Case: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 
Outcome: applied
It is common ground that an assignee or donee of a ticket who became a holder otherwise than through a resale for profit by the original purchaser, is not bound by new condition 6 and that such a holder is free to resell for profit. There is an ambiguity in the words 're-sold for profit'. An original purchaser could resell and realise a profit without having been motivated to make a profit. The choice for construction of the expression is between the subjective motivation of the seller as opposed to the objective fact of a resale at a price greater than $120. (The cost may vary depending on the nature of the transaction including any applicable booking fee or postage costs. In these reasons I will refer to $120 as an illustration of the approximate cost to purchase a ticket.) The second sentence of new condition 6 prohibits two methods of sale, but must be read with the first sentence. The commercial purpose of new condition 6 is to prevent 'scalping' that is the purpose which reasonable persons in the position of Creative and original purchasers would have had in mind at the time of sale ( Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] ). 39 It is necessary to construe new condition 6 so as to avoid it making commercial nonsense or working commercial inconvenience ( Zhu 218 CLR at 559 [82]). If the subjective intention of a vendor on eBay were relevant, new condition 6 would not operate automatically. There would be no readily ascertainable way of enforcing it without enquiry by Creative as to the subjective motivations of an original purchaser who resold. Accordingly, I am of opinion that the proper construction of 're-sold for profit' is that it operates on the objective fact of the price realised on resale being greater than $120. 40 When a purchaser wished to buy a ticket to Big Day Out from Ticketmaster online, he or she would go to a Ticketmaster webpage with a subheading 'Hot Tickets' on which the words 'Big Day Out 2007' appeared. Each webpage had a clause stating that by continuing past it the user agreed to abide by Ticketmaster's terms of use which included its purchase policy. At the top of that page it was stated that the tickets would be mailed in late November 2006. By clicking on 'Big Day Out 2007' the purchaser was then taken to a Ticketmaster webpage headed 'Big Day Out 2007' with the venues and dates marketed by Ticketmaster on it (being Sydney, Melbourne and Perth). This page was mainly a publicity or general information page. The purchaser then clicked on the 'Buy Tickets' button and an events search results page opened showing the three venues being marketed. Each had a button for 'Find Tickets'. By clicking on the button for the relevant event, a new webpage opened containing event information and indicating that the box office was open. 41 The purchaser was told that if they were already a Ticketmaster member and had their billing information pre-registered they could log in on the log in button. If not, they were then directed to complete the information needed to become such a member. It was a condition of establishing such a membership that the user of Ticketmaster's website accepted the terms of use on the website as governing the relationship. That provided that the purchase policy would govern the order or purchase of any tickets through the site. The purchaser had to agree by using the site to abide by the terms of that policy. The purchase policy contained the following terms and conditions: 'This Purchase Policy is subject to, and incorporates by this reference, the Terms of Use. Each ticket that you purchase is a licence to attend a particular event and is subject to the additional terms set forth on that ticket. ... Unlawful Resale of Tickets Commercial Purposes Unlawful resale of tickets (or attempt) is grounds for seizure and cancellation without compensation. A ticket shall not be used for advertising, promotions, contests, or sweepstakes unless formal written authorisation is given by the Event Provider, provided that even if such consent is obtained, use of Ticketmaster's trademarks and other intellectual properties are subject to Ticketmaster's consent.' 59 Again, whatever be the precise contractual analysis of the position, the very terms of the conditions of sale are calculated to convey to an ordinary reasonable person reading them that they cannot get out of the conditions. Ironically, it is Creative that has argued that the purchaser can eschew the conditions it wrote and imposed on the ticket telling the purchaser that they could not get a refund. This unattractive argument has no commercial morality about it. These are consumer transactions, mainly effected with young people who are not experienced in the commercial world. Creative used its own drafting of contractual terms and the representations they convey as to the efficacy of those contractual terms to assert that the purchaser cannot get a refund. It then had senior counsel argue that, applying classical contractual analysis, the purchaser could ignore its own ticket wording because the customer in fact had a right to a refund. The argument is less than meritorious. Creative's argument makes the very words condition of sale 3 commercial nonsense ( Zhu 218 CLR at 559 [82]). I reject the argument. 60 Before 16 November 2006, if a person went to a retailer, other than Ticketmaster, seeking to buy tickets over the counter, there was no material at the retailer's premises to indicate what conditions were sought to be imposed on the ticket other than those contained on the back of the ticket itself. I am of opinion that a similar analysis to that which applies to Ticketmaster's over the counter sales applies here.