantly stated (Court Book p.489):

The parties’ emails provide a comprehensive and reliable background to the proceedings. Throughout these reasons, only limited references are made to the affidavit and oral evidence of Mr Tang, the director of Area Ten, and Mr Sedighi, the officer of SmartChannel in charge of the operation of the SEO agreement. There are several reasons why that is so. Mr Tang and Mr Sedighi were not at the “coalface” in terms of the day to day operation of the SEO agreement, for which others employed by each corporation were responsible. Although neither Mr Tang nor Mr Sedighi’s evidence was shown to lack credibility, by the time they came to provide their affidavits, considerable time had passed, the parties were embroiled in litigation, and each of them had substantial, possibly subconscious, motivation to remember things in particular ways (The Nominal Defendant v Cordin [2017] NSWCA 6, per Davies JA, at [165]). More importantly, as is increasingly the modern way, during the operation of the SEO agreement, the parties communicated predominantly by email, the consequence of which is that any matter which either party considered was important, found expression in the “email trail”. Other than in unusual circumstances, and this is not such a case, later, or significantly later, successfully asserting an oral communication of substance which neither party considered worth mentioning in contemporaneous emails, is problematic. Such allegations are entitled to little weight in a case like this. In any event, save with respect to SmartChannel’s reliance on alleged pre-contractual representations, neither party’s case ultimately turns on what Mr Tang or Mr Sedighi now allege about the critical disputed issues of fact which is other than in reliance upon contemporaneous source documents.
After the SEO Agreement was made, SmartChannel’s six month email silence suggests that it was satisfied with Area Ten’s services. The first email of relevance for present purposes, dated 14 September 2021 was from Mr Sedighi to Tim Maggs, Area Ten’s Online Performance Director. Mr Sedighi said in his email:

Mr Sedighi responded on the same day confirming that “Monday at 1.00pm is good. Let’s work out how we can turn this around.”
On 29 September 2021 Mr Sedighi emailed Mr Maggs thanking him for the meeting on Monday and asking “Can we urgently create a plan on what we need to do in order to turn the low performance around? When can we have this plan”. Mr Maggs responded later that day apologising for “the delay”, stating that he “found some data discrepancies that we’re looking at” and that he would have a plan by Friday.
On November 24 2021 Mr Maggs emailed Mitzki Ermita who was SmartChannel’s Web Merchandiser stating that Area Ten’s team had “just finished the final batch of content” a link to which was provided and asked “Could you please let us know when these pages have been uploaded”.
On 29 November 2021 Mitzki Ermita emailed Mr Maggs apologising for the “late response” for reasons including having been “busy with the Black Friday promo”. The email advised that “Our part-time copywriter submitted a list of content so I’ll try to see if I can match it with these and upload it. Also we have a newly hired SEO copywriter so these tasks will now be handled by her but uploading to the website will still be done on my end”. The email concluded by thanking Mr Maggs “so much”. By at least November 2021, SmartChannel employed personnel whose duties included copywriting and uploading content on SmartChannel’s website. Those personnel had the last eyes on content before it appeared on the website.
On 7 December 2021 Mr Maggs emailed Mitzki Ermita recommending a website “to check for plagiarism” and providing a “quick video on what’s involved in creating the content”. Mitzki Ermita responded later that day “Thanks Tim, you’re the best”.
On 4 March 2022 Mr Maggs emailed SmartChannel suggesting that it had been “under reporting the organic revenue Outbax currently receives on a monthly basis which affected our agreed revenue share”. A table recording a “difference” of $37,630.60 followed. Mr Maggs invited SmartChannel to “do your own analysis” of the figures.
On 9 March 2022 Mr Sedighi emailed Area Ten and said “No problem for invoicing at a commercially agreed amount moving forward. However, we couldn’t get to the same numbers from our calculations” and other matters of no immediate significance.
On 16 March 2022 Mr Maggs forwarded a “spreadsheet with how we are calculating” the sums said to be due for “underreporting” of organic revenue. On 21 March 2022 Mr Sedighi responded confirming that he would check the figures. On 25 March 2022 Mr Maggs enquired whether SmartChannel had reviewed the figures. On 27 March 2022 Mr Sedighi emailed Area Ten advising that they were “just doing some final analysis to confirm the issue”. Later that day Mr Tang emailed Mr Sedighi with respect to the issue.
On 6 April 2022 Mr Tang emailed Mr Sedighi who replied later the same day confirming that “After reviewing the calculation method shared by Tim, everything looks good”. That email has dual significance – Area Ten’s invoicing was checked by SmartChannel and found to be in order, and no query was raised with respect to any absence of manually written content.
It is relevant to both the parties’ understanding of Area Ten’s obligations under the SEO agreement, and to SmartChannel’s entitlement to terminate it on 24 March 2023 that, between March 2021 and November 2022, any issues raised by SmartChannel with respect to Area Ten’s performance had been resolved to its satisfaction.
On 22 November 2022, Brian Babor of SmartChannel emailed Tim Maggs. The email was headed “Higher Traffic but Lower Conversion Rates” and stated “I would just like to follow up with our request regarding your analysis of why traffic is significantly higher but the conversion rates are either lower or stagnant. Have you come up with a conclusion on your end?”. The evidence does not establish that, between April 2022 and November 2022, Area Ten was providing materially different services to those which it had been providing prior to April 2022.
On 24 December 2022 Area Ten emailed SmartChannel advising that it had not received the payment of $12,463.95 due on 20 December 2022.
On 19 January 2023 Mr Sedighi emailed Mr Maggs and said:

The final two sentences of Mr Sedighi’s email raise a matter which the evidence does not establish that SmartChannel had previously raised. Mr Sedighi’s email of 7 March 2023 revealed that he did not know whether Area Ten had produced any manually written content. The evidence does not establish that, prior to 24 March 2023, SmartChannel had requested “high quality articles”, or asked why it was not receiving such articles.
On 26 March 2023 Area Ten emailed Mr Sedighi asking for an “update on the two overdue invoices”, the oldest of which stood at “96 days overdue”.
On 30 March 2023 Mr Tang emailed Mr Sedighi providing a link to a spreadsheet, requesting Mr Sedighi to consider whether the document was “an accurate record of the interactions that have happened since late last year”. Mr Tang said that “Assuming it aligns with your own records, you will see that we have proposed ways to address the issue that we encountered in December, in fact we were the ones who flagged the issue it [sic] in the first place. We have provided technical and content recommendations of which technical was done but content (the most critical component) has not. Given this it would not be fair to say that all options have been exhausted. Please remember that we do not have a typical engagement – any SEO issues directly impacts how we are paid as well so it’s not a situation where one party wins when the other loses. The macro of this is that the nature of the arrangement is that we effectively entered into a partnership and we have honoured that partnership over the years by investing effort and resources to improve the SEO performance of the site. We have aimed to go above and beyond what was in the agreement such as: (three specific matters were identified).” The email continued “It’s unfortunate that you feel you’ve been shortchanged by the engagement based on your comment on the 10 articles a month. I was very clear in the signed agreement that it was “up to 10 articles a month” which pales into comparison with what we have actually invested in the partnership.” The email concluded “My key point is that we have worked consistently in the spirit of the partnership. Your proposal of immediate termination is inconsistent with the terms of the signed agreement and the spirit of it. I’d love to hear your thoughts on alternative options to move forward that are fair and reasonable.” It is significant that Mr Tang raised the 10 articles issue when he did – well prior to the involvement of lawyers. The evidence does not establish that Mr Tang’s proposal was not genuine, or was unreasonable. It called for a measured response.
On 17 April 2023 Mr Tang emailed Mr Sedighi and said:

On 1 May 2023 Mr Tang emailed Mr Sedighi in relation to outstanding invoices for December 2022 and March and April 2023 asking “when exactly these will be paid?” The email concluded “My team is working to the plan I proposed you haven’t flagged any issues. Tim will advise ETAs for initial batches of content”.
On 3 May 2023 Mr Tang emailed Mr Sedighi and said “We are aware that access has been taken off for Google Search Console (GSC) since at least 1st May 2023. Given this we will need to charge the highest rate from the last 3 months as per the agreement for April work conducted unless the access is reinstated by 4th May, 2023 as per clause below from the signed agreement”. Mr Tang then said “Also reporting wise we will be unable to report and provide insights on data from GSC but will continue to report based on what information we have access to as per the signed agreement. As you know GSC provides information that’s needed to be able to do SEO analysis and failure to provide us access damages our ability to deliver SEO improvements which impacts the revenue the business earns and therefore our ability to earn from this partnership”.
On 17 May 2023 Mr Maggs emailed Mr Sedighi and said “As part of our agreement here is the first batch of content which is ready to upload”. Six links to the content being provided. The email concluded “Once this content has been uploaded to the site we will start on the next batch.
On 7 September 2023 Mr Maggs emailed Mr Sedighi in relation to the “SEO performance summary for outbax.com.au for the month of August 2023” a link providing an “in depth look” at the report being indicated. Under the heading “Aggregate SEO rankings”, Mr Maggs said “There’s been a significant improvement in your aggregate SEO rankings. Since we commenced our SEO program, the total positions across all target keywords have shot up by 235”. Under the heading “High performing keywords” Mr Maggs said “A stand out metric from this report is that 16 out of 28 target keywords are comfortably sitting on the first page of Google” and that “Special mentions include “Portable hot tub” and “200ah Lithium Battery”, both of which have ascended to the second position on Google”. Under the heading “Consistent performers” Mr Maggs said that “For 2 consecutive months, “LayZ spa” and “Cheap Lithium battery” have maintained a stable rank at position 3. This suggests that the strategies deployed for these keywords have been effective. Other consistently well ranking keywords include “Silent Generator” and “Inverter Generator”, both at position 4.” Under the heading “Noteworthy movements” Mr Maggs said ““Portable spa” and “100ah Lithium Battery” have also made their way up to third position. For the past 2 months, “Camping Generator” has secured a spot at position 7, while “Lithium Battery”, “Camping Solar Panels” and “Caravan Generator” have climbed to position 8”. Mr Maggs identified other “keywords making progress” and concluded by stating that “We’ve also done some analysis and found over 360 pages that have declined in estimated traffic over the last month which you can find attached, we recommend reviewing these thoroughly and updating the content on these pages.”
Mr Sedighi broke SmartChannel’s silence and emailed Mr Maggs on 12 September 2023, stating:

The next email from Mr Maggs to Mr Sedighi on 13 October 2023, to which Mr Sedighi did not respond, said “Please see the latest SEO report for September 2023 here (a link enabling that to be done being indicated).” Under the heading “Aggregate SEO rankings” Mr Maggs said “We’re making headway, with an aggregate improvement of 148 positions across all target keywords since starting the SEO campaign”. Under the heading “High performing keywords” Mr Maggs said “Smashing it – 15 of our 28 target keywords are on Google’s first page”. Under the heading “Consistent performers” Mr Maggs said “The usual suspects – “Portable hot tub” and “Cheap Lithium battery” – have been steady, holding their second and third spots, respectively, for another month.” Under the heading “Noteworthy movements” Mr Maggs said “Big ups to the “Life PO4 Battery” and “Camping Generator”; both have reached the third position this month”. Under the heading “Other consistently well ranking keywords” Mr Maggs said ““Silent Generator” and “Inverter Generator” are cruising at the fourth spot, and “Caravan Lithium Batteries” remains at fifth for the third consecutive month”. Under the heading “Improvements” Mr Maggs said “We’ve seen “Inflatable spa” move from ninth to fifth, and “Lithium Battery” climb from eighth to seventh.” Under the heading “Stable performers” Mr Maggs said “and let’s not forget “Caravan Generator”, staying put at 8th for two months now”. Under the heading “Google updates” Mr Maggs said “Google rolled out a Spam Update on 4th of October, focusing on multiple languages. Then, on the 5th of October, they released a core Update that may take up to two weeks to roll out. We are keeping a close eye on any potential impacts these may have on our rankings and will let you know accordingly”. Under the heading “Recommendations” Mr Maggs said “For keywords slipping down, consider revisiting and updating the content. Fresh content often gets a boost” and “Keep an eye on page speed and usability, especially given Google’s increasing focus on user experience”.
On 16 October 2023 Mr Feng emailed Area Ten on behalf of SmartChannel and stated :

Area Ten relied on the expert opinion evidence of Mr Gudipudi. SmartChannel relied on the expert opinion evidence of Mr Divaratne, each of whom produced comprehensive reports.
The parties’ experts conferred and produced a 20 page report identifying the points on which they agreed and disagreed, and the basis for the latter. To read the report is to appreciate the complexity of the factual issues in this case, and also to appreciate the difficulty which the Court has in determining whether the opinion of one expert should be preferred to that of the other. Sensibly, the expertise of the experts has not been challenged. Unlike many other professions, trades or vocations in which expertise is determined by reference to formal or established qualifications or experience, that is not so with the internet. With one important exception, each expert had the experience necessary to express the opinions appearing in his report, and in the memorandum.
Expert opinion evidence assists the Court to make findings with respect to disputed issues of fact, and involves an evaluative determination, inherent in which is the prospect of minds reasonably differing. The pleadings have relevance in this case. Unless the expert opinions of SmartChannel’s expert are preferred to those of Area Ten’s expert, its defence and cross-claim cannot succeed.
Prior to the preparation of the experts’ report, SmartChannel had not disputed that, unless the SEO Agreement was validly terminated by it on 24 March 2023, Area Ten did not provide the services for which it subsequently invoiced SmartChannel, or that the sums claimed in those invoices with respect to such work were inconsistent with the SEO Agreement or, after April 2023, with respect to the provisions of the agreement governing fees for work which had not been done because SmartChannel had prevented Area Ten’s access to the Google facilities referred to in the agreement. As SmartChannel’s Defence and Cross-claim make clear, the alleged failure to provide the services required of Area Ten under the SEO Agreement and/or breaches of applicable laws, regulations, rules, terms, conditions and guidelines of Google for SEO services are the basis of SmartChannel’s case. In those circumstances, SmartChannel bears the onus of establishing on the balance of probabilities that the SEO services provided by Area Ten were deficient in one or more of the ways alleged by it, and that, on the proper construction of the SEO agreement, such deficiencies constituted breaches of the SEO agreement which entitled SmartChannel to terminate it.
Under the heading “SmartChannel Feedback”, Mr Divaratne’s opined that Outbax “experienced a significant and sustained decline in organic search visibility on key money pages, as well as a reduction in traffic and resulting revenue”. He said that both dropped “significantly from 22 July 2023 towards 31st December for primary money pages”, “overall SEO traffic” having assertedly dropped by 45% for that period compared with the previous period during which period “SEO revenue dropped” 73%. His opinion was thus that:

Mr Divaratne observed that this “automated process is frequently exploited to create low quality, manipulative content that violates search engine guidelines”. Mr Divaratne added that such pages are often used to create “doorway pages” which are “not intended to provide genuine value to the user” but rather to “rank for thousands of niche search queries” and to “funnel the captured traffic to a different, often commercial, page on the website”. When deployed in this manner, p SEO becomes a “direct contravention of search engine spam policies, predictably leading to severe penalties such as sitewide ranking demotions, legal complaints for infringement and the catastrophic loss of traffic and revenue observed in this case”. Other than unproven legal complaints alleging copyright infringements, all but one of which (18 January 2023) preceded SmartChannel’s email of 24 March 2023, the evidence does not establish those matters.
Mr Gudipudi agreed with Mr Divaratne’s general propositions, but adhered to his opinion that Area Ten programmatic pages were “not injected into core category or product pages but published as standalone content”. To his credit, as he did in oral evidence, Mr Gudipudi acknowledged that “the copy could have been more insightful” and, as he conceded in cross-examination, some of it was “low quality” but asserted, correctly in the Court’s view, that there has been no evidence of a penalty of the kind to which Mr Divaratne referred and that “traffic continued to rise”.
Under the heading “PCE content (p SEO) Area Ten (AT) approach” Mr Divaratne said that Area Ten generated 1,015 pages of low quality material on average from March 2022 to March 2023 across “sitewide passages”, five of which he identified. Mr Divaratne said that Area Ten’s “core strategy was to attempt to capture traffic from every conceivable search query related to Outbax” which encompassed “not only generic terms but also highly specific technical questions and – most problematically – searches for Outbax’s direct competitors” a number of which were named. Mr Divaratne’s opinion was that “Rather than developing high quality, expert content to earn these rankings, (Area Ten) opted to automate the process through a programmatic SEO (p SEO) engine. The fundamental flaw in their approach was the deliberate creation of content intended to infringe upon competitor brands and mislead users, instead of focusing on building Outbax’s brand authority”. The infringements have not been established. The evidence does not establish the intention alleged by Mr Divaratne.
Mr Divaratne suggested how Area Ten had deliberately set out to create pages for the sole purpose of functioning as “doorways”, being “shallow entry points designed purely to rank for specific keywords and immediately channel any users (and search engine authority) to one of the main commercial pages”. Mr Divaratne colourfully concluded his opinion with respect to this topic by saying that “In summary, the agency constructed a house of cards using deceptive and infringing materials. They were formally warned that their approach was fundamentally flawed, yet they took no corrective action”. Why, given the profit share nature of the SEO agreement, Area Ten would have done that was not explained. The evidence does not establish the factual allegations which underpin Mr Divaratne’s opinion.
Mr Gudipudi recorded that he was “not sure” what was discussed between Area Ten and Outbax before creating the 1,015 allegedly programmatic pages but that “One thing for sure is that these pages fall under the orphan pages category – not part of the main navigation – with potential to bring down the site quality. The programmatic engine was switched off (July 2023) and yet organic traffic continued to climb, contradicting the assertion that the content caused suppression”. There is logic in those assertions.
Under the heading “PCE content (p SEO) – core SEO issues to Outbax – creating mass doorway pages” Mr Divaratne’s opinion was that “Outbax experienced a significant and sustained decline in organic search visibility across its main money pages, such as those relating to lithium products, portable power stations, generators, and similar categories. This decline extended to both traffic and resulting revenue.” Mr Divaratne suggested that his “analysis indicates, with a high degree of certainty, that this downturn was not caused by market fluctuations, competitor actions, or algorithmic changes unrelated to quality. Rather, the evidence points directly to the mass deployment of low quality, thin and templated content generated by the agency’s programmatic SEO (p SEO) engine.”
Mr Divaratne repeated much of what he had said with respect to the previous issue. In summary, Mr Divaratne’s opinion was that “Instead of boosting the money pages, this tactic actively poisoned their authority.” And that “By linking from 1,010 toxic, low quality doorway pages, the agency placed a massive negative signal on the most important commercial pages of the website leading directly to them demotion in search results”.
Although Mr Gudipudi neither agreed or disagreed with Mr Divaratne’s general comments, he suggested that the data “show no correlation between the publication of these pages and decline in visibility or traffic”. Consistent with his earlier observations Mr Gudipudi reiterated that the p SEO pages were “low quality and could affect the site authority” but that “during the contract period, there was no sign of any penalties”. The evidence does not establish that Mr Gudipudi is wrong about that.
Under the heading “p SEO content: either orphan or isolated”, Mr Divaratne disputed Mr Gudipudi’s assertion that the pages were isolated and that “isolation negates any harm”, suggesting that “both premises are demonstrably false”. Mr Gudipudi reiterated his earlier comments with respect to the purpose of a “doorway page” and reaffirmed his opinion that the content generated by Area Ten was “by design, connected to Outbax’s core commercial pages in the most manipulative way possible”. Under the heading “Unnatural language and keyword stuffing”, Mr Divaratne identified matters which he submitted were supportive of his conclusion, including “grammatically nonsensible” language, excessive use of exact match and partial match keywords and unnatural link density and placement which he submitted constituted “evidence of manipulative intent”.
Mr Gudipudi said that he was unable to “answer from a business standpoint” as he was “not familiar if Area Ten discussed the potential outcomes of this implementation (orphan pages) with Outbax”. He concluded “Technically, I agree that orphan pages could cause a drop in authority. However, Google’s quality updates did not produce a penalty notice, and organic traffic trends remained positive”. As with other matters considered by the experts, in assessing their opinions, it should be remembered that Mr Divaratne’s opinion was based on a consideration of data which concluded in July 2023.
Under the heading “p SEO content: algorithmic/sitewide penalty”, Mr Divaratne identified what in his opinion, as a result of Area Ten’s provision of 1,010 low quality doorway pages” SmartChannel’s loss of revenue and “legal and reputational risk”. The evidence does not establish that either of those risks materialised. Although, by its Cross-Claim, SmartChannel has sought damages, it has not particularised how any alleged loss or damage was suffered, other than in global terms, other than the fees paid by it to Area Ten in the sum of $202,533 which it seeks to recover. Mr Divaratne relied on three graphs which he said supported his opinion that “money keywords” were dropped by Google. This he suggested was “irrefutable evidence of the damage inflicted” and demonstrated “a clear two step process: the initial, deceptive ranking of a spamy doorway page, followed by the inevitable algorithmic penalty that decimated the rankings of the site’s legitimate, high value commercial pages”. Mr Divaratne considered that the DMCA takedown notice and trademark infringement letters corroborated his opinion with respect to the doorway pages.
Mr Gudipudi was unable to comment with respect to the DMCA having not been “briefed on the conversation between Area Ten and Outbax”. As the DMCA did not result in loss or damage for SmartChannel, that does not detract from the weight which can be given to Mr Gudipudi’s evidence. Mr Gudipudi reiterated however that there was “no evidence of traffic or ranking declines based on the data”. That assertion has not been shown to be erroneous.
The next topic considered by the experts was “p SEO content: SEO traffic”. Mr Divaratne said that “p SEO content generates SEO traffic but the fact that the low quality pages maintained their own traffic for a period before the main “money pages” collapsed is not a contradiction”, but rather “demonstrates the two phased nature of the damage” the first being “the illusion of success (Mar 2022 – Sep 2023), the second the Algorithmic Time Bomb (Sep 2023 – Dec 2023)”.
Mr Divaratne said that throughout 2022 and most of 2023 the 1,010 programmatic pages “generated their own organic traffic” but that the traffic thus generated was what he called “empty calories”. Mr Divaratne suggested that the traffic was “comprised of users with very low purchase intention, leading to high bounce rates, low engagement and virtually minimal contribution to revenue. The previous agency may have presented this as a success, but it was a smokescreen that hid the accumulating damage being done to Outbax’s site overall quality score in Google’s eyes”. Although not so intended, Mr Divaratne’s reference to “low purchase intention” traffic is important. If website visitors have little intention of purchasing, that is a variable which is relevant to whether the quality of the website is causally connected with the rate of conversion to sales. Mr Divaratne’s opinion with respect to that issue made no allowance for that variable. Mr Divaratne suggested that this “explains the timeline of the collapse” as algorithmic penalties were not “instantaneous”. Mr Divaratne suggested that the “trigger” for the alleged “collapse” occurred on 14 December 2023 when Google released a “major update specifically designed to demote sites with a high ration of unhelpful to helpful content”. He suggested that “this was the moment the fuse was lit” and that Outbax’s site with its 1,010 low quality pages “was almost certainly identified and algorithmically “classified” as an unhelpful site by Google’s systems”. How events in December 2023 were connected with anything done, or not done by Area Ten has not been convincingly explained. SmartChannel at all times was able to remove any content supplied by Area Ten from its website, and had the infrastructure and personnel to do so. SmartChannel’s evidence with respect to these matters is significantly scant. Although somewhat vague, Mr Sedighi’s oral evidence suggests that, prior to that time, persons or entities other than Area Ten controlled the content of SmartChannel’s website.
Mr Divaratne said that the “impact on Outbax’s primary keywords was not felt immediately” due to several factors which he identified. Mr Divaratne reiterated his opinion that, in the period July 2023 to 31 December 2023, the data indicated that SEO traffic declined by 45% while revenue fell by 73% across major categories and money pages. Critically, he suggested that was “a result” of Area Ten’s p SEO content. As will be seen, the Court does not find that nexus to have been established. With respect to him, Mr Divaratne’s opinion assumes that website traffic necessarily results in sales. The evidence does not establish that. Competitors having more attractive products, offers, terms and conditions, “window shopping”, seasonal/market fluctuations and other factors which impact on the extent to which website traffic is the integer of website sales. Mr Divaratne’s opinion does not accommodate those factors. Although not in precisely the terms recorded above, Mr Gudipudi’s evidence encompassed those concepts.
Mr Gudipudi disagreed with the critical parts of Mr Divaratne’s opinion, and reiterated his earlier opinion that “contrary to the claim that p SEO traffic disappeared, overall organic sessions climbed throughout the engagement. GA4 data show growth from 34K to 51K sessions, with post-July 2023 months showing a clear recovery and further growth temporary dips correspond to normal seasonality and algorithm volatility, not to the presence or removal of the problematic pages”. Growth of traffic without an increase, proportionate or otherwise, in sales is an obstacle to acceptance of Mr Divaratne’s causality opinion.
Under the heading “SEO Revenue” Mr Divaratne asserted that some of Area Ten’s alleged deficiencies were “wilful” and having “recklessly” involved ignoring formal DCA takedown notices issued by Google. Properly, those propositions were not put to Mr Tang in cross-examination. Mr Divaratne reiterated his earlier opinion that Area Ten’s conduct created a situation in September 2023 which led to a “sitewide algorithmic demotion that destroyed Outbax’s rankings for core commercial keywords”. How SmartChannel permitted that to occur, if it did, has not been explained. Mr Divaratne asserted that the “measurable result of their actions was a quantifiable revenue loss exceeding over 700,000K dollars. The data shows an undeniable causal link from AT’s reckless implementation of prohibited tactics to the severe financial damages to Outbax’s business has suffered”. Mr Divaratne’s opinion was that revenue from the primary lithium batteries landing page plummeted by 81%, and revenue from inverter generators collapsed by 82%. Other than by assuming that such declines must have been due to content created by Area Ten, and erroneously assuming that SmartChannel had no control over the content appearing on its website, the Court cannot accept those assertions.
Mr Gudipudi observed that the scope of his engagement had been limited to consideration of a drop in rankings. In cross-examination, Mr Gudipudi confirmed that “traffic and keyword rankings are two metrics to assess Google Search performance” and that “sessions” and “traffic” were “pretty much the same”. Mr Gudipudi agreed that “Someone providing SEO services is trying to improve the experience of users arriving on a website”, adding “Arriving at the website by equalling the keyboard rankings, yes, that’s the job of an SEO”.
Mr Gudipudi explained that Google updates applications were “the announcements from Google and official statements saying that “on this date to this date we have rolled out some changes for better business”, so that is what the application is about”. Mr Gudipudi acknowledged that “people in the SEO community read these updates” and try to respond to them in a manner that will improve the results of their client on Google search. Mr Gudipudi said that most of the updates can take between 2 and 13 days to be implemented. Mr Gudipudi was asked whether “If someone complies with a Google update, it might lead to an improvement in Google search results?” to which he replied “If you have complied with the Google updates or they’re a helpful guide for good practices, you should ideally see an uplift in the traffic or keyboard rankings. If you didn’t comply with the Google guidelines, you could possibly lose rankings and so the traffic”.
By reference to the chart to which he was referred (found at Court Book p.617) it was suggested to Mr Gudipudi that “between 8 November (2022) and December 2023 the position in keyword rankings of the Outbax website declined significantly”. Mr Gudipudi rejected that suggestion suggesting “No, small correction. This is not between the dates. It is on the respective two different dates that compared the date. So fundamentally I have some problem with this kind of data presentation. Google changes every day. They run hundreds of experiments every day and they only publish, like, 10 to 12 major updates in a given year. Now when they’re running so many experiments, it would not be appropriate to just click on two specific dates and see if the keyword rankings went up and down”. Mr Gudipudi added that “This is a third party tool, and the third party tool they have their own methodology on how they track rankings … Here they particularly pick two different dates, which is 26 December and 8 November, so I have a problem with how they have identified two specific dates and then just publish this data here.” Mr Gudipudi agreed that the chart showed a difference between where the keyword ranked on 8 November 2022 and where it ranked in December 2023.
Mr Gudipudi agreed that it did appear that, across a range of keywords (at Court Book p.617 and p.618) all of the keywords, with some exceptions, had large drops in rankings. Mr Gudipudi agreed with that proposition but explained that the data was “questionable” or “not accurate”, for two reasons, one relating to Googles methodology, the other difference in rankings referable to the browsing history and search history of the person visiting the website. Mr Gudipudi reiterated his opinion that throughout 2023 there was “an increase in website traffic” and said that there was “no evidence of any penalty”. He added that “At times when Google has announced official statements around the dates when there was an update, there was no penalty, and particularly the helpful content update which is exactly what the expert was mentioning. During those times there was absolutely no sign of any penalty and the traffic … there is no evidence the traffic dropped even after the update was rolled out completely so I do not agree … there’s absolutely no impact on the website because of any Google algorithm rollouts, hence no penalties”.
Mr Gudipudi was asked to describe to the Court his understanding of PCE. Mr Gudipudi said “Basically, a programmatic content is content generated through some computer software or something, to be added onto the pages without human intervention. Like, it is automatically created based on the roles that were defined in the background”. The Court asked whether the process was “like AI in some way” to which Mr Gudipudi replied “Kind of, but not a point where AI is, but this is kind of a mini version of AI”.
Mr Gudipudi was asked about the 1,010 “PC articles” produced by Area Ten. Mr Gudipudi readily accepted, as he had in the experts’ joint report, that the PCE content that was created was “low quality” and agreed that it could affect the “authority of a website” – the extent to which a website is “trusted”. Mr Gudipudi agreed that “good quality content improves authority” but, for reasons which he explained in some detail, did not “necessarily” agree that “manually prepared articles written by humans are of generally higher quality”. SmartChannel needs to establish that Area Ten breached the SEO Agreement by failing to provide such articles, and that, had it done so, SmartChannel’s website sales would have increased, or, at worst, not declined. The former involves a legal determination. Mr Gudipudi’s evidence creates an obstacle to SmartChannel establishing the latter.
It was put to Mr Gudipudi that he “formed the view that because it was low quality, (the PCE content prepared by Area Ten) would reduce the authority of the website?” Mr Gudipudi replied that “In short, nothing of that was reflected in the graphs, numbers, graphic, whatsoever during the time Area Ten was engaged to do the work. So during the period of engagement, I see no sign of authority going down, traffic gone down, rankings gone down”. It was put to Mr Gudipudi that “Low quality content could not have improved the authority?” Mr Gudipudi said that “It didn’t go down versus it didn’t go up” but that “If you look at the traffic and at the times Google rolled out an update, particularly targeting these low quality things, Area Ten’s work didn’t get affected by any of the Google updates … traffic went up, rankings went up, absolutely”.
Mr Gudipudi reiterated that in his “mind there’s no question about traffic drop, ranking drop, no penalty” during the period Area Ten was engaging with SmartChannel, that “everything looks to me good, traffic went up from the start period to the end period”, although “there were dips in between which is expected, very normal”. Consistent with his earlier answers, Mr Gudipudi acknowledged that Area Ten’s content “could have been better”. Mr Gudipudi maintained that he considered “keyword rankings” in his report to the extent that he had access to historical data.
Mr Gudipudi was referred to the August 2022 Google helpful content update and agreed that “Someone who is providing SEO services, when they see a Google update that provides guidance as to how content should be formulated” would be expected to make adjustments in response. Mr Gudipudi agreed with that proposition but said that he would only “make adjustments to my current process if I know it is failing, it is giving up on me, but in this case, the site has shown no signs of traffic drops when these updates were rolled out, so if I was in the Area Ten’s shoes, if nothing – my site is not affected, then I would not touch it.” Mr Gudipudi did not agree that “necessarily” not making a change as a result of a Google update was “not potentially improving the performance of the site”. He explained that was because there are “so many moving parts … one of the smallest things that we are working on day to day … when nothing’s affected the website, because of the update I have a hundred other things that I will be working on in the background”. On the assumption that “all other variables are equal” it was suggested to Mr Gudipudi that changing the written content to respond to a Google update would be expected to see an improvement in the website. Mr Gudipudi agreed with that general proposition but, for the reasons he had given previously and because there was “no drop in traffic” would not “do any changes”. Mr Gudipudi confirmed that he is the Head of SEO for a large commercial entity.
In re-examination, Mr Gudipudi confirmed that, with respect to the expectations of an SEO “everyone wants traffic … because traffic byproduct is leads, sales, revenue, whatever … traffic is fundamentally the only metric any business owner will focus on”. Mr Gudipudi reiterated that “From the time when the engagement started to the end when it finished, traffic just went up”.
Sensibly, there has been no challenge to Mr Gudipudi’s expertise. Mr Gudipudi impressed as an honest witness. He made significant concessions. His explanation for his opinions was logical and balanced. It is difficult to suggest a rational basis upon which Mr Gudipudi’s expert opinions could be rejected.
Mr Divaratne was cross-examined. Mr Divaratne’s expertise has sensibly not been challenged. Mr Divaratne confirmed, in a less than entirely responsive answer, that the “figures that you use for traffic end well before November/December 2023”. It was put to Mr Divaratne that his “analysis that the PCE content led to no increase in traffic is based on the fact that you choose as your end date a date in June or July?” Mr Divaratne replied “The June or July because I didn’t say that the traffic has been the drop because the traffic – traffic flow across the whole – whole website certainly til 2024 January because it brings the traffic across all of the pages.”
Mr Divaratne was reminded that Mr Gudipudi opined that organic sessions grew 51% during Area Ten’s engagement from about 34,000 in March 2022 to over 51,000 in December 2023. Mr Divaratne replied “I didn’t agree but I said the traffic – across the board traffic up and down. I did not agree the traffic increase”.
Mr Divaratne was shown data (Court Book p.573) which it was suggested showed “an increase over the period of the engagement right through til December 2023”. Mr Divaratne replied “I agree based on the chart but that correct with the traffic campaigns being done by Google ads”. Mr Divaratne referred to “Google Ads traffic”. There is no evidence that Area Ten or SmartChannel spent “money for the Google ads”. It is ultimately less than clear just what Mr Divaratne was saying about this point. It was squarely put to Mr Divaratne that “When you say there was a significant drop in SEO traffic, you are ignoring the significant improvement that took place between June and December 2023.” Mr Divaratne replied “So that traffic … that impact did across the whole of the site traffic. When I say the traffic increased – I didn’t say the traffic increased – traffic flux, and then increased because the – all the time, December the – through to – starting from the October to the December, normally traffic increased because of the seasonality. That’s what it shows up here”. Mr Divaratne was referred to “peaks” and “bubbles” which were expected.
It was ultimately put to Mr Divaratne that “The overall trend, if you compare the 3 years, the trend in 2023 is higher than it was in 2022 and it’s higher than it was in 2020 … there’s a distinct difference between 2022 and 2023?”. Mr Divaratne replied “Yes”. Mr Divaratne was asked “Do you disagree with Mr Gudipudi’s analysis that organic sessions grew by 51 percent from March 2022 through to December 2023?” Mr Divaratne replied “Based on the chart, sir yes, but like again just for your clarity, because it’s a 2022 to 2023 because we are passing the Covid periods towards 2023, so the people spend more time going out, more things to do on this site, so therefore you can see there is a clear uplift comparing the 2022”.
Mr Divaratne’s reference to “Covid periods”, or anything “attributable to Covid” was not referred to, as he acknowledged, in his report. Mr Gudipudi confirmed that he assumed that, until the end of 2023 Area Ten had access to the Google Search Console and Google Analytics. Mr Divaratne confirmed that he would have expected that to have been the case. Mr Divaratne, who himself provides SEO services, said that it was not essential “all the time” to have access to Google Search Console and Google Analytics but “probably you need to get some kind of access” without which, Mr Divaratne agreed that it “makes your job providing SEO services difficult”. Mr Divaratne did not notice any difference between the reports sent prior to April 2023 and those sent after. It was put to Mr Divaratne “that on 11 April 2023 (Area Ten’s) access to the search console and Google analytics was taken from them?” Mr Divaratne replied “Taken from them?” which prompted Counsel to ask “You don’t know about that?” Mr Divaratne replied “I know like they don’t have access to a certain point of the tools from the – it’s different dates, I couldn’t remember”. Counsel then asked “You couldn’t remember?” Mr Divaratne said “Yeah. But I know that they had access to certain – I believe that they may have had access to the CMS which is on the website as well. I don’t know when exactly that’s been removed or vice versa”.
Mr Divaratne agreed that one cannot discern a drop off “when you look at the site wide data” and confirmed that he agreed with Mr Gudipudi about that. Mr Divaratne disagreed that “When you look at all categories … there’s no drop at around the time of the updates?”, suggesting that there were in some instances. Mr Divaratne did not disagree that “site wide” there had not been a “drop” but maintained that “money pages which the business makes the most money, that has been dropped significantly”. The Court asked whether there was “a chart of that somewhere” Counsel for Area Ten said that he did not “think there is”. Mr Divaratne helpfully said “No, sir, there is not, no”. The Court asked “Whether there is a chart that showed what Mr Divaratne was saying”, to which he replied “What you can see here is like overall traffic, state wide traffic”. The Court’s recollection is that Mr Divaratne said “site wide traffic”.
It was suggested to Mr Divaratne that “Overall, Outbax’s site wide traffic didn’t go down as a result of the updates. You’ve agreed with me about that?” Mr Divaratne replied “Based on this particular chart, it’s a flat – it’s up and down. It’s up and down.” Counsel asked “It’s up and down but you can’t discern a significant downward shift at or about the time of each of the updates that you refer to?” Mr Divaratne replied “Based on chart, yes, sir, but like based on the specific categories you can see the drops and the keyword ranks drops as well”. Mr Divaratne confirmed that his “revenue loss data period” was from 26 June to December 26 2023 and that he maintained there was a 70% drop in that period compared to the previous period, December 24 2022 to June 15 2023. Mr Divaratne confirmed that, between December 2022 and June 2023 Area Ten’s PCA content was on SmartChannel’s website. Mr Divaratne agreed that, based on the chart it “looks” that “there was no problem with the performance prior to June 25 2023”. Mr Divaratne said that it “looks on this chart” that there was a drop off in revenue from June 2023 to December 2023. It was put to Mr Divaratne that “Ultimately, though, the revenue loss that you attribute to my client all occurs after the end of June 2023, doesn’t it?” to which Mr Divaratne replied “Based on the charts, yes”.

The qualifications of Mr Gudipudi and Mr Divaratne to give expert opinion evidence were not challenged. There is no rational basis for considering the expertise of one to be superior to that of the other, particularly given the apparent absence of any objective criteria by reference to which such expertise, unlike the expertise of a professional or tradesperson, might be objectively evaluated. Nor, to the extent that there are established methodologies in relation to the subject of their evidence can it be accepted that the methodology adopted by either expert was preferable to that adopted by his counterpart, or that either expert’s opinion was not based on his expertise (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21). In the main, the experts relied on proven or agreed facts. In one significant respect Mr Divaratne did not do so. Mr Divaratne’s evidence with respect to the cause(s) of SmartChannel’s alleged losses involved speculation not supported by proven or agreed facts, and, with respect to him, a degree of advocacy which detracted from the weight which the Court gives to his opinions where they differ with those of Mr Gudipudi.
On balance, the Court prefers the opinions of Mr Gudipudi to those of Mr Divaratne where they differ. So doing implies no criticism of Mr Divaratne. Mr Divaratne made a number of concessions with respect to “traffic” on the Outbax website over the period from late 2022 to December 2023. Mr Divaratne conceded that his opinions were based on data which concluded in June/July 2023. Mr Divaratne was apparently unaware, until cross-examination, that SmartChannel had withdrawn Area Ten’s access to Google Search and Google Analytics. Mr Divaratne frankly conceded that there was no chart supporting his contentions with respect to the asserted impact on “money pages”. Nor, with respect to him, did Mr Divaratne provide a convincing explanation for his repeated assertions that, although, as he was obliged to agree, traffic to Outbax’s website increased over the relevant period, any drop in SmartChannel’s revenue was causally connected with the low content quality material provided by Area Ten.
On balance, and the balance is not overwhelmingly tipped, the Court prefers the evidence of Mr Gudipudi to that of Mr Divaratne with respect to the issues about which they disagree. Although acknowledged that much of the content provided by Area Ten was of low quality, the evidence does not establish that it was unacceptably low, relative to the quality of other internet websites, or declined in quality between March 2021 and March 2023. Whatever the relative quality of the content, SmartChannel was able to remove it at all material times. Whatever findings the Court makes with respect to the quality of content issues raised by SmartChannel in its Defence and Cross-Claim, the nexus between the quality of SEO services provided by Area Ten and the lost revenue alleged by SmartChannel is problematic. The Court’s inability to accept Mr Divaratne’s opinions with respect to the cause of SmartChannel’s alleged losses means that SmartChannel has not proved its alleged losses, either for the purpose of its defence, or either limb of its cross-claim. As Mr Gudipudi explained, many factors can influence fluctuations in sales. The Court accepts that, where “traffic” increased, a decline in sales through the website may in some way be causally connected with the quality of the content of the website, but is unable to find that has been established on the balance of probabilities.

Mr Tang confirmed that “traffic” was the “key one”, and that revenue was a “secondary measure because SEO does not have as much influence on revenue”, traffic or “sessions” being the main one. That assertion finds support in the evidence of Mr Gudipudi.
Mr Tang explained that Google Analytics and Google Search Console “gives you as close to real time view on what exactly is happening to the website” and that Area Ten’s access to those services was removed by SmartChannel in April 2023. Mr Tang said, and it is not disputed that Area Ten’s access to those services was dependent on SmartChannel “agreeing that you could have that access”.
Mr Tang acknowledged that, from about December 2022 “SmartChannel was raising concerns about the performance of the SEO services being provided by Area Ten”.
Mr Tang confirmed that “custom content” of SEO material referred to “manually or custom prepared copywriting, i.e., articles”, whereas PCE is “artificially generated articles”.
Mr Tang confirmed his opinion “that SmartChannel would have seen clear improvements if it had pursued this course for preparing 150 manually written articles”, a reference to Mr Tang’s suggestion in Area Ten’s early 2023 emails to Mr Sedighi. Whether that would have happened is of less significance than the fact that Mr Tang put forward a proposal which has not been suggested to have been unreasonable, or made other than in good faith. Mr Tang confirmed that “One of the issues in dispute is that Area Ten says (it was) under no obligation to provide manually copywritten articles” but rejected the suggestion that Mr Maggs’ statement that the company was “a hundred percent committed to driving this angle, i.e., preparing manual articles” was a reflection of Area Ten’s awareness that it had to provide such articles. As noted earlier, the time when Mr Sedighi first asserted the obligation, and immediacy of Mr Tang’s rejection of it are significant.
Mr Tang explained that Area Ten provided SmartChannel “with a piece of code that gets – or two pieces of code that get put by SmartChannel onto their website and what that code does is that it recognises the web address, and based on the web address, if there are any rules that have been defined, it said, “Yeah, there is content needed for that page”, then the system will pass content into the section of the page on which the code has been placed.” Mr Tang confirmed that the code prepared by Area Ten was put onto the SmartChannel website by SmartChannel and that, once the code was in place, “When a person goes to a webpage, that code will automatically prefill some area of that page with content generated by PCE”.
It was suggested to Mr Tang that between March 2021 and March 2023 Area Ten did not provide any manually written articles to SmartChannel”, a proposition with which Mr Tang agreed although he was “not a hundred percent sure”. Mr Tang did not dispute Mr Sedighi’s allegations to that effect. Mr Sedighi was unaware of that fact until Mr Tang told him on 7 March 2023. In those circumstances, it is hard to accept that Mr Sedighi believed that the SEO agreement entitled SmartChannel to manually written articles prior to that time, or that the failure to provide them had been an issue for SmartChannel prior to that time, much less a basis for purportedly terminating the SEO agreement 17 days later.
Mr Tang was referred to the differences between the July 2020 agreement between the parties and the March 2021 SEO Agreement and in particular the provision with respect to “SEO copywriting, up to ten pages of SEO copywriting a month we can include as part of the engagement”. Mr Tang confirmed that was a reference to the fact that Area Ten could “provide up to ten free pages of copywriting each month”. Mr Tang confirmed that SmartChannel could, if it wished, purchase additional articles above ten. As recorded above, how SmartChannel viewed this provision of the SEO agreement after 7 March 2023 was quite different to how it was viewed over the preceding two years.
On 20 August 2025 Mr Tang was cross-examined. In evidence in chief, and without objection, Mr Tang identified a schedule (Exhibit P3) which he prepared by reference to a shared Google sheet which had been provided to SmartChannel. Mr Tang said the information in the document was provided by Area Ten to SmartChannel on the dates that appear in the second last column headed “Batch date” of Exhibit P3. Mr Tang confirmed that he recalled Mr Sedighi’s evidence about “whether those documents, the copy documents are artificially generated under programmatic content or whether they were done manually”. Mr Tang explained that the last column headed “Live URL and Doc Match?” of Exhibit P3 indicated, where he had “placed a tick” that the Outbax website on the evening of 19 August 2025 still had the article in place. The Court asked whether Exhibit P3 differentiated between PCE content, and manually produced copywrite material. Mr Tang said “It’s clear that it wasn’t PCE content, the reason being is that PCE content was deployed on very specific web addresses.” The Court asked whether Mr Tang’s evidence was thus that “every item that appears in this chart was manually generated – manually produced copywrite” to which Mr Tang replied “Yes”, and reiterated that “All” of the material identified in Exhibit P3 was “manual content”. Mr Tang was not challenged in relation to Exhibit P3.
Mr Tang’s evidence, which was not challenged, was thus that, as at 19 August 2025, of the 107 articles identified in Exhibit P3 53 remained on the Outbax website. The evidence establishes that SmartChannel could have removed those articles at any time, had it chosen to.
In cross-examination Mr Sedighi agreed that there had not been any issue about requesting manual copywrite services between July 2020 and March 2021, adding that “We didn’t have the problem with the copywriting that was done on the first contract”. Mr Sedighi confirmed that, until March 2021 SmartChannel was “very happy” with the content that was provided by Area Ten. Mr Sedighi said that the earliest time that SmartChannel raised the provision or quality of copywrite services under the SEO Agreement as an issue was in September 2022.
Mr Sedighi confirmed that he had heard Mr Tang’s evidence that, under the second agreement, no manual copywriting was provided until September 2022, by which time the SEO Agreement had been on foot for approximately 18 months, during which “No issue had been taken with any of the invoices that were issued by Area Ten, none of which charged for copywriting services”. Mr Sedighi rejected the suggestion that “Up until November 2022 you were happy with the services that were provided by Area Ten”, notwithstanding that his recollection was that he approved the December 2022 invoice for the month of November 2022 and did not stop payment of it. Mr Sedighi did not accept that, if SmartChannel had the concerns it alleged, it “would have removed the Area Ten material from your website when you brought the arrangement to an end”. Mr Sedighi did not agree that “All of the concerns that you had about traffic in March had been resolved by November/December 2023”. Although he agreed that “traffic had increased substantially over the last six months” of 2023, Mr Sedighi suggested that was “after we took over”. Mr Sedighi clarified that “When we stopped in March 2023, there were efforts made to take over the SEO in terms of fixing the issues that were caused, that we believe were caused, and I believe that that is part of what helped to improve the traffic”. Why SmartChannel did not “take over” the SEO much earlier than Mr Sedighi asserts that it did has not been explained. SmartChannel has not established that it could not have done so.
Mr Sedighi said that he “would partly agree” that Area Ten’s “work remained published on your website until November/December 2023”, not having the “exact dates” as to when it was published until, but “on around that period”. Mr Sedighi did not disagree that Area Ten’s work remained published on SmartChannel’s website until December 2023.
The Court asked Mr Sedighi whether, between March 2023 and December 2023 SmartChannel had retained any other organisation or person to do the SEO work that Area Ten had previously done. Mr Sedighi replied “I don’t believe so … I believe we had consultants or some advice around different elements of the website, but as to having an SEO agency, I don’t recall having an SEO agency recruited by us during that period of time”. The Court could infer that SmartChannel did not do that because it was content to continue to utilise Area Ten’s content.
Mr Sedighi agreed that SmartChannel has “in house IT that are on the website” who “publish a website” which is “effectively, a series of programs on servers that are in your custody and your control”. Mr Sedighi agreed that he could ring up “someone” on his “team” and instruct them to “shut the website down”. Mr Sedighi agreed that he could have rung Mr Tang at any time during Area Ten’s engagement and asked him to shut down part of the website. Mr Sedighi said that SmartChannel had a “multiple number of departments who together can be considered part of the website or part of the broader company”, the team comprising “between three to six”. Mr Sedighi confirmed that SmartChannel had “processes in place to continuously check the website” for a number of matters. The evidence establishes that SmartChannel had the ultimate control of the content which appeared on its website, that it had greater knowledge of the products which were advertised there, and that Area Ten had made that point to it through Mr Maggs’ emails.
Mr Sedighi confirmed that Mitzki Ermita was a “web merchandiser” who continues to be employed by the company, her role being “essentially, an online version of a shop merchandiser … she would take products that are given to her and upload those into the website in the correct place and or otherwise just take some instructions and make those updates on the website”. The email chain suggests that Mr Sedighi’s evidence somewhat downplayed the role Ms Ermita played in the content of SmartChannel’s website.
Mr Sedighi agreed that in 2022 Mr Maggs provided him and Ms Ermita with a report that “listed a whole range of keywords that were going to be the subject of SEO content to be checked by your team”. It was put to Mr Sedighi that “Any time that content was to be provided by (Area Ten) to your company, it wasn’t a case of you simply accepting it and loading it onto the website, was it?”. Mr Sedighi replied “It was”. The circumstantial evidence identified earlier suggests the contrary. Mr Sedighi confirmed that, in his view, it was the responsibility of Area Ten to make sure that, before it gave SmartChannel SEO material to put on the website it had checked that the material did not breach “somebody else’s copyright”. No contractual or other basis emerging from the evidence establishes that allegation.
In relation to the Google DMCA reports, it was put to Mr Sedighi that he did not give instructions for material on the website which gave rise to the DMCA report to be “taken down”. Mr Sedighi said that he recalled “a conversation internally with our team as to the concern I had for these pages and to then directing the team to create a bit of a plan or project as to what we do and suggesting we need to take these down” but agreed that a “large number” but not all of the pages were taken down. Mr Sedighi agreed that his Affidavit was silent with respect to the steps which he alleged that SmartChannel had taken in response to these concerns. Mr Sedighi agreed that SmartChannel could have removed content from its website at any time. Mr Sedighi’s vagueness with respect to these matters is understandable – he was really only directly involved in the operation of the SEO Agreement from late 2023. The court has earlier recorded the contemporaneous communications between Area Ten and those at SmartChannel who were at the coalface. They paint a different picture.
In further cross-examination Mr Sedighi agreed that Mr Maggs had recommended a “redirect” with respect to website pages the subject of the DMCA request, and had removed content from those pages. Mr Sedighi confirmed that Area Ten had been “responsive” to SmartChannel’s concerns and offered to “swap” pages out for other pages if SmartChannel requested it to do so. Mr Sedighi maintained that the potentially offending material was created by Area Ten and posted onto SmartChannel’s website without there having been any process of reviewing that material within SmartChannel. If that is so, the evidence establishes that SmartChannel must bear at least some responsibility for that to have occurred.
Mr Sedighi was cross-examined in some detail about discussions as far back as March 2021 in relation to the potential use of “competitor keywords” on SmartChannel’s website. Mr Sedighi was adamant that, in his “belief” it was Area Ten’s responsibility to ensure as far as possible that nothing appearing on SmartChannel’s website infringed or might infringe a third party’s intellectual property rights. For the reasons recorded above, and earlier, the Court does not share that belief.
Mr Sedighi was cross-examined with respect to his email of 19 January 2023 and to his earlier enquiry “Can we capture traffic by creating pages from related products, competitor keywords for these ranges” and confirmed that SmartChannel “wanted to use competitor keywords” because “it made a difference to your bottom line”. Mr Sedighi said that doing so was the “result” of “many meetings with Area Ten, video call meetings, and this was the result of a conversation where Area Ten suggested we use (not transcribable) competitor keywords of which I flagged a concern of how we do that. How we employ that strategy was a big concern for me”. Mr Sedighi confirmed that this was a “live topic in March 2021”, whether that is so or not, Mr Sedighi suggested that SmartChannel first had concerns about the quality of SEO services being provided by Area Ten in September 2022, and first raised those concerns with Area Ten in November 2022. Mr Tang was not seriously confronted with the thrust of Mr Sedighi’s allegations in cross-examination.
Mr Sedighi conceded that there had been a “sharing” of keywords which were going to be targeted in programmatic content prepared by Area Ten. Mr Sedighi was referred to Mr Maggs’ email in January 2022 stating “This is why we have the client review process as product and competitor knowledge is critical in this process”. Mr Sedighi rejected that there was such a process, but agreed that he did not in his email, nor did Mr Geluz “take issue” with Mr Maggs, in fact responding by email on 24 January stating “Tim, thanks for sharing these. Regarding the PC performance improving, can you help export and share the report data, traffic revenue?”. Mr Sedighi rejected the suggestion that that was “because you were impressed … with his initial response which showed the programmatic content was working?”. Mr Sedighi said that he was “Really concerned actually, so my belief was that it was underperforming, and so I was asking for further clarification.” The ten months silence which followed renders acceptance of that contention difficult.
Mr Sedighi accepted that ultimately SmartChannel publishes the website and has the ability to “pull or maintain or modify anything on that website at any time”.
Mr Sedighi was cross-examined in relation to the table prepared by Mr Tang which became Exhibit P1. It was put to Mr Sedighi that the manual content provided to SmartChannel on or around 10 March 2023 by Area Ten was “still up on your website”. Mr Sedighi agreed that, although he did not think that the content was manually written, he accepted that in each case it was uploaded by SmartChannel staff and appears still on the company’s website.

On 9 September 2025, after the close of evidence, SmartChannel filed a Notice of Motion seeking that, pursuant to rr 2.1 and 29.5 of the Uniform Civil Procedure Rules 200**5 (NSW), it be granted leave to reopen its case for the purpose of adducing further evidence in the form of the Affidavit of Vahid Sedighi affirmed on 9 September 2022, and Exhibits VS2 and VS3 to that Affidavit”. SmartChannel sought that the costs of the Motion be costs in the cause. Area Ten vigorously opposed the motion.
In his Affidavit of 9 September 2025, Mr Sedighi referred [5] to having been cross-examined on 20 August 2025 “on a folder of documents that was admitted into evidence and marked Exhibit P2”. Mr Sedighi said, correctly, that the folder contained emails between Area Ten and SmartChannel, and articles that had been provided to it by Area Ten.
Mr Sedighi referred [6] to page 18 of Exhibit P2, being an email from Mr Maggs of Area Ten to Ms Ermita of SmartChannel dated 7 December 2021. Mr Sedighi referred [7] to a link to a video prepared by Mr Maggs which Mr Sedighi said [8] he “accessed” after his cross-examination on 20 August. Mr Sedighi identified the video and produced an accurate transcript of the contents which was tendered to the Court (Exhibit VS-3). Mr Sedighi did not suggest in his Affidavit that there had been any impediment to his accessing or transcribing the video between December 2021 and any time prior to 20 August 2025.
Under the heading “Calculation of invoices”, Mr Sedighi suggested [12] that “The invoices relied upon by Area Ten have been calculated incorrectly and not in accordance with the formula contained in the second SEO agreement”, for reasons which Mr Sedighi asserted later in his Affidavit. Mr Sedighi is an intelligent and experienced corporate officer. SmartChannel has at all material times been represented by competent solicitors, and, at least by the time the hearing commenced, astute and well-prepared Counsel. Why, if this was an issue, it only arose when it did is hard to understand, and has not been adequately explained.
As was submitted by Area Ten, although SmartChannel has at all times, in defending its claim, and in support of its Cross-Claim, disputed that Area Ten was entitled to the sums referred to in the invoices, 9 September 2025 was the first indication, formal or otherwise, in any context, that the invoices relied upon by Area Ten were alleged to have been “calculated incorrectly”. As submitted by the Area Ten, if allowed, the challenges to the invoices represented a material change to the SmartChannel’s defence and, presumably, its cross-claim.
Mr Sedighi referred [15] to page 1 of Exhibit P3, a document prepared on behalf of Area Ten which was previously received in evidence as the calculation of Area Ten’s “Revenue Share”. Exhibit VS2 to Mr Sedighi’s Affidavit was said [16] to be a “calculation summarising what I say are the correct calculations that should have been used to calculate the revenue share”. Mr Sedighi then, in a series of paragraphs containing some allegations of fact, some opinions and some conclusions, and by reference to extensive source documents, advanced reasons for his contention that Area Ten’s invoices were incorrectly calculated. To look at the nature and extent of the documentation to which Mr Sedighi referred is to gain some appreciation of the extent to which, permitting the Defendant to re-open to raise issues which could have been raised prior to the close of evidence and the filing of written submissions would be unfairly prejudicial to Area Ten. It would have to meet a case which could have been raised years ago. It is apparent that the “invoice issue” would involve expense, and delay in finalising the proceedings which would be likely to be disproportionate to the amount realistically involved.
Without resiling from its opposition to the Defendant being granted leave to reopen its case, and on the clear agreed basis that, if Area Ten was permitted to reopen its case the Affidavits could be relied upon, Mr Tang swore Affidavits on 25 September 2025 and on 7 October 2025.
In written submissions Counsel for SmartChannel submitted [38] that Mr Sedighi’s Affidavit “draws attention to a video prepared by Area Ten (referred to in an email contained in Exhibit P2) that corroborates Mr Sedighi’s evidence that Area Ten did not provide any manually written articles”. If that is the fact, that email is already in evidence and would not be a matter about which SmartChannel could now seek to adduce further evidence. As with all the documentary evidence before the Court, that Exhibit speaks for itself. It was always open to SmartChannel to cross-examine Mr Tang on it, and to make submissions in reliance on its contents. Unless SmartChannel’s construction of the SEO Agreement is accepted, at most, the video might marginally assist its case.
The second topic which SmartChannel’s further re-opening sought to agitate was its assertion that “the invoices claimed by Area Ten were not calculated in accordance with the second SEO Agreement” and that the “effect of Mr Sedighi’s Affidavit is that, when calculated in accordance with the second SEO Agreement, Area Ten was not entitled to payment from SmartChannel”.
Counsel for SmartChannel relied, correctly, on Stevenson J’s summary of the relevant principles in Cappello v Scrivener (No. 2) [2021] NSWSC 168, at [46] as establishing that:

Counsel for SmartChannel submitted [40] that leave should be granted on the basis that the evidence arose from documents introduced in cross-examination. Without criticising Counsel for SmartChannel, why that was not done prior to the close of evidence was not adequately explained. The way the case was pleaded and conducted until 9 September 2025, that submission could relate only to what was referred to as the “article evidence” and not the “invoice evidence”.
It was submitted that “SmartChannel had always alleged that Area Ten did not provide manually prepared articles” and that, as such, “it would be expected that Area Ten would have adduced this prior to the hearing, rather than trying to introduce it by the “back door” at hearing”. With respect to Counsel for the Defendant, that is the first time that there has been, although disputed, any protest about the evidence relied upon by Area Ten. Again with respect to Counsel, if a “back door” is involved in this issue, it is SmartChannel who is seeking to enter through it. SmartChannel having not put the accuracy of the invoices in issue by its pleadings, or otherwise, Area Ten had no reason to adduce evidence in support of them.
It was submitted, correctly, that, at the hearing, SmartChannel “generally foreshadowed that its non-objection to documents introduced in cross-examination was conditional on it investigating links within the emails, including the emails in Exhibit P2 containing the relevant video”. The silence following completion of the evidence at the hearing suggests that, at least at that time, SmartChannel did not consider that it needed to adduce further evidence. Moreover, as the video speaks for itself, it is difficult to understand the scope for further evidence, as opposed to submissions in reliance upon documents which were already in evidence.
It was submitted that refusing leave to re-open would result in the Court “proceeding on a material, and a correctable, misapprehension of fact”. The Court does not accept that, if the article evidence “suggests that all, or some, of the articles contained in Exhibit P2 were not manually prepared”, that would be material to the Court’s construction of the SEO Agreement. If SmartChannel’s construction of the SEO Agreement is accepted, there is already evidence from both parties which would inform the Court’s decision on the merits of issues relating to manually prepared content.
It was submitted [41] that Mr Sedighi’s evidence arose following the service of the Affidavit of Mr Tang of 15 August 2025. There was no objection to Area Ten relying upon that evidence. It was the subject of cross-examination, and could have been the subject of further cross-examination throughout the hearing, which commenced on 19 August 2025. It could have been the subject of a reservation with respect to further cross-examination.
In a submission which bespeaks the candour of Counsel for SmartChannel it was submitted to have been “regrettable that the issues with the invoices were not discovered during the hearing”. Despite Counsel’s offer to “fall on his sword”, the Court makes no criticism of Counsel for any oversight in relation to the asserted “issues” with the invoices. Cold reflection on how a case was conducted in the heat of battle deflects attention from the reality that SmartChannel was best placed to know if it disputed Area Ten’s invoices, and to have known that when Area Ten served its statement of claim commencing the proceedings. In cross-examination about invoices which had been paid after SmartChannel became disenchanted with Area Ten, Mr Sedighi revealed a vagueness which suggested that, in early 2023, he was not sure what had and had not been paid, much less what had been disputed, or, if it had, on what basis. The court has earlier recorded SmartChannel’s acceptance of Area Ten’s earlier, upward, amended invoices.
From the time the case was pleaded until 9 September 2025, there was no “issue” with respect to the invoices. At all times prior to that date, the issue was whether either pursuant to SmartChannel’s Defence or its Cross-Claim, Area Ten was not entitled to recover the monies identified in the invoices. If at this late stage SmartChannel is not permitted to introduce the further evidence, it does not mean that the Court is at risk of proceeding on a “material misapprehension of fact” but rather is proceeding on the evidence which is before it.
It was submitted [42] to be “fortunate” that the timing of SmartChannel’s application “means that, should the evidence be allowed, it can be accommodated within the existing timetable for closing submissions”. The Court considers it to be “fortuitous”, rather than fortunate that that may have been the case.
Counsel for Area Ten did not cavil with Counsel for SmartChannel’s reliance on Cappello as a statement of the relevant principles, and referred the Court [39] in written submissions of 23 September 2025 to the decision in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 which was submitted to be “authority for the proposition that in considering whether it was “just” at this stage of the proceedings to permit a case to be reopened and new evidence adduced, the evidence must be “credible, highly probative, and not previously obtainable by reasonable diligence”. The evidence sought to be relied on may be credible in the sense of being Mr Sedighi’s honest beliefs, but whether it is reliable in all the circumstances is another issue. The Court is not persuaded that the evidence would be “highly probative”. The evidence was “previously obtainable by reasonable diligence”. Properly, Counsel for SmartChannel does not suggest otherwise.
Counsel for Area Ten referred to the observations of McGrath J in Toppi v Toppi (No. 3) [2025] NSWSC 733 at [413] that:

It was properly acknowledged by Counsel for SmartChannel in oral submissions that Area Ten did not suggest that SmartChannel had refrained from seeking to adduce Mr Sedighi’s further evidence as a “deliberate or tactical decision” or, as the Court more bluntly suggested “deliberately kept its powder dry”.
It was submitted [42] by Counsel for Area Ten that the “premise” of the tender by SmartChannel was that “the email demonstrates that the remainder of the content that was provided to Ms Ermita in Exhibit P2 was not manual content but PCE content”, a premise which was submitted [43] to not be supported by the evidence in Exhibits P2 and P3. In view of the court’s construction of the SEO Agreement, for the reasons recorded below, admitting this evidence would not alter the Court’s decision.
It was submitted [45], correctly in the Court’s view, that the video does not detract from the force of submissions made by SmartChannel (identified at [44]). It was further submitted [46] that when the video is viewed “in its entirety”, Mr Maggs was “seeking to provide guidance to the SEO copywriter recently employed by SmartChannel … about how that content should be written”, and that his doing so “by reference to programmatic content is neither here nor there. It does not move the needle on whether manual SEO content was provided”. There is force in that submission.
It was further submitted [48] that despite Mr Sedighi having been cross-examined on the second day of the hearing about Exhibit P2, SmartChannel’s written submissions of 5 September 2025 did not raise the issue. Importantly it was submitted [49] that “No explanation is given as to why the point could not have been raised or an application made before then (9 September 2025), particularly when Mr Sedighi said that he reviewed the email after being cross-examined. Nothing then happened for a period of weeks. It was submitted [51] that the evidence was “not highly probative in any event”. The Court accepts that, whatever probative value the evidence has, that probative value is established by what is already before the Court.
With respect to the “quantum – unpaid invoices”, Counsel for Area Ten at [53] set out the relevant background to that issue. Each of the eight points there made has force. It was submitted [54], correctly in the Court’s view, that SmartChannel was seeking “the opportunity to make an entirely new case in defence, one that it could have made from the time it was served with a Statement of Claim but chose not to, and which has only surfaced, after the Plaintiff’s written submissions were served”. So far as the purported challenge to the accuracy of Area Ten’s invoices is concerned, that contention is irresistible in the Court’s view.
SmartChannel’s application to re-open its case occupied significant hearing time on 24 September 2025. The issue was first agitated on 24 September 2025 when it was agreed in principle that the parties could rely upon the affidavit evidence filed in support of SmartChannel’s Notice of Motion and Area Ten’s opposition to it on the voir dire, and that, when giving judgment in the cause, the Court would give judgment on the Notice of Motion (transcript 24 September 2025, page 7, line 43-48). But, for the reasons which emerged from the transcript of that day, SmartChannel’s Notice of Motion proceeded to only a limited extent. On 29 October 2025, Mr Sedighi was cross-examined. Mr Sedighi agreed (Transcript 29 October 2025, page 2, line 21-31) that his access of the Exhibit P2 video had occurred after his cross-examination on 20 August 2025 and before written submissions in the matter had been prepared.
Mr Sedighi was cross-examined at some length (Transcript 29 October 2025, page 3, line 3-46) in relation to the history of Area Ten issuing invoices and SmartChannel paying them. That evidence establishes that, if SmartChannel wished to challenge the accuracy of Area Ten’s invoices, it had ample opportunity to, but did not do so, years prior to the pleading and presentation of its case in these proceedings.
Mr Sedighi was cross-examined on his schedule (Exhibit VS2) (Transcript 29 October 2025, page 6, line 24-49) and agreed with suggestions put to him that, after April 2023, when Area Ten ceased to have access to the Google Search Console and Google Analytics, Area Ten could not “issue invoices based on that date”, a proposition with which Mr Sedighi agreed. It was put to Mr Sedighi that, in those circumstances, the figures extracted from those sources “don’t really matter” after March 2023. Mr Sedighi, for the first time since the case commenced, disputed that proposition. Objectively, if the SEO Agreement was then on foot, having been denied access to those data sources, Area Ten was entitled to invoice SmartChannel in accordance with the SEO Agreement.
Mr Sedighi admitted in cross-examination (Transcript 29 October 2025, page 7, line 34-44) a series of propositions put to him in relation to the calculation of Area Ten’s invoices prior to March 2023. Mr Sedighi was asked by the Court about the calculations in his schedule, during the course of which he said that the “performance was so poor that we – it’s possible, because it’s a revenue share model, that we go either great performance, or such a poor performance, because the performance is a ratio of – between branded and non-branded, and so the – because of that ratio, there is a possibility that branded is doing well, that organic revenue from the service provider is not doing well, and so the – because we are deducing – we’re going I – H, if I is not a positive number, a good result, then it’s very well positive that the result is negative”.
Mr Sedighi agreed that “If this was a live issue, and this was an issue that concerned you prior to 9 September (2025), when you sought to raise it, it would have been a matter that the experts, who were engaged at great cost to the parties, could have addressed their minds to?” Mr Sedighi agreed that he “hadn’t raised this earlier, yes”. Mr Sedighi agreed (29 October 2025, page 10, line 20-22) that he believed that the first time that Mr Tang saw his table was on or about 9 September 2025. In further cross-examination (29 October 2025, page 10, line 25-30) Mr Sedighi agreed that the spreadsheet attached to Mr Tang’s most recent Affidavit “was regularly sent to you” and “was something that you were able to access at any time during the lifetime of the contract”. Mr Sedighi was unsure (Transcript 29 October 2025, line 21-41) about whether his further evidence in relation to the content of material provided by Area Ten was something about which the parties’ experts could usefully have given evidence or have been instructed. Having regard to the technical nature of the matters with which the experts engaged, and the difficulties the Court has identified in evaluating that evidence, it is difficult to accept that having referred these issues to the experts would not have resulted in evidence capable of being relevant to the issues which the Court has to determine.
In submissions (commencing line 45-50, 29 October 2025, p.18) it was submitted by Area Ten that there had been no explanation for SmartChannel’s delay in seeking to challenge the accuracy of Area Ten’s invoices and that “from the earliest days in this case, no issue was taken as to the issue for quantum, for one month, for any more months, or for the entirety. The defence does not argue that issue. The evidence did not argue that issue. If it was an issue, it was an issue that could easily have been referred to the experts, and given the way in which it has been put in Mr Sedighi’s affidavit evidence, and the way in which Mr Tang has responded to it in his affidavit evidence, it is inescapable that it was ripe for the experts to deal with”. It was further submitted (29 October 2025, page 19, line 5-9) that this caused “significant prejudice to the parties” and that it was “inarguable” that the better way to proceed would have been by referring the matter to experts.
It was further submitted (29 October 2025, page 19, line 20-25) that Mr Tang’s evidence in response to Mr Sedighi’s evidence was not the subject of cross-examination. That is correct, but, consistent with the spirit in which the case has been conducted at hearing, the Court would not draw adverse inferences from the absence of cross-examination on the point. The concessions which Mr Sedighi was obliged to make in cross-examination, compared with the absence of successful challenge to Mr Tang’s evidence suggest that, if it were necessary to do so, Mr Tang’s evidence would be preferred to that of Mr Sedighi.
In the circumstances, Counsel for SmartChannel was constrained in what he could realistically and properly submit in support of SmartChannel’s application for leave to re-open. That is particularly so in relation to the purported invoice issues. Counsel for SmartChannel could not have more valiantly and candidly agitated SmartChannel’s case than he did.
In exchanges between Counsel for SmartChannel and the Court (29 October 2025, page 24), it was, sensibly, effectively acknowledged that the email and video in Exhibit P2 being in evidence and speaking for themselves, SmartChannel’s case could not be advanced by Mr Sedighi’s commentary in relation to them, they being matters for Counsel to make submissions about. Again sensibly in the Court’s view, and without abandoning the video claim, Counsel for SmartChannel turned his attention to the “invoice evidence”. Counsel for SmartChannel reiterated (29 October 2025, page 25, lines 11-15) his earlier written submissions with respect to the late service of Mr Tang’s Affidavit of 15 August 2025. The Court accepts that the evidence was late and that SmartChannel’s decision not to object to it being read in the Area Ten’s case was conditional upon having the opportunity to review it. The reality is that SmartChannel had almost three weeks to consider its position and did not, after Mr Sedighi finished his cross-examination and re-examination, signal that it would seek to revisit the affidavit. More importantly, from the time SmartChannel filed its pleaded Defence and Cross-Claim until 9 September 2025, whilst vigorously disputing that Area Ten was entitled to the monies claimed in the invoices which had not been met, SmartChannel at no time disputed that the invoices had been calculated in accordance with the SEO Agreement until access to the Google data was denied to Area Ten, or thereafter in accordance with the default provisions of the SEO Agreement.
It was submitted (29 October 2025, page 26, line 13-20) that the Court would accept that there was not a “tactical decision to bring this evidence in late”. The Court accepts that that is the case. That does not however alter the implications of allowing the further evidence to be adduced. Although understandable, with respect to Counsel for SmartChannel, the submission that Area Ten had “now nearly two months” to respond to the evidence is putting the cart before the horse. The reality is that, other than by what would potentially be an accounting exercise of some magnitude, potentially necessitating recalling the internet experts, allowing SmartChannel to re-open to put the calculation of Area Ten’s invoices in issue would extend the case and the costs of it, to an extent which is disproportionate to the issues involved having regard to the Court’s findings with respect to liability.
Counsel for SmartChannel referred (29 October 2025, line 47-49) to Mr Tang’s evidence in cross-examination that he had not taken any steps to bring Mr Sedighi’s calculations with respect to the invoices to his expert’s attention. The Court suggested that SmartChannel at no time prior to 9 September 2025 having raised an issue with respect to them, there would have been no reason for Mr Tang to have done so. Properly, Counsel for SmartChannel did not vigorously dispute that proposition.

SmartChannel and Area Ten filed written closing submissions on 5 September 2025. As did the written submissions of Counsel for Area Ten, Counsel for SmartChannel’s submissions comprehensively addressed the major issues in the proceedings.
Counsel for SmartChannel reiterated the basis of its contract claim as: [6] that it was a term of the SEO Agreement that Area Ten was required to provide SmartChannel with ten manually copywritten articles each month; [7] that it was a term of the SEO Agreement that Area Ten was required to provide SEO services that built the authority of the Outbax website; and [8] that it was a term of the SEO Agreement that Area Ten was required to comply with all applicable Australian laws and regulations in providing SEO services.
It was submitted that Area Ten breached the SEO Agreement: [9] by reason of its failure to provide SmartChannel with ten manually copywritten articles each month; [10] by providing low quality PCE generated articles that reduced the authority of the Outbax website; [11] by providing content that infringed the intellectual property rights of third parties and the ACL.
SmartChannel submitted [12] that Area Ten’s breaches of the SEO Agreement were sufficiently serious as to entitle it to terminate the agreement on 24 March 2023. SmartChannel submitted that it was accordingly entitled to be repaid the fees which it had paid Area Ten, relieved of any obligation to pay unpaid fees, and entitled to damages for Area Ten’s breach of the SEO Agreement.
SmartChannel’s ACL claim was submitted to be reliant on misleading or deceptive representations by Area Ten including [14] that the SEO services provided by Area Ten complied with SEO guidance published by Google. That representation was submitted to have been misleading or deceptive as the PCE generated articles provided by Area Ten were low quality and reduced the Outbax website’s authority [15]. The representation was further submitted [16] to have been misleading or deceptive as Area Ten’s provision of low quality PCE generated articles did not comply with the guidance provided by Google in its “helpful content update” published in August 2022. SmartChannel asserted [17] that it suffered loss or damage because of Area Ten’s contravention of s 18 of the ACL, and was entitled to damages pursuant to s 236 of the ACL.
The legal principles with respect to contractual construction were identified [19] by reference to the statement in Electricity Generation Corporation v Woodside Energy Ltd (2014) 215 CLR 640; [2014] HCA 7, at [53] that:

The Court does not understand the principles asserted by SmartChannel to be controversial, the case turning on the Court’s findings of fact with respect to material disputed issues which are relevant in accordance with the principles.
In response to Area Ten’s assertion that it had no obligation to provide manually prepared articles, and that it was an “optional extra”, reliance was placed on three particular matters. It was submitted [22] that the SEO Agreement must be “understood” in the context of the parties’ historical dealings, and particularly the previous SEO Agreement. It was submitted, accurately, that apart from the revenue share formula, the only material differences between the SEO Agreement and the earlier SEO Agreement were the inclusion of the fifth and sixth bullet points under the heading “Ongoing optimisation” (page 6 of 8, Court Book p.142). As submitted by SmartChannel, those paragraphs set out the scope of work to be provided by Area Ten.
It was submitted [22] that, in circumstances where Area Ten had always offered manual copywriting services, it would have been redundant to include a term that specifically addressed manual copywriting services if it was no more than a task that it could perform at its discretion. The Court has difficulties with that submission as a matter of contractual construction. The absence of reference in the SEO Agreement to a matter of substance, whether or not it was included in the earlier SEO Agreement, which was of materially different in nature and objectives, militates against accepting SmartChannel’s contention. If the parties intended the obligation of Area Ten to provide manual content to be a condition or term of the SEO Agreement, that could have been made clear by simply providing that Area Ten “shall” or “will” provide such services, rather than “may” do so.
SmartChannel submitted [23] that the terms of the SEO Agreement were consistent with its construction of the Agreement, and relied on the SEO Agreement providing that “For any content that is required which goes beyond the scope of the ongoing optimisation, Area Ten can provide copywriting services at a flat rate of $85 ex GST”. The provision to which SmartChannel referred under the heading “SEO Copywriting” (Court Book page 143) recorded that:

It was submitted, correctly, that Mr Tang acknowledged in cross-examination that there were two “key variables” to maximise the chances of “recovery” of a website, they being “authority” and “content”. As authority is analogous to quality, it is apparent that it is the quality of the content which assumes significance.
The evidence clearly establishes what “authority” involved. The SEO Agreement was clearly intended to enhance the revenue of SmartChannel and, pursuant to the agreement, Area Ten’s revenue. The “objective” recorded in the SEO Agreement (Court Book 142) states “The objective of this program is to grow Organic traffic which in turn drives incremental revenue. The more incremental revenue that gets generated from SEO initiatives the more that can be invested to fuel further growth. The proposed revenue share model ensures that growth helps fuel further growth”.
It is not in doubt that SmartChannel hoped, by utilising Area Ten’s services, to generate “traffic”, which can be regarded as “views” of its website, in the hope that some of that traffic would result in sales. The evidence establishes that the quality of the content appearing on a website is likely to impact upon traffic and, potentially, conversion of that traffic to sales. The evidence establishes that Google monitors the quality of content appearing on a website and, by reference to it, determines where in the “pecking order” that website appears when a Google search of a topic is made.
The Court accepts, as submitted by SmartChannel [32] that the objective of the Agreement was that Area Ten provide services which sought to enhance the authority of the Outbax website. Both parties influenced the content of SmartChannel’s website – Area Ten initially, SmartChannel ultimately. To what extent responsibility for the content of SmartChannel’s website was predominantly that of Area Ten, or of SmartChannel is vigorously contested by the parties. The resolution of that issue assumes significance in relation to SmartChannel’s claim that Area Ten breached the SEO Agreement.
SmartChannel referred to the inclusion in the SEO Agreement of the statement that “Core to SEO performance is third party validation. [Area Ten]’s offsite optimisation program will be undertaken to build authority to the target site through initiatives that may include but are not limited to”. It is not in doubt that the target site was SmartChannel’s Outbax website or that the objective of the SEO Agreement was to build the authority or quality of the website. Whether that statement imposed obligations on Area Ten, and, if it did, the scope of those obligations could not reasonably be construed as implying that “authority” would actually be built if Area Ten did those things.
SmartChannel submitted [33] that the Court would find that the SEO Agreement “contained the term that Area Ten was required to provide SEO services that built the authority of the Outbax website”. The Court cannot accept that contention. At most, and accepting that the drafting of the SEO Agreement was less than optimal, Area Ten lacked control over so many variables, including, the ultimate content of the Outbax website, that the most it could have been expected to do, interpreting the SEO Agreement as a commercial contract, was to make reasonable and appropriate efforts to seek to optimise, or maximise the authority of the website.
SmartChannel submitted, and Area Ten has not denied, that it was an implied term of the SEO Agreement that its services would comply with all applicable laws and regulations in Australia. Area Ten disputes that it failed to do so. The evidence relied upon by SmartChannel in support of its contention are the Google SEO takedown notices. Whilst those may have been referable to some breach of Google protocols, it has not been established that they breached applicable Australian laws. Moreover, the issue of responsibility for such breaches involves determining the disputed issue of responsibility for the content which ultimately appeared on the Outbax website.
SmartChannel submitted [36] that the Court should find that Area Ten had not provided it with manually prepared articles during the term of the SEO Agreement, and submitted [37] that the evidence relied upon by Area Ten in support of its contention that it did provide manually prepared articles during the SEO Agreement should not be accepted but, even if it did so, the quantity and frequency with which such articles were provided rendered Area Ten in breach of the SEO Agreement. The resolution of that issue turns on the construction of the operative provisions of the SEO agreement.
SmartChannel reiterated [39] Mr Sedighi’s assertion in his first Affidavit that Area Ten did not provide copywriting services during the term of the second SEO Agreement. It was submitted that Mr Tang’s Affidavit in reply did not challenge that assertion but “danced around this issue”. It was submitted [39] that, having regard to Mr Sedighi’s evidence and the grounds of SmartChannel’s defence, Area Ten should have adduced exculpatory evidence prior to the hearing, if it existed. Reliance was placed on Mr Tang’s initial response in cross-examination (Transcript page 35, lines 28-31) that he did not think that Area Ten had produced manually written articles.
SmartChannel submitted [40] that contemporaneous emails corroborated that Area Ten did not provide manually prepared articles. Reliance was placed on Mr Sedighi’s purported termination of the SEO Agreement by email on 24 March 2023 in which he stated “There is also the issue of the contractual agreement, where Area Ten was expected to write ten high quality articles per month. We have never received any written content and instead, our team spent the effort to write all of the content”. It was submitted that Mr Tang had not challenged that statement in his replying email of 30 March 2023. It was further submitted that Mr Maggs did not contend that Area Ten had been preparing manually written articles in his email of 7 March 2023 in response to an email from Mr Sedighi enquiring whether Area Ten had been “writing any articles?”.
The contents of Exhibit P2 in relation to the issue were submitted by SmartChannel [41] to be “unpersuasive” for three particular reasons:

It was submitted [45] that “even if it is found that Exhibit P2 reflects the occasions that Area Ten provided manually prepared content, it still does not assist Area Ten”. The Court is not persuaded that the contents of Exhibit P2 are unreliable.
Area Ten’s “best case” was submitted by SmartChannel [45] to be that it provided articles in May 2021, September 2021, November 2021, December 2021 and March 2023. Accepting that proposition, and SmartChannel’s silence between January 2022 and November 2022, that does not advance SmartChannel’s case. Nor does the contention that, between the date of the SEO Agreement (3 March 2021) and 24 March 2023 only 94 articles had been provided whereas 230 should have been given SmartChannel’s absence of complaint until November 2022. The provision of the articles is consistent with Area Ten’s assertion that it could, but was not obliged to provide such articles under the SEO Agreement. SmartChannel’s silence in relation to their non-production is significant in view of its claim, albeit first articulated on 24 March 2023, that Area Ten was obliged to provide them.
In relation to the asserted failure of Area Ten to build authority due to low quality PCE articles, SmartChannel relied [46] on Area Ten’s expert, Mr Gudipudi agreeing that the PCE generated content provided by Area Ten was low quality, and could affect the authority of the Outbax website. Reliance was placed on Mr Guidpudi’s evidence that a website with good quality content would have enhanced authority and higher Google search ratings, and Mr Gudipudi’s evidence that he would not provide Area Ten’s PCE generated content to his own clients due to its low quality. The Court has earlier examined the competing expert opinion evidence and made findings with respect to it.
The “gist” of Area Ten’s case on this issue was submitted by SmartChannel [47] to be that “Even if the PCE generated content was of low quality, the authority of the Outbax website was not adversely affected as website traffic continued to improve throughout 2023”. That argument was submitted to fail for four reasons:

(a) 38 invoices were issued under the (SEO and earlier agreements); (b) 9 were issued under the earlier SEO Agreement, each for $5,500 inclusive of GST, all of which were paid; (c) 29 invoices were issued under the SEO Agreement and all but 11 were paid in full; (d) the last invoice issued under the SEO Agreement to be paid was the 6 February 2023 invoice on 28 February 2023; (e) there was no dispute about the calculation of the revenue share; (f) there “does not seem to have been any dispute” about payment of any invoice until March 2023”. Counsel referred to Mr Sedighi’s evidence that the unpaid invoice of 6 December 2022 (Court Book 426) for $12,463.95 he believed he had authorised payment of and could not recall stopping it. It was submitted, correctly, that there was no evidence of any “contemporaneous complaint about this invoice”; (g) despite the December invoice not being paid, the January and February invoices (Court Book 92 and 93) were paid, Mr Sedighi acknowledging that he must be taken to have authorised those payments; (h) the January and February payments were made on 23 January and 28 February respectively, not long after the DMCA takedown by the Google search team on 18 January 2023; (i) the last 8 invoices, covering the period from the beginning of May 2023 until the end of November 2023 were calculated in accordance with the SEO Agreement in circumstances where, in breach of the Agreement, SmartChannel denied Area Ten access to Google Search Console and Google Analytics from 11 April 2023; (j) Mr Tang gave unchallenged evidence that from 11 April 2023 SmartChannel removed its access to the Google Search Console and Google Analytics pages and that such access was never restored, thereby denying Area Ten the ability to calculate the revenue share and deliver its usual reports which relied on that access. In the evidence identified earlier, Mr Sedighi agreed that, until May 2025 apparently pursuant to a court order, Area Ten had been denied that access.

It was submitted that none of the invoices supplied by Area Ten “included any component for SEO copywriting services”. The Court has earlier referred to Area Ten’s opening submissions where the basis on which it was submitted to be entitled to recover the unpaid invoices and damages was articulated. In view of the rejection of SmartChannel’s motion to re-open its case and challenge them, it is unnecessary to engage further with these submissions.
In relation to the Defence and Amended Cross-Claim, it was submitted by Area Ten that there was no admissible evidence before the Court with respect to the “compliance representation” asserted by SmartChannel in its Amended Cross-Claim at [3(a)]. It was submitted, correctly, that Mr Wei, who executed the SEO Agreement, and the earlier agreement on behalf of SmartChannel, and was the controller of SmartChannel, did not give evidence, and that no explanation was given as to why he did not. It was submitted to be significant that Mr Sedighi could not give evidence about the compliance representation and that Mr Wei, who could, elected not to do so. It was submitted that there was no reason for the Court not to accept Mr Tang’s evidence with respect to any compliance representation. As recorded later in these reasons, there is force in those contentions.
It was submitted [26] that the representations relied on by SmartChannel were “alleged to have been made in July 2020, i.e., in connection with the first contract; although the pleading does not refer to that contract in any way”. It was submitted that SmartChannel had not demonstrated that any representations made in July 2020 in the context of a fee for service agreement could be relied upon in the context of the SEO Agreement with which this case is concerned, they being “fundamentally different in that (the latter) was a revenue sharing model as opposed to fee for service”. The “silence” of SmartChannel on that issue was relied upon, it assertedly having made no allegation of any representation specific to the SEO Agreement, and neither Mr Sedighi nor Mr Wei giving evidence about why it was that the things alleged to have been said in the context of the earlier agreement were relied upon subsequently in the context of the SEO Agreement. It was submitted that, on that basis, to the extent that the Defence relied upon it, and the Cross-Claim, which did rely upon it, based on the ACL, must fail.
Area Ten disputed that the implied term of the SEO Agreement that Area Ten services would comply “with all applicable laws and regulations in Australia” did not advance SmartChannel’s claim, in law or fact. It was submitted [31] to be relevant that the SEO Agreement provided that Area Ten would supply services “in accordance with a contract with the aim of increasing the organic traffic to (SmartChannel’s) website and where revenue resulting from the provision of such services was to be shared”. Area Ten disputed SmartChannel’s contention that its provision of programmatic content for publication by SmartChannel on its website caused it to infringe a trade mark of a competitor, and that the implied term of the SEO Agreement was thereby breached. That was submitted [34] to be “well outside the scope of the implied term that is pleaded”. It has not been established that any competitor’s trade mark was infringed.
It was submitted [35] that the “implied term said to have been breached amounts to a very specific obligation on the part of (Area Ten), one that cannot be said to be so obvious that it goes without saying” (BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 155; [2022] HCA 39).
It was further submitted [36] that the term contended for by SmartChannel would “shift responsibility under intellectual property law for content from the publisher to the creator, in a way that ordinarily one might expect the parties to expressly address”. That was submitted to have not been necessary to give business efficacy to the SEO Agreement. Deane J’s statement in Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, with respect to implied terms “necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case” was relied on in support of that contention.
Area Ten submitted [37], and the Court accepts, that the evidence did not establish that any services provided by it did not comply with any applicable laws and regulations of Australia, and that SmartChannel’s assertion that Area Ten’s services led to SmartChannel, “as the publisher of the website may have led to a trade mark infringement on its part”. The reference to “may” is appropriate.
Area Ten disputed that the asserted implied term had not been breached for a variety of reasons which have substance:

It was thus submitted [63] that SmartChannel was effectively seeking to take advantage of its own conduct in permitting content to be published that risked complaints from competitors to terminate the contract. The evidence does not establish that complaints from competitors, only one of which was prior to 24 March 2023, entitled SmartChannel to terminate the SEO Agreement.
Area Ten submitted [64] that SmartChannel’s email of 23 March was ineffective as notice to terminate the Agreement. Area Ten sought to distinguish an email to the effect that SmartChannel could not continue the arrangement with Area Ten as opposed to stating that the arrangement was being brought to an end by reason of breach. The authorities relied on by SmartChannel are compelling. At a time when the parties were communicating directly with each other, a reasonable interpretation of SmartChannel’s email was that it was purporting to terminate its agreement with Area Ten. The issue requiring determination is whether SmartChannel was entitled to terminate the SEO Agreement.
Area Ten disputed that the evidence established that it had failed to provide services in accordance with the SEO Agreement, or breached the manual copywriting provisions of the Agreement on the various bases identified in its submissions [72]-[94]. Area Ten submitted that, even if, contrary to its contentions, it was found to have been in breach of the SEO Agreement or the ACL, SmartChannel has not proved that it suffered loss. For the reasons recorded below, the Court is not persuaded that SmartChannel has established on the balance of probabilities that it suffered loss or damage as a result of any alleged breach of the SEO Agreement or of the ACL.
With respect to SmartChannel’s claim pursuant to s 236 of the ACL, it was submitted [97] that the measure of damages potentially recoverable by SmartChannel is the extent to which it is left “worse off” by reference to the “actual” loss suffered as a result of misleading conduct (Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69).
Area Ten submitted that SmartChannel had not demonstrated any causal connection between any loss which it may have suffered during the period covered by the SEO Agreement as a result of any misleading or deceptive conduct on the part of Area Ten (Brown v Jam Factory Pty Ltd (1981) 35 ALR 79; [1981] FCA 35; Henville v Walker (2001) 206 CLR 459; [2001] HCA 52).
For the reasons advanced at [103]-[106], Area Ten submitted that there was no basis for the relief sought by SmartChannel in sections 237(1) and 243(a) of the ACL, the terms of which Counsel referred to. It was submitted [107] that in granting relief under s 243 of the ACL, the Court is not constrained by limitations under the general law of a party’s right to rescind for breach of contract or misrepresentation (Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) (1988) 39 FCR 546; [1988] FCA 40). It was further submitted to be necessary to consider whether restitutio in integrum was actually possible (Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274; [1988] FCA 413).
It was ultimately submitted [109] that an order for restitutio in integrum ought not be made in this case, having regard to the benefits which SmartChannel received throughout the terms of the SEO Agreement, particularly the increase in traffic that was achieved in the period up to the end of December 2023, and that restitutionary relief pursuant to s 243 was not realistically available to SmartChannel. Restitutionary relief by the repayment of fees received by Area Ten is possible. The issue is whether SmartChannel establishes an entitlement to that relief.
Under the heading “Infringement of intellectual property rights” SmartChannel referred to four allegations of breach of intellectual property of SmartChannel’s competitors. These occurred on 18 January 2023, 31 May 2023, 6 July 2023 and 14 November 2023. It has not been established that any of the actions threatened by the entities who made those complaints was pursued, or resulted in SmartChannel incurring loss. If not before, by 31 May 2023 SmartChannel was able to exercise complete control over the contents of its website. The Court’s findings with respect to the disputed issue of responsibility for the content which ultimately appeared on the Outbax website during the operation of the SEO Agreement are relevant to the January 2023 alleged breaches.
SmartChannel’s reliance [55] on a “significant number of infringing articles” being on the Outbax website prior to 24 March 2023 is not supported either by the asserted quantum of such articles, or evidence establishing the alleged infringements. SmartChannel asserted that Area Ten’s “attempts to suggest that SmartChannel either invited, or acquiesced in, the publication of IP infringing content should be rejected” in reliance [56] on a number of matters referred to by Mr Sedighi. Pivotal to those contentions is the assertion that SmartChannel relied on Area Ten’s “expertise and assumed that it was Area Ten’s responsibility to ensure that content it provided did not infringe intellectual property rights”. The evidence does not establish that Area Ten knew, or ought to have known of the extent to which SmartChannel’s website did or might infringe the intellectual property rights of others. SmartChannel’s knowledge of its own products, and inferentially the products of its competitors, was significantly superior to that of Area Ten. It had its own SEO copywriter, and other persons involved in the preparation and maintenance of the content of the Outbax website. SmartChannel was ultimately responsible for any content which infringed competitors’ intellectual property rights.
The contention that it was “unrealistic” for Area Ten to assert that SmartChannel was required to review every article does not assist its case. It has not been established that it was “unrealistic” for SmartChannel to have done that, or that, on any view of the SEO Agreement, Area Ten was required to review every article to avoid infringements of competitors IP rights. SmartChannel referred [57] to Mr Sedighi’s evidence with respect to whether “competitors should be targeted”. It was submitted [58] that Mr Sedighi was proposing the use of keywords referring to categories of products sold by competitors, not the use of competitors’ names. It has not been established that Area Ten was ultimately responsible for Outbax website content which used competitors’ names or product descriptions. On balance, the evidence establishes that SmartChannel was better placed to avoid such occurrences than was Area Ten.
With respect to paragraph [59] of SmartChannel’s contentions, not having been successfully sued for intellectual property infringement, if entitled to damages or compensation, no part of SmartChannel’s entitlement could be referrable to any intellectual property infringement of competitors. It was submitted against Area Ten [59] that the fact that Area Ten recognised the need to promptly remove the content that caused the DMCA notice was damaging to Area Ten’s case. If Area Ten was wholly or partially responsible for potentially infringing content, its actions mitigated any likely loss for SmartChannel. None resulted in any event.
In relation to the termination of the SEO Agreement, SmartChannel at [62] set out the principles with respect to termination for breach of an intermediate term of a contract by reference to Professor Carter’s asserted distillation of the principles as:

It was submitted, and the Court accepts, that the fact that a party does not expressly refer to the grounds on which termination is purported does not prevent that party from relying on available grounds for termination which existed at the time (Shepperd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21). As recorded above, if SmartChannel was entitled to terminate the SEO Agreement, its email of 24 March 2023 did so.
SmartChannel submitted that there were three breaches of the SEO Agreement by Area Ten which were sufficiently serious to entitle SmartChannel to terminate the Agreement on 24 March 2023. The first was the asserted failure to provide manually written articles. SmartChannel relied on the inclusion in the SEO Agreement of a provision with respect to “SEO copywriting” which had not been part of the previous SEO Agreement. It was submitted [66] that Mr Tang’s evidence demonstrated the importance of manually prepared articles and the significant impact they can have in improving the performance of a website. It was submitted, correctly, that in March 2023 “the parties’ relationship was deteriorating”. It was further submitted, again correctly, that in late March 2023 Mr Tang was aware that SmartChannel was losing confidence in Area Ten. It was submitted that in the face of declining performance of the Outbax website, on 23 March 2023, Mr Tang put forward a proposal to “maximise chances of recovery” on the website. It was submitted to be “telling of the importance of custom content that Mr Tang proposed this course when faced with the need to quickly generate improvements in the performance of the Outbax website. It was a course of action that had worked well with other clients in the past and is consistent with guidance published by Area Ten on its website”.
SmartChannel reiterated its contention [67] that Area Ten’s failure to provide manually prepared articles rendered the SEO Agreement substantially different and entitled SmartChannel to terminate. That contention assumes that SmartChannel’s construction of the SEO Agreement is accepted.
The second alleged breach relied on was Area Ten’s provision of low quality PCE articles, which were submitted to reduce the authority of the Outbax site. It was submitted that “The pursuit of enhanced authority was a core objective” of the SEO Agreement, and the “fact that Area Ten provided services that by their nature were authority destructive” provided SmartChannel with grounds to terminate the SEO Agreement. The Court’s findings with respect to the expert evidence recorded earlier create substantial obstacles to the acceptance of that contention.
The third breach relied on was Area Ten’s alleged exposure of SmartChannel to liability from multiple competitors for intellectual property infringement and contraventions of the ACL. That was submitted to be a sufficiently serious breach to entitle SmartChannel to terminate the SEO Agreement. The obvious difficulties SmartChannel have with that contention is that the first allegation of intellectual property infringement occurred on 18 January 2023, and was not referred to in Mr Sedighi’s email purporting to terminate the SEO Agreement, and no such liability has been shown to have materialised.
In relation to damages, SmartChannel submitted [74], in reliance on the evidence of Mr Divaratne, that SmartChannel’s lost revenue in the period 26 June 2023 to 26 December 2023 was $650,000 to $750,000. The Court has earlier recorded why it does not find that claim proved. The evidence establishes that, from March 2023 at the latest, SmartChannel had the capacity to remove any content which Area Ten had prepared from the Outbax website. Well prior to that time SmartChannel had employees or agents charged with maintaining the Outbax website and determining the content which appeared on it upon which the authority of the website was dependent. Whilst SmartChannel may have lost revenue of that magnitude, the evidence does not establish on the balance of probabilities that this was wholly or largely referable to anything done or not done by Area Ten.
The Court has earlier made findings with respect to the experts’ disagreements. The Court cannot accept on the evidence that, on the balance of probabilities, any low quality PCE generated articles provided by Area Ten caused or predominantly caused SmartChannel’s asserted revenue loss. It is significant in this context that the evidence does not establish that, whatever the quality of content provided by Area Ten, it does not appear to have degenerated significantly during the course of the SEO Agreement. As submitted by Area Ten, it was not until November 2022, 21 months after the SEO Agreement commenced operation, that SmartChannel raised any issue about any aspect of Area Ten’s performance pursuant to the Agreement. The evidence does not establish that the quality of the content provided by Area Ten declined significantly during that time.
It was further submitted [75] that, if Area Ten is found to have breached the SEO Agreement by failing to provide manually copywritten articles, SmartChannel seeks damages calculated at the rate of $255 per article that was not provided, the method of calculating which was explained. It was conceded [76] that there was no evidence before the Court that would permit calculation of an award of damages with respect to the provision of intellectual property infringing content.
In support of its claims, SmartChannel relied on precontractual representations [77]-[81], submitting that it was “more likely than not that Mr Tang made the Google compliance representation” prior to the making of the SEO Agreement. A meeting on 14 December 2020 in which Mr Tang said words to the effect that Area Ten was committed to using SEO best practices was relied upon in that regard, it being submitted that remaining compliant with Google’s guidelines was a non-negotiable requirement of SEO best practices.
In support of its ACL claim, SmartChannel submitted that Area Ten’s Google compliance representation was misleading for two reasons. The first [84] was that Area Ten’s provision of low quality PCE generated articles did not comply with the guidance provided by Google in its “helpful content update” published in August 2022. It was submitted that Mr Gudipudi “seamlessly expressly accepted this” (Transcript, p.49, line 29-33). It was submitted that in any event, as both experts agreed, as they did, that the PCE generated articles were low quality, it was submitted that the content did not meet the guidance provided by Google in the update. That was submitted to have been particularly significant as Google’s update warned that its systems automatically identified content that seemed to have little value, low added value or was otherwise not particularly helpful to those doing searches. The evidence does not establish that Google’s systems demoted SmartChannel’s website on that basis.
SmartChannel submitted [85] that Area Ten did not have reasonable grounds for making the representation in the light of the low quality content that would be produced by its PCE generated articles (s 4 ACL).
SmartChannel submitted [5] that payment of two further invoices after receiving the DMCA notice did not disentitle it from terminating the SEO Agreement on 24 March 2023 and, in any event, it “retained the right to terminate on any other grounds available to it”. SmartChannel admitted that it removed Area Ten’s access to Google Analytics in May 2023, but submitted that it was entitled to do so having validly terminated the SEO Agreement on 24 March 2023. SmartChannel submitted [7] that it was significant that none of Area Ten’s invoices included an amount for SEO (manually prepared articles) copywriting services, as opposed to PCE generated articles. That was submitted to be because Area Ten “never provided it with manually prepared articles”. Why, if it was obliged to do so, SmartChannel did not complain about that until 24 March 2023 has not been adequately explained. As recorded earlier, whether Area Ten was obliged under the SEO Agreement to provide such articles remains for determination on the construction of the SEO Agreement.
In relation to whether Mr Tang made the Google compliance representation prior to the making of the SEO Agreement, SmartChannel submitted [9] that although Mr Sedighi did not sign the Agreement, it was “clear that he was instrumental in negotiating and entering into the agreement”. That may or may not be so, but Area Ten’s submissions [17] does not effectively answer Area Ten’s contentions [17]-[19].
It was submitted [10], and the Court accepts that reliance on a misrepresentation can be inferred (Lin v Zheng [2023] NSWCA 174) and that, if a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation (Gould v Vaggelas (1985) 154 CLR 385; [1985] HCA 85). There are two parts to this contention. The first is whether the alleged misrepresentation is proved. The second is whether SmartChannel establishes that it was relied upon. The Court is not persuaded that Mr Tang made the representations alleged by SmartChannel, the evidence does not establish that SmartChannel relied on it when it made the SEO Agreement.
Mr Feng Wei, the director who executed the SEO on behalf of SmartChannel has not given evidence in these proceedings. The unexplained failure of Mr Wei to give evidence entitles the Court to infer that his evidence would not have assisted SmartChannel’s case, and to more readily accept the evidence of Mr Tang with respect to the precontractual representations alleged by SmartChannel (Manly Council and Anor v Byrne [2004] NSWCA 123).
It was submitted [11] in reliance upon meetings in December 2020, and particularly in reliance upon the February 2021 emails referred to earlier, that Area Ten represented, and SmartChannel relied upon the representation that Area Ten would comply with the Google updates representation. By the time of the August 2022 Google update, the SEO Agreement had been in effect without complaint by SmartChannel for just short of 18 months. In purporting to terminate the SEO Agreement on 24 March 2023, SmartChannel did not assert that any breach of a representation of that kind was relied upon in support of terminating the SEO Agreement. the evidence does not establish that it could have successfully done so.
SmartChannel submitted [14]-[17] that Area Ten’s obligation was to provide PCE generated articles that, when published, would not cause SmartChannel to contravene the ACL and/or the Trade Marks Act. Apart from complaints, which SmartChannel acknowledges were not followed through with any action which caused it financial or other loss, SmartChannel has not established that Area Ten caused it to contravene the ACL or the Trade Marks Act. The highest SmartChannel’s case can be is that it may, but has not been established, have contravened those laws. The issue of causality is resolved by the Court’s findings with respect to the extent to which either or both parties was or were responsible for the content which made its way onto the Outbax website. Determining that issue also impacts on determining whether SmartChannel “acquiesced in or invited the publication of the IP infringing content” [18].
It was submitted [21] that the relevant IP breach not having been discovered at the time, provided grounds for SmartChannel terminating the SEO Agreement on that basis. It was submitted [23], and the Court accepts, that, particularly in the present circumstances, a “fairly informal” notice of purported termination of an agreement could be effective, provided that the party giving such notice was entitled to terminate the agreement. SmartChannel reiterated [24]-[25] its earlier contentions that the SEO Agreement required Area Ten to deliver 10 pages of SEO copy a month and, by failing to do so, Area Ten’s breach of the Agreement entitled SmartChannel to terminate the SEO Agreement.
SmartChannel disputed [26] that Area Ten’s reliance on the words of the SEO Agreement “the content to target will be based on mutual written agreement” was sound. SmartChannel reiterated [29] its asserted entitlement to damages and compensation pursuant to s 237 and s 243 of the ACL, and that the SEO Agreement was void ab initio or void from 24 March 2023 “lest there be any doubt that SmartChannel was required to continue paying Area Ten under that Agreement”.
It was ultimately submitted [32] under the heading “Area Ten not entitled to payment in any event” that, if SmartChannel did not succeed on its Cross-Claim or Defence, it sought a finding that Area Ten was not entitled to payment of any invoices or damages referable to the period from March 24 2023 onwards, on the basis that there was no cogent evidence that Area Ten was actually providing the SEO services to SmartChannel after 24 March 2023. That begs the question of whether SmartChannel was entitled to terminate the agreement on 24 March 2023. If it was not, then the terms of the agreement remained in force and effect. Unless, between 24 March 2023 and 3 March 2024, Area Ten breached the Agreement giving rise to an entitlement to SmartChannel to terminate, it continued until 3 March 2024. If SmartChannel validly terminated the Agreement in March 2023, then Area Ten was not entitled to be paid pursuant to the Agreement after that date, and may have been disentitled to retain the payments which it had received.
In submissions of 23 September 2025, Counsel for Area Ten reiterated the thrust of his earlier submissions, and in particular, the contention that there was no minimum manual copywriting requirement under the SEO Agreement which, on its proper construction, provided that manual copywriting was one of a number of methods that were capable of being deployed in support of the stated object of the Agreement. It was submitted that manual content had been provided “consistently, without complaint, until SmartChannel employed its own full-time SEO copywriter in late 2022” (Exhibits P2 and P3).
There was submitted to have been no breach by Area Ten arising out of the delivery of manual content, or, if there was, any such breach was not sufficiently grave to entitle SmartChannel to terminate the Agreement. It was submitted, accurately, that the objective of the SEO Agreement was to grow organic traffic through the Outbax website. It was submitted that the expert evidence established that there was an increase in organic traffic throughout the term of the Agreement. The Agreement was submitted to not include any specific obligation on the part of the Plaintiff to grow authority and that SmartChannel had failed to identify a “yardstick or measure whereby authority can be measured”.
Although it was conceded that there was an implied term that the service would comply with applicable laws, the scope and content of that term did not extend to making the Plaintiff responsible for the content that was published by SmartChannel on the Outbax website, SmartChannel being submitted to have remained in control of the website, with the power to remove any content. Area Ten disputed that any failure to comply with Google advice did not constitute failure to comply with an applicable law.
In relation to manual content, Area Ten submitted that SmartChannel’s construction of the SEO Agreement failed to recognise that the chapeau to the six optimisation initiatives listed (Court Book 142) as “template language”. Area Ten reiterated [3] its earlier submission that the language adopted in the SEO Agreement was that programs designed to build authority involve “initiatives that may include but not limited” to the six identified points which followed, the last of which refers to SEO copywriting. It was submitted [4] that SmartChannel could not rely on negotiations prior to the SEO Agreement in relation to its construction to the extent that so doing was inconsistent with the terms of the Agreement. Area Ten reiterated its earlier submissions with respect to “the SEO copywriting dot point”. It was further reiterated [5] that the conduct of the parties “would also suggest that they viewed the copywriting tool in this way, employing manual content as the need arose”. As in its primary submissions, Area Ten relied significantly on the absence of complaint about the quality of the services provided by it until November 2022 when SmartChannel “sought to extricate itself from the agreement” [6].
Area Ten submitted [7] that the finding sought by SmartChannel, that the SEO Agreement contained a term requiring it to provide SEO services that built the authority of the Outbax website did not find expression in SmartChannel’s Defence or Amended Cross-Claim, which in substance alleged a failure to “develop SEO campaign sites to pass targeted authority to the client site”. There was submitted to have been no issue that Area Ten developed SEO campaign sites to pass targeted authority to the client site, but that was submitted to have been directed to facilitating the growth of organic traffic.
A “fundamental problem with the authority claim” was submitted [8] to be that it was inconsistent with what the parties expressly agreed on page 6 of the SEO Agreement, namely that the “objective of this program is to grow organic traffic which in turn drives incremental revenue”. It was submitted [9] that the objective of the contract was not to build authority but rather to grow organic traffic, a contention supported by the absence of reference to “authority” in the four lines where the objective was spelt out [10].
Area Ten submitted [11] that the language of the contract went to the “heart of this defence” and precluded the Court from finding the term asserted by SmartChannel. Importantly, Area Ten submitted [12] that there was “no guarantee that growth, whether it be growth in authority or organic traffic, would reach any particular levels” and that, whilst growth of organic traffic was the aim, there were no performance yardsticks against which it could be measured. It was submitted to be relevant in this context that the SEO Agreement was a revenue sharing agreement, rather than a fee for service or service delivery, as the previous agreement provided. It was submitted, correctly, that it was “in the interests of Area Ten as much as it was for SmartChannel for organic growth to be the target”. Area Ten reiterated [13] its contention that the contract contained no provision with respect to measuring authority. Area Ten relied [14] on the fact that traffic “grew” over the term of the SEO Agreement.
Area Ten reiterated that it had not breached the ACL, particularly relying [16] on SmartChannel having at all times been the publisher of the Outbax website and responsible for what was published. Reliance was placed on SmartChannel having had at all times a website management team and, as Mr Sedighi conceded, the ability to remove any content at any time. Area Ten relied on the fact that, until January 2024 content provided by Area Ten continued to be published on the Outbax website, some of it continuing to be published at the time of the hearing (Exhibit P3). It was thus submitted that, contrary to its case before the Court, SmartChannel was “more than happy to continue to adopt the Plaintiff’s programmatic content”.
Area Ten submitted that SmartChannel failed to establish its damages claim for a variety of reasons: [21] that SmartChannel sought to rely on comparisons between revenue achieved between December 2022 and June 2023, with the period June 2023 to December 2023. It was submitted [22] that if revenue dropped from the first to the second period, it could not be referable to Area Ten’s SEO content, as that content was responsible for revenue derived in the comparison period. More significantly Area Ten submitted [23] that SmartChannel did not seek to prove its losses by pointing to revenue achieved in a period in which there was no programmatic content in order to support its contention that it was the programmatic content which caused its revenue to drop, the comparison assertedly showing “what a good job SmartChannel was doing up to June 2023” [24].
Area Ten submitted [27] that the evidence did not establish that it was the PCE content that led to the asserted drop in revenue, the PCE content having been on the website since 2021, and remaining there until January 2024 and beyond. It was further submitted [28] that the loss in revenue occurred after, on SmartChannel’s case, it terminated the Agreement and took away Area Ten’s access to the Google Analytics Control Panel in April 2023, as it undoubtedly did. Reliance was placed on Mr Divaratne’s concession that, seeking to provide SEO services required access to the Control Panel. It also occurred after, as Mr Sedighi asserted in his evidence, he gave instructions to remove the programmatic content. His evidence in relation to the extent to which that occurred was submitted to be “far from clear”. The Court finds that Mr Sedighi’s evidence was less than clear. Whatever the case, Area Ten relied on the fact that there was programmatic content on the Outbax website until January 2024 and beyond.
Area Ten submitted [29], correctly, that SmartChannel’s complaint about the absence of SEO monitoring from June to December 2023 could not be accepted as from early April 2023 SmartChannel had excluded Area Ten from access to the Google Analytics Services.
In relation to the manual content damages claim, it was submitted [31] that the price for the provision of manual content services was not a “natural result” of any asserted failure by Area Ten to provide such services and that, in any event, SmartChannel has not established that it had incurred any loss as a result.

Until its Notice of Motion of 9 September 2025, SmartChannel did not assert that the sums claimed by Area Ten were contrary to the provisions of the SEO Agreement, submitting that, on either of the grounds identified above, Area Ten was not entitled to be paid those monies. For the reasons recorded earlier, the Court refuses SmartChannel leave to re-open its case to contend that, if Area Ten was entitled to be paid, it was not entitled to be paid the sums identified in each of its monthly invoices.
The Court has earlier identified the submissions of the parties with respect to the second ground on which SmartChannel relies – the implied term with respect to applicable laws and regulations and rules, terms, conditions and guidelines of Google for SEO services. For the reasons recorded earlier, accepting that it was an implied term of the SEO Agreement that Area Ten would not breach applicable laws and regulations in Australia, it has not been established that Area Ten did so. At its highest, Area Ten may have been party to material which on four occasions, three of them after SmartChannel purported to terminate the SEO Agreement, may have breached the copyright of competitors of SmartChannel. As recorded earlier, and conceded by SmartChannel, none of the four complaints which led to the Google takedown notices resulted in any liability of SmartChannel, or resulted in it incurring any proven loss. Accordingly, even if, which has not been established, Area Ten was in breach of the implied term with respect to applicable laws and regulations, that would not have entitled SmartChannel to terminate the SEO Agreement on 24 March 2023. Three of the takedown notices having occurred after SmartChannel purported to terminate the SEO Agreement, they could not have been relied upon for that purpose in any event. Nor could they have been relied upon subsequently. At all material times, SmartChannel was more able than Area Ten to avoid its website infringing competitors’ intellectual property rights.
The evidence does not establish that Area Ten breached any “rules, terms, conditions and guidelines” of Google for SEO services. At its highest, the evidence establishes that Area Ten may not have implemented Google recommendations or followed Google guidance. Mr Tang’s explanations in relation to those matters cannot be rejected. The evidence does not establish that any act or omission by Area Ten with respect to Google terms, conditions or guidelines constituted a breach of Google “rules”, or, if it did, had adverse implications for SmartChannel. Four Google takedown notices issued. Appropriate action was taken in response to them and SmartChannel has not demonstrated that it incurred any pecuniary, reputational or other damage as a result of their issuing. Even if, contrary to the Court’s findings, Area Ten did breach the implied condition relied on by SmartChannel on 18 January 2023, that did not entitle SmartChannel to terminate the SEO agreement on 24 March 2023. It remains necessary to determine the first ground of SmartChannel’s Defence.
It is necessary to determine what services Area Ten was obliged to provide pursuant to the SEO Agreement. The Court does not find the terms of the earlier SEO Agreement to be instructive for that purpose. As submitted on behalf of Area Ten, the SEO Agreement which gives rise to these proceedings, and the earlier SEO Agreement had materially different objects and scope. The latter was a “revenue share” Agreement. The earlier Agreement was in the nature of a fee for service Agreement. The principles of contractual construction identified by the parties in their respective submissions inform the Court’s determination of this issue.
The SEO Agreement was a commercial contract, the parties to which were neither naïve nor inexperienced in relation to its subject matter. Area Ten carried on business as an SEO content provider holding itself out as having 18 years expertise in search (Search Engine Optimisation plus PPC) and 9 years’ experience in Conversion Rate Optimisation and “experience working across clients that include” more than 20 large corporations (Court Book page 138). Other than to a limited extent, SmartChannel conducted its sales operations entirely through the internet, having no retail outlets of its own. SmartChannel has not established that it was inexperienced in the world of the internet, how Google worked, or how its own website worked.
The parties undoubtedly contracted at arm’s length. With no disrespect to the parties, the SEO Agreement appears to be a combination of general propositions (Court Book p.139-140) which record that “some of the ongoing optimisation activities defined above may not be relevant for specific clients and need to be validated upon completion of setup phase”. There follow (Court Book p.141) other general information with respect to “average project timeframes”. The operative part of the agreement (Court Book p.142-143) records “Proposal – objective – the objective of this program is to grow Organic traffic which in turn drives incremental revenue. The more incremental revenue that gets generated from SEO initiatives the more that can be invested to fuel further growth. The proposed revenue share model ensures that growth helps fuel further growth”. That statement of the objective of the SEO Agreement does not materially assist either party. It is readily apparent, and the evidence does not provide any impediment to finding that both parties considered that, the more “traffic” which the Outbax website experienced, the greater the chances of that resulting in “incremental revenue” (sales of SmartChannel’s products), the fruits of which would be shared in accordance with the revenue share provisions of the Agreement.
The operative provisions of the Agreement appear under the heading “Ongoing optimisation”. Although recorded earlier in these reasons, it is useful to reiterate them. They provide:

The contract period was for 24 months initially, with “12 month rolling thereafter”. It was agreed that, after 24 months “cancellation can be executed on mutual written agreement at least 30 days before the end of a given contract period otherwise it will roll into another 12 month term”.
Through its Director, Feng Wei, SmartChannel executed the Agreement on 2 March 2021. Area Ten executed the Agreement through its Director on 3 March 2021. The initial period of the contract was thus from 3 March 2021 to 3 March 2023. SmartChannel purported to terminate the Agreement on 24 March 2023 in reliance on Area Ten’s asserted breaches of the Agreement. Area Ten disputes that SmartChannel was entitled to do so and submits that, the cancellation provisions of the Agreement not having been enlivened on or before 3 March 2023, the Agreement rolled over for 12 months.
It is significant in this case to distinguish between what the evidence objectively reveals, through the emails which are in evidence, and fails to reveal of the parties’ understanding and expectations with respect to the SEO Agreement between the time it was made and 22 November 2022. With respect to each of Mr Tang and Mr Sedighi, neither of whose credibility was seriously damaged, their evidence, save to the extent that it was previously evidenced by emails, is, understandably, in the nature of a reconstruction of events which is favourable to their respective cases, and does not impact on the interpretation of the operative provisions of the SEO agreement.
In interpreting the SEO Agreement, the Court focuses on the terms of the Agreement, and, in view of its terms, the conduct of the parties between 3 March 2021 and 22 November 2022. The terms of the SEO agreement are, in this case, not necessarily the starting and finishing points for its interpretation. To the extent that the SEO agreement is ambiguous, as recorded earlier in these reasons, the parties’ post March 2021 conduct is more consistent with Area Ten’s interpretation of the disputed provisions of the SEO agreement than with SmartChannel’s. The Court also has regard to the grounds on which SmartChannel purported to terminate the SEO Agreement on 24 March 2023.
The operative provisions of the SEO Agreement are somewhat uncertain. The use in the chapeau to the “ongoing optimisation” of the words “may include” suggests that, unless the context in which those words find expression suggests otherwise, provision of the services identified in the dot points appearing below by Area Ten was discretionary (Wood v Williams (1955) 92 CLR 496; [1955] HCA 4). Read in context, the dot points recorded the services which “may” have been provided by Area Ten in order to optimise the prospects of the objective of the SEO Agreement being realised. That interpretation is supported by the provisions of the agreement requiring mutual written agreement with respect to the provision of such services. The Agreement clearly anticipated that Area Ten could use its proprietary programmatic content engine (PCE) which it clearly did.
On balance, the provision with respect to “SEO copywriting” meant that Area Ten may include such services but did not oblige it to do so. The wording “up to 10 pages” is significant in that regard, as are the words “content to target will be based on mutual written agreement”. To the extent that there is uncertainty, how the parties conducted themselves after the SEO Agreement was made militates against accepting SmartChannel’s contention that Area Ten was obliged to provide “up to 10 pages of SEO copy a month” as part of its contractual obligations. Notwithstanding that, as submitted by SmartChannel, it received less than half the pages of SEO copy which it asserted it was entitled to under the Agreement, prior to November 2022 SmartChannel made no complaint about the absence of provision of such services. As at 7 March 2023, Mr Sedighi was unaware whether any had been provided. The evidence establishes, the PCE services provided by Area Ten were “low quality”. To the extent that SmartChannel asserts that the quality was so low as to constitute a failure to perform the SEO Agreement, the evidence does not establish that to be the case. The evidence of the experts does not establish the extent to which low quality PCE material was “par for the course”, on either an industry basis or by reference to the material posted by SmartChannel on its Outbax website. If, as SmartChannel asserts, it was entitled to up to 10 pages of SEO copy a month for no charge, it is improbable that it would not have raised that with Area Ten at some time prior to 22 November 2022, or only have done so on 24 March 2023 after making its inquiry on 7 March 2023.
On 22 November 2022 SmartChannel emailed Mr Maggs and said “I would just like to follow up with our request regarding your analysis of why traffic is significantly higher but the conversion rates are either lower or stagnant”. Mr Sedighi was not the author of that email. On 8 December 2022 Mr Tang and Mr Sedighi had a meeting, during which Mr Sedighi expressed concern about how the programmatic content provided by Area Ten was performing. Between January and March 2023 a number of emails passed between the parties. Prior to that date, as the evidence reveals, SmartChannel had received invoices from Area Ten identifying its charges, and the basis of them, none of which SmartChannel questioned.
On 19 January 2023 Mr Sedighi emailed Mr Maggs of Area (Court Book p. 483-484) asking for “urgent update/analysis on why we had a big drop” in “conversions” from traffic on the Outbax website. Mr Sedighi reiterated that in October/November 2022 SmartChannel had “voiced concerns … on the value of PCE on our website since there is a lot of traffic but only a few conversions”. He further stated that SmartChannel’s “website rank and traffic dropped a lot after” Google updates issued in December 2022 and wished to “urgently discuss via email any analysis on where this drop came from”. Mr Maggs emailed Mr Sedighi on 27 January 2023 (Court Book p.409) and said “So here’s our strategy going forward for programmatic. Acknowledging the poor conversion rate we believe the problem is the landing page not serving the most relevant results for the page. The solution to this depending on technical requirements, is on each page utilise your internal search to generate the list of products that way we can ensure the most relevant products are displayed for each page.” There followed a number of suggestions.
On 30 January 2023 Oliver Geluz of SmartChannel emailed Mr Maggs (Court Book p.409) asking “What pages are we going to create for this? Asking since we want to test first if current research page gives relevant search result also with few products, anything with generator might give the same result”. Mr Sedighi also emailed Mr Maggs on 30 January 2023 (Court Book p.410) and said “Further to Oliver’s question, let’s focus on the landing page improvement only so that we can measure the conversion rate improvement without other variables”. Mr Maggs replied (Court Book p.410) to Mr Sedighi and Mr Geluz “So we just need to update the template on all existing program pages” an example of which was given and “It would be a standard category page but showing results from” and Outbax’s website reference was given “Does that make sense”.
On 2 February 2023 (Court Book p.411) Mr Maggs emailed Mr Sedighi and Mr Geluz and said “Just following up to see if you had any questions regarding the landing pages?”. Mr Geluz replied nine minutes later “All good with the new LP requirements. We are just finishing some task. Then we will start on this update. We also checking if we should implement (a nominated webpage) first being doing LP with search result. Let us know if you have questions.”
On 21 February 2023 Mr Maggs emailed Ms Mitzki Ermita of SmartChannel (Court Book p.143) with respect to “potentially creating some new pages” details of which followed and stating “We’d be happy to write the content can you confirm if they are all relevant”. Mitzki Ermita replied shortly thereafter stating that “These 3 are not relevant to our batteries” and providing more information about batteries and asking “Let me know if you have any questions”. Mr Maggs replied “Awesome thanks Mitzki!” and attached two SmartChannel Outbax web pages.
On 7 March 2023 Mr Sedighi emailed Mr Maggs (Court Book p.415) and said:

The last comment is surprising having regard to Mr Sedighi’s enquiry of Mr Maggs 17 days earlier. The emails between Mr Maggs and employees of SmartChannel do not support Mr Sedighi’s assertion that they had “exhausted all options to improve the performance over the past few months”. Within SmartChannel, there seems to have been a disconnect between the personnel who actually operated the website, and senior management with respect to Area Ten’s performance.
The Court is not persuaded that Area Ten was required to provide up to 10 pages of SEO copy a month, or that, particularly having regard to its post-contractual conduct, SmartChannel understood that to be the case. Whilst not determinative, the reference in the chapeau to the identification of ongoing optimisation of “may” is supportive of that interpretation. It is also relevant that the SEO copywriting provision itself concluded by saying “the content to target will be based on mutual written agreement”.
SmartChannel bears the onus of establishing the interpretation of the contract for which it contends. The Court is not persuaded that it has done so, and is satisfied that the parties understood, as evidenced by their post-contractual conduct, that Area Ten was not obliged under the Agreement to provide SEO copywriting. The absence of any suggestion between March 2021 and early 2023 that Area Ten should do so is significant. It is improbable that, if SmartChannel understood the Agreement entitled it to such copywriting, that Mr Sedighi would have made the enquiry he did of Mr Tang on 7 March 2023, or, having received Mr Tang’s response to his enquiry, not have questioned it. SmartChannel first asserted an entitlement to “10 highly quality articles per month” in Mr Sedighi’s email of 24 March 2023 purporting to terminate the SEO Agreement. Even then, Mr Sedighi was in error, having regard to the terms of the SEO copywriting provision. It is difficult to resist the conclusion that, between 7 March 2023 and 24 March 2023, SmartChannel determined that it would rely upon the copywriting provision of the SEO Agreement to support its termination.
SmartChannel’s contentions with respect to the copywriting provisions of the SEO Agreement fail. The parties would have understood the SEO Agreement to provide that, subject to mutual agreement, Area Ten may have, but was not obliged to provide up to 10 pages of SEO copy a month.

Having not been terminated on or before 3 March 2023, the rollover provisions of the Agreement remained in force until on or about 3 March 2024, unless SmartChannel was entitled to terminate the Agreement on 24 March 2023.
The Court having rejected the first basis of SmartChannel’s defence, the asserted failure to comply with applicable laws or rules, the second ground of SmartChannel’s defence requires consideration.
Although it is less than entirely clear what ground 3(a) of SmartChannel’s Defence was really asserting, it is not in doubt that Area Ten provided services. SmartChannel’s assertion that Area Ten failed to “develop SEO campaign sites to pass targeted authority to the client site” is difficult to accept having regard to the Court’s construction of the SEO Agreement, and its findings with respect to the lay and expert evidence reviewed earlier in these reasons. SmartChannel has not demonstrated that Area Ten failed to develop SEO campaign sites to pass targeted authority to the client site. SmartChannel has not established the factual basis on which that allegedly occurred. SmartChannel has not quantified any “targeted authority” which the evidence establishes Area Ten failed to pass to SmartChannel’s website.
Similar observations apply to the defence with respect to “organic link organisation”. The Court’s rejection of SmartChannel’s interpretation of the SEO copywriting provision in the SEO Agreement precludes that challenge advancing SmartChannel’s defence. Although not pleaded, inferentially SmartChannel relied on the low quality of the services provided by Area Ten in support of its asserted entitlement to terminate the SEO Agreement. Although the experts agree that the PCE content provided by Area Ten was of low quality, the evidence does not establish that the quality of Area Ten’s work declined between March 2021 and March 2023. The evidence does not establish that the quality of the services were so low as to constitute no services, or that, by reference to industry standards or other benchmarks, the services were unacceptably low, and potentially entitling SmartChannel to terminate the SEO Agreement.
The post-agreement history recorded above is supportive of inferring that, as submitted by Area Ten, when SmartChannel decided, late in 2022 or early 2023 that it no longer wished to continue the SEO Agreement, it looked for ways and finding faults with Area Ten’s services to justify terminating it which, over the previous 20 months had not been problems. Whatever the quality of Area Ten’s SEO services, the evidence does not establish that they declined materially over the course of the SEO Agreement. It may be no more than coincidental, but the evidence implies that, by the time SmartChannel was becoming disenchanted with Area Ten’s performance, it had developed a significant in house IT team with increasing responsibility for website content. Objectively, by the end of 2022, it is difficult to suggest that, with no disrespect to Area Ten, it was providing, or expected to provide services which SmartChannel by that time was largely able to provide by utilising its own website resources.
SmartChannel’s case, both with respect to its Defence and its Cross-Claim is predicated on the unproved assumption that a decline in sales flowing from its webpage was necessarily, or primarily referable to the quality, or lack of it, of SEO services provided by Area Ten. It is unsurprising that SmartChannel cannot make good its claim. With no disrespect to either party, and as Mr Gudipudi’s evidence suggests, there are various reasons why website traffic might not translate as sales. Viewers cannot be presumed to lack discrimination, and, although influenced by it, make purchases purely in reliance on what is seen on a website. Some viewers may have no intention of buying any of the products which they see advertised. Others may, but may ultimately choose to purchase a product from a website having viewed a number of products on a number of vendors’ websites. An undecided viewer may visit the website multiple times before buying, or not buying. A virtual window shopper might also do so. Although a possibility, the evidence does not establish as a probability that, had the PCE and/or manually written website content provided by Area Ten been of higher quality, SmartChannel’s sales would have been higher.
As submitted on behalf of SmartChannel, it is not bound by the grounds on which it purported to terminate the Agreement on 24 March 2023. The basis upon which it purported to do so however is telling. Mr Sedighi suggested that SmartChannel could not continue with “the current commercial agreement as we have exhausted all options to improve the performance over the past few months”. The evidence does not establish that any request to Area Ten to assist any difficulties which SmartChannel perceived it was having with its website traffic or sales was not addressed by Area Ten, and addressed in a timely way, to the evident satisfaction of those employees of SmartChannel who were dealing with the matter at the coalface. SmartChannel has not adduced evidence establishing what “options to improve the performance” it had undertaken over the preceding few months, much less that it had “exhausted” all such options. That claim is hard to reconcile with SmartChannel’s silence during 2022. It is true, as Mr Sedighi suggested, that SmartChannel raised “concerns” at the end of 2022, but incorrect to infer that between then and 24 March 2023 Area Ten had done nothing to seek to suggest “improvements”. The email trail identified above suggests the contrary.
Mr Sedighi refrained until 24 March 2023 from purporting to terminate the Agreement. There is no evidence that he was unaware of the “rolling” provisions of the Agreement well prior to that date. The final matter relied upon by Mr Sedighi, the “issue of the contractual agreement”, and asserted obligation of Area Ten to “write 10 high quality articles per month” having been rejected, that could not provide a basis for termination of the Agreement.
The Court finds that SmartChannel has not established that Area Ten breached a relevant provision of the SEO Agreement or, if it did, that such breach was of such seriousness as to entitle SmartChannel to terminate the Agreement. SmartChannel’s defence accordingly fails. Area Ten made efforts to address the difficulties which SmartChannel first raised in late 2022. Those efforts have not been shown to have been unreasonable, or not made genuinely. Area Ten did not repudiate the SEO Agreement.
SmartChannel’s defence having failed, Area Ten is entitled to a verdict and judgment for the $112,881.48 which was not paid in accordance with the invoices issued by it.
Having failed to establish that it was entitled to terminate the SEO Agreement, Area Ten is entitled to be paid until its expiration at the end of February 2024. During that period, in accordance with the SEO Agreement, as in earlier months, the relevant figure was $10,397.42 per month, a total of $31,192.26. As recorded earlier, that figure arose as and from April 2023 in accordance with the revenue share provisions of the SEO Agreement after SmartChannel denied Area Ten access to the Google facilities to which it was entitled and by reference to which it was to calculate fees payable by SmartChannel.

SmartChannel’s Cross-Claim asserted, correctly, that Area Ten represented that its SEO services complied with all applicable laws and regulations in Australia and all applicable rules, terms, conditions and guidelines of Google for SEO services. The Court has earlier recorded that the evidence does not establish that the services provided by Area Ten pursuant to the SEO Agreement were contrary to that representation or, that if they were, they entitled SmartChannel to terminate the SEO Agreement. SmartChannel alleged, that Area Ten represented that its SEO services had been used by a number of other entities. The evidence does not establish that they had not. Area Ten did not represent that its services would result in an increase in website traffic, or sales.
To the extent that SmartChannel relied on the representations which were capable of being relied upon in entering into the SEO Agreement, they do not advance the Cross-Claim. As the Cross-Claim pleads, the agreement between the parties was “formalised” in March 2021, in writing signed by the parties. Accepting SmartChannel’s allegation that it was an implied term of the SEO Agreement that Area Ten would comply with all applicable laws and regulations in Australia and all rules, terms, conditions and guidelines, for the reasons recorded earlier, SmartChannel has not established that Area Ten failed to do so, or that, if it did, that caused SmartChannel loss or damage, or entitled it to terminate the SEO Agreement.
The Court’s reasons for rejecting SmartChannel’s defence to Area Ten’s contract claim preclude findings of breach in the terms alleged by SmartChannel in paragraph 6 of its Amended Cross-Claim.
The representations which SmartChannel assertedly relied upon were submitted to be false, untrue, misleading or deceptive or likely to mislead or deceive on two grounds, the first being that the services breached Google rules, terms, conditions and guidelines on SEO, the second was that “at least one entity using the services of the Cross Defendant did not experience substantial increase in traffic to their website”. For the reasons recorded earlier with respect to SmartChannel’s defence of Area Ten’s contract claim, the Court does not find that the services provided by Area Ten breached Google rules, terms, conditions and guidelines. Even if they did, that has not been proved to have caused loss or damage, financial, reputational or otherwise to SmartChannel. Even if, and the Court does not understand there to be evidence capable of establishing the fact, “one entity” using Area Ten’s services did not experience substantial increase in traffic to their website, that does not advance SmartChannel’s Cross-Claim. Whilst the evidence was capable of establishing that SmartChannel’s revenue from sales through its website declined, the evidence does not establish that any decline in sales was caused, or predominantly caused by Area Ten.
In Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd [2025] NSWCA 7, the Court of Appeal held that “Whether conduct is misleading or deceptive is to be assessed objectively, having regard to the words spoken and actions taken but also, and very importantly, by reference to context.” Objectively, and viewed in the context which has been considered throughout these reasons, the Court does not find, on an objective basis, that Area Ten’s conduct was misleading or deceptive, that it in fact misled or deceived SmartChannel, or that it was reasonably likely to have done so. The history of the parties’ dealings through, particularly as they emerge from the email trail which has been considered earlier supports that finding.
In Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186; [2023] HCA 8, at [80], the High Court summarised the four steps required to determine whether s 18 of the ACL has been breached. Those principles involved:

It is not in contest that the conduct relied upon by SmartChannel was in trade or commerce. As submitted by Area Ten, SmartChannel has not identified with precision by admissible evidence, the conduct which is said to contravene s 18 of the ACL. Mr Wei, to whom the conduct was allegedly directed gave no evidence. Mr Sedighi, to whom it was not directed, gave no admissible evidence about the representations. Even if the representations relied upon had the requisite precision, as will be seen, that would not change anything.
With respect to the third matter identified by the High Court, at their highest, any precontractual representations made by Area Ten conveyed no more than Area Ten’s belief or opinion that the provision of their services would be likely to increase traffic on SmartChannel’s website and, consequently, be likely to enhance sales of products advertised for sale on the website by SmartChannel. If, which SmartChannel’s claim perhaps implies, Area Ten was representing as a fact that those things would happen, in SmartChannel’s circumstances it could not reasonably have relied upon them as representations of fact. As the Court of Appeal confirmed in CBEM Holdings Pty Ltd v Sunshine East Pty Ltd [2025] NSWCA 250, at [60] “An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, mispresents nothing” (Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; [1984] FCA 187, at [88]). That statement of principle applies to any precontractual representations made by Area Ten. SmartChannel could not reasonably have relied on any precontractual representation made by Area Ten as more than an opinion or belief, the genuineness of which has not been successfully challenged.
In Self Care, their Honours further held at [82] that “The third and fourth steps required the Court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons”. That “context” was held to include “the immediate context – relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation – and the broader context of the relevant surrounding facts and circumstances.” Their Honours observed that the “simpler” the description of the conduct that is said to be misleading or deceptive or likely to be so, the more readily whether that conduct has the requisite character can be ascertained. Reference to the findings of fact recorded throughout these reasons preclude accepting that any conduct of Area Ten breached the ACL.
As recorded earlier, SmartChannel has not proved that any conduct, whether pre or post-contractual, has caused or contributed to any loss or damage occasioned by SmartChannel. The Court has earlier considered the evidence relied upon by SmartChannel in that regard and been unable to find on the balance of probabilities that the evidence of Mr Divaratne with respect to it should be preferred to the evidence of Mr Gudipudi.
For the foregoing reasons, the Cross-Claim fails.

Area Ten Pty Limited v SmartChannel Pty Limited

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

Judgment

Material before the Court

The SEO Agreement of 3 March 2021

Counsel’s opening submissions

The Parties’ Emails

The Expert Evidence

Findings with respect to expert opinion evidence

The evidence of Mr Tang and Mr Sedighi at the hearing

The Defendant’s Notice of Motion for leave to reopen its case

Disposition of SmartChannel’s Notice of Motion

Closing submissions of Counsel for the parties

Counsel’s further written submissions

Disposition

Area Ten’s claim in contract

Whether SmartChannel was entitled to terminate the SEO Agreement on 24 March 2023

SmartChannel’s Cross-Claim

Conclusion

Costs

Orders

Parties

Legislation Cited (2)

Cases Cited (20)