Oneflare Pty Ltd v Chernih [2016] NSWSC 1271

Oneflare Pty Ltd v Chernih [2016] NSWSC 1271

Oneflare failed because the essential SEO strategy, including aggressive linkbuilding, was one Oneflare wanted and instructed after Messrs Dong and Lim understood SEO and were warned of the risks of excessive linkbuilding. Mr Chernih and later Linkbuild were retained to assist in implementing that strategy, not to assume overarching responsibility for devising a risk-free or white hat strategy. The implied contractual and common law duties were duties to use reasonable care and skill but did not, on these facts, impose a general duty to warn beyond warnings already given. No breach was established, and the claim therefore failed.

Jurisdiction
Australia
Judgment Date
13 September 2016
Procedural Posture
Equity Commercial List; Contract and Tort Claim for Damages Arising From Search Engine Optimisation Services / Principal Judgment After Hearing
Outcome
Judgment for defendants on plaintiff's claim; costs reserved.
Legal Topics
['search Engine Optimisation Services Retainer' 'implied Contractual Duty to Use Reasonable Care and Skill' 'common Law Duty of Care' 'duty to Warn' 'pure Economic Loss' 'assessment of Expert Evidence' 'causation and Damages' 'subsequent Conduct in Ascertaining Partly Oral, Partly Written Contracts']
['contract' 'tort' 'damages' 'civil Procedure'] ['search Engine Optimisation Services Retainer' 'implied Contractual Duty to Use Reasonable Care and Skill' 'common Law Duty of Care' 'duty to Warn' 'pure Economic Loss' 'assessment of Expert Evidence' 'causation and Damages' 'subsequent Conduct in Ascertaining Partly Oral, Partly Written Contracts']

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Procedural Posture

Equity Commercial List; Contract and Tort Claim for Damages Arising From Search Engine Optimisation Services / Principal Judgment After Hearing

Legal Issues

  1. 1 ["What were the terms of Oneflare's retainer of Mr Chernih and Linkbuild SEO Pty Ltd?" 'Whether Mr Chernih devised and recommended the SEO strategy that Oneflare pursued over the relevant period.' 'Whether Mr Chernih used appropriate skill and competence in formulating any SEO strategy that he recommended to Oneflare.' 'If Mr Chernih did not use appropriate skill and competence, what damage Oneflare proved.' 'Whether any contractual or common law duty included a general duty to warn of risks attaching to the SEO strategy.' 'Whether damages should include losses from the second manual penalty imposed on 21 November 2013.']

Ratio Decidendi

Oneflare failed because the essential SEO strategy, including aggressive linkbuilding, was one Oneflare wanted and instructed after Messrs Dong and Lim understood SEO and were warned of the risks of excessive linkbuilding. Mr Chernih and later Linkbuild were retained to assist in implementing that strategy, not to assume overarching responsibility for devising a risk-free or white hat strategy. The implied contractual and common law duties were duties to use reasonable care and skill but did not, on these facts, impose a general duty to warn beyond warnings already given. No breach was established, and the claim therefore failed.

Court Disposition

Judgment for defendants on plaintiff's claim; costs reserved.

Orders

  • ["Direct entry of judgment for the defendants on the plaintiff's claim." 'Reserve costs.' 'Direct the parties to exchange written submissions on costs, not exceeding 10 pages in length, together with any affidavits or other evidence in support, by 30 September 2016, and to provide copies to the Associate at the same...