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Commission wins appeal over Viagogo injunction case

The Commerce Commission has successfully appealed against the High Court’s decision not to issue an interim injunction against Switzerland-based online ticket reseller Viagogo.

In February the High Court at Auckland dismissed the Commission’s application for an interim injunction to stop Viagogo making allegedly false and misleading representations about tickets, including about price and availability, until our substantive case can be heard.

The High Court held that it had no jurisdiction to determine the injunction application because Viagogo had not been formally served with the Court proceedings in Switzerland. The Commission appealed that decision and the matter was heard by the Court of Appeal on 29 August.

In its judgment released today, the Court of Appeal said that the High Court erred in finding it did not have jurisdiction. While the court could only finally determine a case once jurisdiction was found, the jurisdiction to grant interim relief (such as an interim injunction) was not limited in the same way.

It said (at paragraph 7) that the court is “not deprived of the ability to make orders that are required to enable it to do effective justice between the parties in the future, in the event that the substantive claim is heard by a New Zealand court, simply because a defendant is to be served overseas or has objected to the jurisdiction of the New Zealand court.”

The decision means the Commission’s application for an injunction is able to proceed. As the Court of Appeal notes at paragraph 9, the Commission will need to consider changes made to Viagogo’s website before deciding whether to proceed with the application for an injunction

The judgment can be read here.

As this matter is still before the Court the Commission will make no further comment at this time.

The Commission’s substantive case
The Commission claims that Viagogo made false or misleading representations:
• that it was an “official” seller, when it was not
• that tickets were limited or about to sell out
• that consumers were “guaranteed” to receive valid tickets for their event
• about the price of tickets, when its ‘headline’ prices were unobtainable because of the addition of GST and various fees.
The Commission also alleges that Viagogo’s contract includes an unfair contract term. The term states that all disputes brought by a consumer must be heard in Swiss courts under Swiss law, but Viagogo can choose to take court action against consumers in the consumer's own country.

No attempt to ‘shut down’ Viagogo
Our application for an injunction was misreported as being an attempt to ‘shut down’ Viagogo or prevent it trading in New Zealand. It was not. The Commission sought only to prevent Viagogo making representations, which the Commission says are false or misleading, until our substantive case is heard.

Latest complaint numbers
Since 2014 the Commission has received 1139 complaints and enquiries about Viagogo. There were 557 during 2018 alone, which makes it the Commission’s most complained-about trader in a single year.

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