Nick Cavern is a high profile and quite successful programmer. More precisely, he is a person who creates apps for use in commercial businesses. He works out of a single room studio office in a converted warehouse in Chippendale. He gets most of his work through 'word-of-mouth' recommendations from other businesses in the area, so his reputation is important to him. He is known for his business logo, which is a red right hand pointing downwards. He is also known for always meeting people face to face before working with them.

Nick does not like dealing with the mundane and practical details of running a business, so he contracts those tasks out to someone else. His previous service provider is no longer available, so he needs to find someone new. After some searching, Nick finds a possible provider - Bad Seedlings Business Services Pty Ltd ('Bad Seedlings'). Nick arranges a meeting with the owner, Kylie, at Bad Seedlings' offices.

Nick says, 'I need someone who will cover all of my back office needs - internet, IT support, utilities, banking, CRM, socials. I'm great at what I do but I don't like spending time on these other boring but necessary details.'

Kylie replies, 'Yes, of course. That's precisely the service I can provide. $1,000 a week and I can start tomorrow. I have a team ready to go. Just fill in your name, sign here and it's all done.'

Kylie hands over to Nick a large pile of rose-coloured paper with what seems to be extensive writing on every page and a very large rose-shaped clasp in the top left corner. The top sheet is covered with images of roses but, amidst the roses, there is printed the words, 'Acknowledgements - Bad Seedlings Business Services Pty Ltd and _______'.

Nick asks, 'Hmm, what do I do with this? I can't read it all now. Is there anything I should know?'

Kylie replies, 'Just all the usual things. It's a standard three-year term. Is there anything specific you want to know?'

Nick says, 'Yes. Trust and reliability are very important. I really need to be able to rely on the fact that you'll get things done without me chasing up every detail. Can you do that?'

Kylie replies, 'Of course! We're absolutely reliable.' Nick responds, 'OK. I'll sign it now.'

Nick fills in his name and signs the document without reading it. He then hands over all of his billing, financial and other business details and returns to programming.

If Nick had read the document, he would have found the following terms: ...

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w. This written document represents the entire agreement between the parties and any statements, promises or representations that were made and are not in this document do not form part of this agreement.

x. Bad Seedlings Business Services agrees to provide regular financial reporting to its client.

y. Bad Seedlings Business Services does not guarantee the timeliness or reliability of any services provided pursuant to this agreement.

...

About a month later, Nick receives a message from Elisa Davey, who runs a labour hire business. She needs an app that her employees and contractors can use to monitor negative and positive Rapid Antigen Test ('RAT') results. The app needs to remind people when to take a RAT, allow them to submit a result by uploading a photo, and help with any reporting and notification requirements, as well as deal with staff who may need to isolate - all via a mobile based app that is easy to use. Nick loves these kinds of tasks. He is immediately very excited about possibly undertaking the project and has already come up with a name for it: 'Rat-A-Tat-App'. He invites Elisa to a meeting at his studio office.

The layout of the office is unusual. It is a large room with high ceilings and white painted walls. There is one desk and it is in the centre of the room. Around the desk are several pull- up self-standing banners, each around 0.5m wide and 2.0m high. Most of the banners are pink with Nick's red downward pointing hand business logo prominently visible at the top and there is text printed below the logo that quotes positive reviews from customers. However, under the red downward pointing hand on one banner is printed more detailed text. The text is in red ink and in a font size that is large enough to be read by a person sitting at the desk. The banner is located behind and to the side of where Nick sits. It states,

ALL EFFORTS MADE but no responsibility!! Nick Cavern will not be liable for any injury caused by any conduct authorised under this contract.

Elisa enters and sits at the desk, facing Nick.

She says, 'Wow! These banners are certainly striking - the pink gives everything such a positive energy.'

Nick waves his hand at the banners and says, 'Yes, they are very useful and always good to read.'

Elisa proceeds to discuss the app requirements with Nick. After a short discussion during which they agree on a price and the scope of the work, they fist-bump. Nick then hands over a white A4-sized sheet of paper with printing on the side facing upwards. Clearly printed at the top of the sheet are the words, 'Development and Delivery Requirements'. Below these words are several sentences that set out the development process for the app, one of which states:

...

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ii) A functional and operational version of the app must be delivered 48 hours after the commencement of this agreement.

... Elisa glances at the sheet of paper, folds it in half, puts it in her bag and leaves.

Nick starts work immediately on Elisa's app, coding away on his desktop computer. Things are going well for about 8 hours when, suddenly, Nick's internet goes down. A few minutes later his electricity turns off. Then his mobile phone loses connection to its network. He cannot keep working. It quickly becomes apparent that Bad Seedlings has not paid any of Nick's utility bills and now his connections are cut off. Nick also realises he has never received any financial reports from Bad Seedlings either. Although Nick immediately pays the outstanding bills, it takes 40 hours for his services to be reconnected during which time he can do no work and can receive no messages.

Meanwhile, about 24 hours after the meeting between Nick and Elisa, Elisa sends Nick an email, in which she writes, 'How's the project going? Is there a beta version I can try?' She does not receive a reply. Eight hours later she sends a voice memo, 'I need that app now! I need to keep my business going and my people safe. Get this done!' Again, she does not receive a reply. Concerned and frustrated, just less than 48 hours after her meeting with Nick, she sends him a text message in which she writes, 'Your delay has cost me a lot of money and I hope my staff don't get sick because of you. You will hear from my lawyers. This project is cancelled. You're off it. I'll find someone else.'

Nick receives the text message on his now-functioning phone and is aghast. A 'beta' version of the app was in fact ready to send to Elisa for testing so Nick quickly emails Elisa a link through which she can download the 'beta' version. He is relieved to have actually sent her something to look at after such a difficult 48 hours but he is very worried about any legal liability and about how his reputation may be damaged, so he comes to you for advice. He is also very angry at Bad Seedlings and wants to sue them, as well as end the contract with them.

Advise Nick on his rights and obligations in respect of Bad Seedlings Business Services Pty Ltd and Elisa Davey, including what action would be in his best interest.

(To the extent necessary, you can assume the events occur in New South Wales and any officer or employee has authority to act on behalf of their company.)