eBay International AG v Creative Festival Entertainment Pty Limited (ACN 098 183 281) [2006] FCA 1768

FEDERAL COURT OF AUSTRALIA

eBay International AG v Creative Festival Entertainment Pty Limited (ACN 098 183 281) [2006] FCA 1768 CONTRACT – general contractual principles – construction and interpretation of contracts – offer and acceptance – organiser of major music festival – admission tickets sold through various methods purporting to contain condition providing for cancellation of ticket if resold for profit – where resales of tickets through online market or auction sites sought to be specifically prohibited by condition of purchase - where terms and conditions not drawn to the attention of purchasers in some instances – where terms and conditions of sale differed from those on ticket in some instances - whether condition of no resale for profit incorporated into contract TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – consumer protection – misleading and deceptive conduct or false representations – organiser of major music festival – admission tickets sold through various methods purporting to contain condition providing for cancellation of ticket if resold for profit – where resales of tickets through online market or auction sites sought to be specifically prohibited by condition of purchase - where terms and conditions not drawn to the attention of purchasers in some instances – whether representation that condition prohibiting resale for profit was enforceable is misleading and deceptive Held – the relevant condition conveys a misleading representation that Creative is legally entitled to and would detect and cancel any ticket which is resold for profit and the holder of that ticket would be refused entry; applicant entitled to relief in the form of a declaration and injunction. WORDS & PHRASES – "for profit" Trade Practices Act 1974 (Cth) s 52 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 applied Cowell v Rosehill Racecourse Company Ltd (1937) 56 CLR 605 cited Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 applied Gange v Sullivan (1966) 116 CLR 418 cited Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 cited Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 applied Lewis v Daily Telegraph Ltd [1964] AC 234applied MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 considered Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 applied Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 cited RAIA Insurance Brokers Ltd v FAI General Insurance Ltd (1993) 41 FCR 164 cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418cited Sydney Corporation v West (1965) 114 CLR 481 followed Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 cited Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 applied/followed Zhu v Treasurer of NSW (2004) 218 CLR 530applied/followed EBAY INTERNATIONAL AG v CREATIVE FESTIVAL ENTERTAINMENT PTY LIMITED (ACN 098 183 281) NSD 2191 OF 2006