The Court of Appeal in Commerce Commission v Viagogo AG [2019] NZCA 472 has held that serving documents or hearing a protest to jurisdiction are not prerequisites to granting interim relief against an overseas defendant.

The Commerce Commission had sought an interim injunction against ticket seller Viagogo in the High Court to prevent the publication of allegedly false and misleading representations on Viagogo's website. As Viagogo had not been served with the proceedings in Switzerland (and thus the jurisdiction of the New Zealand court had not been tested), the Court considered it illogical to order an interim injunction before it decides whether it has jurisdiction to hear a claim. Accordingly, the application was denied.

The Court of Appeal disagreed, holding that while a court "cannot proceed to finally determine a claim against a defendant while any protest to jurisdiction is outstanding", the grant of an interim injunction "is not limited in the same way" as it does not have the same finality as a finding on the merits. The fact that a defendant is yet to be served or raises a protest are factors relevant to determining the overall justice when considering an interim injunction application, but they do not preclude relief.

In support of its finding, the Court stated that it "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 Commission must now decide whether it proceeds with its application for an injunction.

See the Court's decision here.