GLOBAL PRESTIGE BRANDS LTD V DHL GLOBAL FORWARDING (NZ) LTD HC AK CIV 2008-404-1579

GLOBAL PRESTIGE BRANDS LTD V DHL GLOBAL FORWARDING (NZ) LTD HC AK CIV 2008-404- 1579 19 June 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-1579BETWEEN GLOBAL PRESTIGE BRANDS LTD Appellant AND DHL GLOBAL FORWARDING (NEW ZEALAND) LTD Respondent Hearing: 19 June 2008 Appearances: Andrew Speed for Appellant Pauline Barratt for Respondent Judgment: 19 June 2008JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Walker Associates (Auckland) for Appellant Jones Fee (Auckland) for Respondent COUNSEL Andrew Speed[1] Global Prestige Brands Ltd, an Auckland importer, appeals against a decision by Judge Philip Gittos in the District Court at Auckland on 21 February 2008 granting judgment to DHL Global Forwarding (New Zealand) Ltd for $19,292.50 together with interests and costs, being the amount owing for the costs of delivering goods from Italy in April 2007. [2] Mr Andrew Speed for Global submits that the Judge erred in three respects. His arguments largely replicate those made in the District Court. [3] In summary Mr Speed says that, first, the Judge erred in finding that EuroItalia acted at all material times as Global's agent (even though a concession to that effect was made in the District Court) in the face of evidence that EuroItalia acted outside the scope of or in breach of its instructions from Global. However, that argument does not affect Global's direct contractual obligations to DHL assumed through the medium of its agent. It is relevant to the separate question of whether or not Global has suffered loss as a result of EuroItalia's breach of its agency duties; in that event Global's remedy lies against EuroItalia but does not in any way affect its direct liability to DHL. [4] Second, Mr Speed submits that the Judge erred in finding that DHL could not with proper and reasonable diligence have put into effect a countermanded direction contained in an email from its manager on 13 May 2007 that the mode of carriage be by sea rather than air. However, this argument must fail because the underlying contract contained in EuroItalia's letter of instructions and DHL's airway bill provided for the carriage of goods by air from Milan to Auckland commencing on 11 April. The contract had been partly performed by the time Mr Blum requested a change in the manner of that performance. His letter did not constitute a cancellation of the contract (as is reflected by Global's subsequent acceptance of the goods) but a proposal to vary. While DHL attempted to accommodate Global's request, it did not agree to vary the underlying contract. This argument must fail. [5] Third, Mr Speed submits that the Judge erred in dismissing Global's defence that DHL had not substantially performed its contract as at 13 April. This submission must fail for the same reasons as the preceding argument. Moreover, theprovision on which Mr Speed relies – clause 22 of the contract – simply provides an option to DHL in the event of cancellation (which did not occur here) and does not give any rights to Global. [6] The appeal must be dismissed. [7] DHL is entitled to costs. While accepting the skill and ingenuity of Mr Speed's arguments, I am satisfied that the appeal was hopeless. DHL is entitled to an award of indemnity costs in this Court which I fix at $1,500. ______________________________________ Rhys Harrison J