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ARTICLE · 24 APRIL 2017

No pressure! Financial difficulties alone will not establish duress

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Financial difficulties alone will not establish that a loan contract or a settlement deed was entered into under duress.

AustraliaFinance and Banking
David Abernethy
David Abernethy
Jason Salman
Jason Salman
Kirsty Sutherland
Kirsty Sutherland
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This week's TGIF considers Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208, in which the Court rejected a borrower's claims that it entered into a loan contract under duress and that the bank prevented its attempted sale of the mortgaged property.

BACKGROUND

In October 2010, Conjola Investments Pty Ltd (Borrower) entered into a contract to purchase a property at Lake Conjola (Property). In June 2011, the Borrower entered into a loan contract with ANZ (Bank) to finance the purchase and development of the Property. The loan was secured by mortgages and guarantees provided by Mr Bragg (director and shareholder) and Mrs Bragg (shareholder).

The Borrower first defaulted in December 2011. Although the Bank subsequently agreed to extend the loan on several occasions, the Borrower further defaulted on its payment obligations. In June 2014, the Bank entered into a settlement deed with the Borrower and Mr Bragg (Defendants), Mrs Bragg and

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