Pittmore Pty Ltd v Chan

In the case of *Pittmore Pty Ltd v Chan*, the dispute concerned a joint venture agreement for the development and resale of land. Pittmore Pty Ltd (Pittmore) sought to terminate the agreement and sell a portion of the land, while Mr Chan sought to uphold the joint venture. The case was heard on appeal.

The primary legal issues before the court were whether a written agreement could be rectified by construction due to an inconsistency, the effect of handwritten amendments on the interpretation of the agreement, whether a deed restating the joint venture terms was delivered in escrow, and whether a party's continued performance of the agreement after a purported termination constituted an election or waiver of their rights, particularly in light of a "no waiver" clause. The court also considered ancillary liability for procuring or inducing breach of trust or fiduciary duty, and whether a director's company could be liable for such breaches. Finally, the court examined whether the conduct of Pittmore was unconscionable under section 21 of the Australian Consumer Law.

The Court of Appeal held that handwritten amendments to a contract were to be given primacy over printed terms where there was an inconsistency. It found that the deed was not delivered in escrow, but was effective as a simple contract. The court determined that Mr Chan had not waived his rights by continuing to perform the agreement, as his actions were consistent with the continued existence of the joint venture and he had not elected to affirm the termination. Regarding ancillary liability, the court found that a director acting as such could be capable of procuring or inducing a breach of trust by their company. The court also found that Pittmore's conduct, while based on a mistaken belief of its entitlement to terminate, was not unconscionable under the Australian Consumer Law.

The appeal and cross-appeal were dismissed. Pittmore was ordered to pay Mr Chan's costs of the appeal, and Mr Chan was ordered to pay Pittmore's and Mr Tan's costs of the cross-appeal. A special order was made regarding the costs of the appeal books, stipulating that the costs of eight volumes of white folders were not to be passed on by David Kam & Co, meaning that firm was to bear those costs entirely.