The Commerce Commission was also cross-appealing, and argued that there would be significant barriers for New Zealand consumers if Viagogo was allowed to deal with complaints through Swiss law.
The earlier court decision found only part of the company’s clause requiring matters to be resolved in court in Geneva to be an unfair contract term.
Today, lawyer for the Commerce Commission Nick Flanagan told the court that Viagogo’s position yesterday was that it accepted that consumers could go to the Disputes Tribunal in New Zealand, rather than having to pursue the company through the courts of Geneva.
He said it was a “concession” and “a 180-degree U-turn from the way the point has been put before”.
“By accepting that the Disputes Tribunal has jurisdiction, they are accepting that any consumer can go there for a claim of less than $30,000.”
Flanagan said this meant most claims would be covered – as most involved concert tickets.
Viagogo disputes U-turn assertion
Viagogo lawyer Aaron Lloyd told the court Viagogo had not made a concession as the Commerce Commission suggested.
He said Viagogo had never argued that consumers could not make Fair Trading Act claims or go to the Disputes Tribunal in New Zealand.
“All we’ve said to you today or yesterday is, have a look at what the law says,” he said. “The Fair Trading Act, the Consumer Guarantees Act and the Disputes Tribunal Act all say that if there’s a provision in a contract that seeks to contract out of those, [its] ineffective.”
Lloyd was asked by Justice Jillian Mallon why Viagogo was still fighting; he said it was a “matter of principle in a lot of respects”.
He said the company believed that the High Court ruling, particularly that it was misleading customers by effectively pretending to be a primary ticket sale site, was incorrect.
On Tuesday, Lloyd told the court Viagogo had not misled consumers about being a resale platform, and that it was difficult to see how an objective person would be misled into thinking Viagogo was a primary ticket seller.
Lloyd said then that the website was clear that it was the largest for “secondary sell-off of tickets”.
Lloyd said Viagogo was also concerned about other aspects of the High Court’s ruling.
The court has reserved its decision.