The Commerce Commission is appealing the High Court’s decision declining to grant an interim injunction against online event ticket seller Viagogo.
The Commission applied for an interim injunction seeking to prevent website representations by Viagogo which the Commission alleges are misleading. In February the High Court at Auckland dismissed the application.
The High Court held that it had no jurisdiction to determine the injunction application because Viagogo has not been formally served. Viagogo is based in Switzerland and has declined to accept service of the Court proceedings in New Zealand. Service by diplomatic channels will take some months.
In a decision released today the High Court has given the Commission leave to appeal the injunction decision to the Court of Appeal.
“The Commission has carefully considered the decision and we have decided to appeal it because of the ongoing harm that we believe New Zealanders are being caused by Viagogo’s marketing. The number of complaints we are receiving about it is unprecedented, with nearly 950 now received,” said Commission Chair Dr Mark Berry.
As the matter remains before the Court, the Commission will make no further comment at this time.
While the injunction appeal is progressed, the Commission is also continuing with service steps so that the main substantive action can proceed towards a hearing date.
Commission not seeking to ‘shut down’ Viagogo
The Commission’s application for an interim injunction did not seek to ‘shut down’ Viagogo or to prevent it trading in New Zealand, as was widely misreported. The interim injunction sought only to prohibit Viagogo from making claims on its website which the Commission alleges are misleading.
The Commission’s substantive case
The Commission has taken High Court proceedings against Viagogo seeking the following:
declarations that Viagogo has breached the Fair Trading Act 1986
an injunction restraining it from further breaches
corrective advertising orders.
the Commission will also allege 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.
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.
In the injunction appeal, the Commission is seeking orders preventing these misrepresentations from continuing until the main substantive case can be heard.