Commerce Commission v Viagogo GmbH - [2024] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2659

[2024] NZHC 1666

BETWEEN
COMMERCE COMMISSION

Plaintiff

AND

VIAGOGO GMBH

Defendant

Hearing: 17 May 2024

Appearances:

N F Flanagan and E M McDowell for Plaintiff A J Lloyd and C M Hoeft for Defendant

Judgment:

21 June 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 June 2024 at 4.30 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 GMBH [2024] NZHC 1666 [21 June 2024]

Introduction

[1] This judgment addresses matters of relief that remained outstanding when I issued my substantive judgment on 28 March 2024 (“judgment”).1

[2] Since then, and as I asked, counsel for the Commerce Commission (“Commission”) and for viagogo GmbH (“viagogo”) have communicated regarding the orders to be made, and counsel also appeared before me on 17 May 2024 to progress matters. Following that appearance, counsel have filed further memoranda, identifying matters which are agreed and those which are not. Counsel are content that I should determine the outstanding matters on the papers, which I now do. I add that both parties have appealed my judgment. Accordingly, to the extent I say they have “agreed” on a certain course, it is without prejudice to their position on appeal.

Audience

[3]I make the following order by consent:

The Court orders that viagogo is required to automatically and immediately redirect all persons using a New Zealand IP address who access any viagogo website to (if they are not already on that domain).

[4] This order subsists pending further order of the Court or agreement between the parties.

Declaration

[5] At [225] to [227] of my judgment, I said I would declare part of cl 7.4 of viagogo’s terms and conditions to be an unfair contract term in the sense of s 46I Fair Trading Act 1986 (“FTA”), with the precise form of the declaration remaining to be settled.

[6] I am satisfied that the form of declaration the parties have suggested meets what is required, and I declare:

That the part of clause 7.4 of viagogo GmbH’s terms and conditions providing that “All disputes arising out of or in connection with this Agreement,

1 Commerce Commission v viagogo AG [2024] NZHC 713 at [229]–[231].

including disputes on conclusion, binding effect, amendment and termination, shall be resolved exclusively by the competent Courts of Geneva, Switzerland. We also have the option of taking legal action against You at Your domicile” is an unfair contract term under the Fair Trading Act 1986 in so far as it applies to any contracts formed by viagogo with consumers while viagogo is carrying on business in New Zealand on the domain statement
Language
[7] At [230] and [231] of my judgment, I said I would order viagogo to publish a corrective statement, and I asked the parties to liaise as to 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: [2024] NZHC 1666
Decision Date: 21 June 2024

CaseChat Overview and Summary

This case before the High Court of New Zealand involves the Commerce Commission (the Commission) suing viagogo GmbH (viagogo) for various breaches of consumer protection laws. The legal issues at hand pertain to the enforcement of consumer rights under the Fair Trading Act 1986, including the declaration of unfair contract terms, the requirement for corrective statements on viagogo's website, and injunctive relief concerning misleading representations about ticket guarantees. The court had to decide on the appropriate corrective measures and the terms of an injunction to prevent further misleading conduct.

The court ruled in favour of the Commission on several points. Firstly, viagogo must automatically redirect users with New Zealand IP addresses to a specified domain. Secondly, the court declared a specific clause in viagogo’s terms and conditions, which mandated resolution of disputes in Swiss courts, to be an unfair contract term. Thirdly, the court mandated the publication of a corrective statement on viagogo’s website to clarify that viagogo operates as a ticket resale platform and does not guarantee that purchased tickets will grant entry to events. The statement was to be prominently displayed on multiple pages of the website, with specific requirements for font size and frequency of appearance. The court also granted the Commission's request for an injunction against viagogo making certain representations about ticket guarantees, including prohibiting substantially similar representations not explicitly listed in the injunction.

The court's decision ensures that viagogo's website will prominently display accurate information about its role as a resale platform and will cease making misleading guarantees about ticket validity. These measures aim to protect consumers from being misled at the point of purchase and to enforce compliance with consumer protection laws.

Orders