Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

The appeal failed because the affidavit evidence, openings and cross-examination made clear that the truthfulness of Oneflare's directors was challenged, so there was no denial of procedural fairness; objectively construed, the instruction to pursue an "aggressive" SEO strategy included artificial or unnatural link building carrying the risk of Google penalties, which Oneflare understood; on that scope of retainer no breach of contract or duty of care was established; and the primary judge was not shown to have erred in applying a 30% discount to the alternative damages calculation.

Jurisdiction
Australia
Judgment Date
07 August 2017
Procedural Posture
Appeal Concerning Claims for Breach of Contract and Negligence Arising From an Informal and Partly Oral Contract for Search Engine Optimisation Services / Appeal From Supreme Court of New South Wales, Equity – Commercial List, [2016] NSWSC 1271
Outcome
Appeal dismissed with costs.
Legal Topics
['construction of Informal and Partly Oral Contract' 'search Engine Optimisation Services and Link Building' 'duty to Warn of Risks in Professional Services' 'browne V Dunn and Procedural Fairness in Adverse Credibility Findings' 'assessment of Damages for Hypothetical Past Loss']
['contract Law' 'negligence' 'evidence' 'damages'] ['construction of Informal and Partly Oral Contract' 'search Engine Optimisation Services and Link Building' 'duty to Warn of Risks in Professional Services' 'browne V Dunn and Procedural Fairness in Adverse Credibility Findings' 'assessment of Damages for Hypothetical Past Loss']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning Claims for Breach of Contract and Negligence Arising From an Informal and Partly Oral Contract for Search Engine Optimisation Services / Appeal From Supreme Court of New South Wales, Equity – Commercial List, [2016] NSWSC 1271

Legal Issues

  1. 1 ["Whether the primary judge denied procedural fairness by making adverse dishonesty findings against Oneflare's directors." 'Whether Oneflare\'s instruction to pursue an "aggressive" SEO strategy included the creation or use of unnatural links contrary to Google Webmaster Guidelines.' 'Whether the primary judge erred in finding no breach of contract or duty of care by the respondents.' "Whether the primary judge erred in applying a 30% discount to Oneflare's low estimates of loss."]

Ratio Decidendi

The appeal failed because the affidavit evidence, openings and cross-examination made clear that the truthfulness of Oneflare's directors was challenged, so there was no denial of procedural fairness; objectively construed, the instruction to pursue an "aggressive" SEO strategy included artificial or unnatural link building carrying the risk of Google penalties, which Oneflare understood; on that scope of retainer no breach of contract or duty of care was established; and the primary judge was not shown to have erred in applying a 30% discount to the alternative damages calculation.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']