Commerce Commission v Viagogo AG - [2024] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2659

[2024] NZHC 713

BETWEEN
COMMERCE COMMISSION

Plaintiff

AND

VIAGOGO AG

Defendant

Hearing:
15 – 17, 20 – 24, 27, 28 February 2023, 1 – 3, and 6 – 9 March

2023

Appearances:

N F Flanagan, A D Luck, C M Fleming, P J O’Boyle, A J Tapsell and R C B Kendall for Plaintiff

A J Lloyd, J T Hambleton, A C Payne, O M de Pont, J S Hofer and C M Hoeft for Defendant

Judgment:

28 March 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 March at 3.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Meredith Connell, Auckland
MinterEllisonRuddWatts, Auckland

COMMERCE COMMISSION v VIAGOGO AG [2024] NZHC 713 [28 March 2024]

Table of Contents

Introduction.......................................................................................................... [1]

Background.......................................................................................................... [4]
viagogo[5]
Investigation/statement of claim[11]

Relief[17]

viagogo’s website................................................................................................ [18]

Evidence.............................................................................................................. [19]

Appearance of the website[20]

Consumer dissatisfaction[22]
Discovery[29]
Further discovery[35]
Communications by consumers to the Commission[37]
Submissions on evidence of consumer dissatisfaction
viagogo[40]
Commerce Commission[42]
Discussion[44]

Other evidence[48]

Fair Trading Act 1986........................................................................................ [55]

First cause of action: inadequate disclosure of status as a resale platform . [63]

Test[65]

Background[69]

Submissions
Commerce Commission[74]
viagogo[77]
Discussion[83]

Second cause of action: the Guaranteed Tickets Representations [91]

Background [94]

Submissions

Commerce Commission [102]

viagogo [108]

Discussion [117]

Pleading point	[123]
Background	[128]
Submissions Commerce Commission	[131]
viagogo	[137]
Discussion	[139]
ourth cause of action: the Price Representations....................................... [144] Background[149]
Submissions Commerce Commission	[157]
viagogo	[164]
Discussion	[167]

Third cause of action: the Scarcity Representations[121]

F

Fifth cause of action: the Official Seller Representations[171]

Submissions

Commerce Commission [174]

viagogo [177]

Discussion [183]

Sixth cause of action: the unfair contract term............................................. [191]

Background[193]

Section 46I[194]
Standard form consumer contract/s 46K[195]
Unfair[197]
Significant imbalance[199]
Reasonably necessary[202]
Other matters[203]
Terms and conditions[205]
Courts of Geneva[209]
Governing law[219]
Relief[225]
Result................................................................................................................ [228]
Costs.................................................................................................................. [233]

Introduction

[1] This judgment determines the Commerce Commission’s (“Commission”) application for relief against the defendant, viagogo AG (“viagogo”), under the Fair Trading Act 1986 (“FTA”). viagogo operates a global online platform or marketplace on which sellers offer tickets to live events taking place around the world.1 viagogo’s online presence in New Zealand is (“website”).

[2] The first and most substantial part of the Commission’s case against viagogo is that, in conducting its business, viagogo engages, or has engaged, in conduct that is likely to mislead and that it has also made false or misleading representations, all in breach of ss 9, 11, and/or 13 of the FTA.

[3] The second, more confined, part of the Commission’s case is that cl 7.4 of viagogo’s terms and conditions is an “unfair contract term” within the meaning of the FTA, and it seeks a declaration to that effect. Clause 7.4 provides that all disputes pertaining to the terms and conditions will be governed by Swiss law and determined in the courts of…

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

Case: [2024] NZHC 713
Decision Date: 28 March 2024

CaseChat Overview and Summary

In Commerce Commission v Viagogo AG, the Commerce Commission sought relief against Viagogo AG under the Fair Trading Act 1986, alleging multiple breaches of the Act by Viagogo in its operation of a global online ticket marketplace. The Commission's primary allegations were that Viagogo engaged in conduct likely to mislead consumers and made false or misleading representations. This included claims that Viagogo failed to adequately disclose its status as a resale platform, made false guarantees about the validity and timely receipt of tickets, presented tickets as scarce when they were not, misrepresented the prices of tickets, and implied it was an official seller of tickets. The Commission also sought a declaration that a clause in Viagogo's terms and conditions governing disputes was an unfair contract term.

The court found in favour of the Commission on all counts, concluding that Viagogo's conduct and representations were misleading and in breach of the Act. The court found that Viagogo did not adequately disclose its status as a resale platform, thereby misleading consumers into believing it was an authorised ticketing agent. It also found that Viagogo's guarantees regarding the validity and timely receipt of tickets were misleading, as Viagogo could not provide such assurances and reserved the right to offer a refund instead. The court further found that Viagogo's representations regarding the scarcity of tickets and the true cost of tickets were misleading, as they did not accurately reflect the availability of tickets and concealed additional fees until late in the purchasing process. The court also concluded that Viagogo's advertisements implying it was an official seller of tickets were misleading. Lastly, the court declared part of Viagogo's terms and conditions, which required disputes to be resolved exclusively by the courts of Geneva, to be an unfair contract term due to the significant imbalance it created in the rights and obligations of the parties.

The court ordered Viagogo to publish a corrective statement on its website and directed the parties to discuss and agree on the terms of the injunction and the corrective statement. The court also directed the parties to make submissions on costs if they were unable to agree.

Orders