Commerce Commission v Viagogo AG - [2019] NZHC 187

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002659

[2019] NZHC 187

UNDER Parts 1 and 5 of the Fair Trading Act 1986

BETWEEN

COMMERCE COMMISSION

Applicant

AND

VIAGOGO AG

Respondent

Hearing: 5 February 2019

Appearances:

N F Flanagan and A D Luck for Applicant

A J Lloyd and H Meikle-Downing for Respondent

Judgment:

18 February 2019

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 February 2019 at 3.30 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date………………………

COMMERCE COMMISSION v VIAGOGO AG [2019] NZHC 187 [18 February 2019]

Introduction

[1] Viagogo AG is a Swiss company that operates a ticket reselling website in New Zealand, In 2018, the Commerce Commission received more complaints about Viagogo than any other trader, and by some considerable margin. To date, more than 750 consumers have complained about Viagogo. The Commission has brought proceedings under the Fair Trading Act 1986 (FTA) alleging that Viagogo is making false and misleading representations on its website. It has applied for an interim injunction prohibiting Viagogo from continuing this conduct pending determination of the substantive proceeding.

[2] The injunction application came before me on a Pickwick basis. Viagogo has not yet been served formally. It is aware of the proceedings and its New Zealand solicitors have been provided with copies of the documents but formal service in Switzerland will, apparently, take some six months. Mr Lloyd appeared for Viagogo and advised that the company intends, once served, to file an appearance and objection to jurisdiction.1 He argued that, in these circumstances, this Court has no jurisdiction to determine the injunction application. Mr Flanagan, for the Commission, argued that jurisdiction clearly exists under the FTA and, in the absence of any objection to jurisdiction actually having been filed, there is no barrier to the Court determining the application.

[3] For the reasons that follow I consider that there is no jurisdiction to determine the injunction application at this stage. That must await service or, if the matter is sufficiently urgent, substituted service, on Viagogo.

Background

[4] The complaints made about Viagogo are reflected in the statement of claim. The Commission alleges that the Viagogo website falsely represents that it is an official ticket seller for events in New Zealand but, in fact, is not retained as an official ticket seller by promoters of events in New Zealand. The Commission alleges that Viagogo represents that the number of tickets available are very limited, which is false

1 High Court Rules, r 5.49(1).

and misleading because there are tickets available through official ticket sellers. The Commission alleges that Viagogo represents that the tickets it sells are valid when, in fact, many of the tickets it sells are invalid, including because they have already been sold or are forgeries. The Commission alleges that Viagogo only shows the true cost of the tickets (with fees) at a very late stage in the…

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: [2019] NZHC 187
Decision Date: 18 February 2019

CaseChat Overview and Summary

The Commerce Commission filed proceedings against Viagogo AG, a Swiss company operating a ticket reselling website in New Zealand, under the Fair Trading Act 1986. The Commission sought an interim injunction against Viagogo, alleging that it made misleading representations on its website. Viagogo, which has not yet been formally served, intends to file an objection to the Court's jurisdiction once served. The court was required to determine whether it had jurisdiction to hear the application for an interim injunction before Viagogo was served. The Commission argued that jurisdiction existed under the Fair Trading Act, while Viagogo contended that without formal service, the Court had no jurisdiction.

The court considered the principles established in previous cases, noting that New Zealand courts generally do not determine interlocutory applications where the defendant has objected to jurisdiction until the issue is resolved. The court distinguished the case from Discovery Geo Corporation v STP Energy Pte Ltd, where the defendant had not been served and the matter was deemed urgent. The court held that jurisdiction is dependent on valid service on the defendant and that, in the absence of formal service or substituted service, the Court did not have jurisdiction to determine the application for interim relief.

In conclusion, the court dismissed the application for interim relief due to the lack of jurisdiction at that stage. The Court held that a party is brought within its jurisdiction by being served, and in this case, Viagogo had not yet been served. The court found that the Commission's argument regarding the urgency of the matter did not override the requirement for formal service or substituted service. Therefore, the application was dismissed, and the court did not have jurisdiction to consider and determine the application for interim relief.

Orders