The proceedings..................................................................................................... [10]
The Commission’s claims against Viagogo..................................................... [10] The Commission’s without notice application for an interim injunction........ [15]
High Court decision............................................................................................... [18]
The Commission’s appeal..................................................................................... [21]
Interim relief against overseas defendants: relevant provisions....................... [23]
The High Court’s power to grant interim injunctions..................................... [23] General principles governing grant of interim injunctions............................. [30] Proceedings against overseas defendants....................................................... [32] Interim injunctions against overseas defendants............................................ [36]
Submissions for the Commission......................................................................... [38]
Submissions for Viagogo....................................................................................... [44]
The different senses of the term “jurisdiction”............................................... [49] The recent New Zealand authorities................................................................ [55] Service is not a prerequisite to the grant of interim relief............................... [69] Interim relief pending determination of a protest to jurisdiction.................... [77] The relevance of an actual or potential protest to jurisdiction....................... [85] Substituted service........................................................................................... [95]
In November 2018 the Commerce Commission (the Commission) filed proceedings against Viagogo AG (Viagogo) claiming that Viagogo is making false, misleading or deceptive representations to New Zealand consumers through its ticket reselling website, in breach of the Fair Trading Act 1986 (FTA). Viagogo is incorporated and headquartered in Switzerland. It has no physical place of business in New Zealand.
Viagogo declined to accept service of the proceedings through its New Zealand lawyers. It required the Commission to serve the proceedings at its headquarters in Switzerland. And it advised the Commission that if the proceedings were served on it in Switzerland, it would object to the jurisdiction of the New Zealand courts to determine the claims against it. The Commission proceeded to arrange service of the proceedings on Viagogo in Switzerland through diplomatic channels. This process can take many months.
Before the proceedings had been served on Viagogo in Switzerland, the Commission applied without notice for an interim injunction restraining Viagogo from making certain types of representation to New Zealand consumers through its website. The Commission advised Viagogo’s New Zealand lawyers that it was applying for a without notice injunction.
The Commission’s application was heard on 5 February 2019. Counsel for Viagogo appeared at the High Court hearing on a Pickwick basis,[1] and without prejudice to Viagogo’s position that it needed to be formally served in Switzerland and would be protesting jurisdiction. (It is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commerce Commission v Viagogo AG [2019] NZCA 472
Case
[2019] NZCA 472
Decision Date
CaseChat Overview and Summary
The Commerce Commission filed proceedings against Viagogo AG in the High Court, alleging that Viagogo was making false or misleading representations to New Zealand consumers through its ticket reselling website, in breach of the Fair Trading Act 1986. Viagogo declined to accept service of the proceedings in New Zealand and required the Commission to serve the proceedings at its headquarters in Switzerland. Before the proceedings had been served on Viagogo in Switzerland, the Commission applied for an interim injunction restraining Viagogo from making certain types of representation to New Zealand consumers through its website. The High Court held that it had no jurisdiction to grant the interim injunction, as the proceedings had not been served on Viagogo in Switzerland, and Viagogo had objected to the jurisdiction of the New Zealand courts to determine the claims against it. The Commission appealed the decision of the High Court. The Court of Appeal allowed the appeal, holding that the High Court has the jurisdiction to grant interim relief against an overseas defendant before service of proceedings, and before any protest to jurisdiction has been determined. The Court held that the High Court's power to grant interim relief is not limited in the same way as its jurisdiction to determine a claim against a defendant on the merits. Interim relief may be granted against an overseas defendant before service of proceedings, and before any protest has been determined, in order to improve the prospect of the court being able to do justice between the parties after a determination of the merits at a trial. The Court remitted the application for interim relief to the High Court, to be dealt with on notice to Viagogo and on the basis of up to date information about the Viagogo website.