Hurlimann v Noland - [2020] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA554/2018
[2020] NZCA 42

BETWEEN	GAVIN JOHN HURLIMANN Appellant
AND	BEVERLEY ANNE NOLAND Respondent

Hearing:	6 August 2019
Court:	Clifford, Mallon and Moore JJ
Counsel:	S I Perese for Appellant B M Stewart and K N Sabine for Respondent
Judgment:	9 March 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant is to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

On 3 September 2015 the respondent, Beverley Noland, paid the appellant, Gavin Hurlimann, $305,902 pursuant to their relationship property settlement. That payment principally represented Mr Hurlimann’s entitlement to a one-half share in the family home. Some 11 days later, in circumstances to which we return, Mr Hurlimann paid $250,000 of that money back to Ms Noland. Then, in September 2016, Mr Hurlimann asked Ms Noland to return that $250,000 to him. Ms Noland refused to do so. She said the money was a gift she was entitled to keep.
Mr Hurlimann subsequently sued Ms Noland in the High Court for the return of that money. He said it had not been an outright gift. Rather, given the circumstances in which he had paid it back to Ms Noland, it was held by her for him on a resulting trust, or because its payment represented an unconscionable bargain, or because it had been paid as a result of deceit by Ms Noland. Brewer J declined Mr Hurlimann’s claim on each of those grounds.[1]
[1]Hurlimann v Noland [2018] NZHC 2251.
Mr Hurlimann now appeals.

Background[2]

[2]We draw this summary from Brewer J’s decision, noting that the Judge’s narrative was not challenged in any material way on appeal.

Mr Hurlimann and Ms Noland, at Ms Noland’s instigation, separated in 2012, after 12 years of marriage. However, the two retained amicable contact and for some time went to relationship counselling.
On 8 January 2015, Ms Noland discovered Mr Hurlimann in bed with another woman. This led to her applying for an order for the dissolution of the marriage.
Ms Noland was shocked, and very angry, when Mr Hurlimann responded by claiming an interest in her home. The matrimonial home was Ms Noland’s home from a previous marriage. When Mr Hurlimann moved in with Ms Noland before their marriage he would appear to have given some form of oral assurance he would never make a claim against it.[3] Ms Noland resented bitterly having to borrow money from her parents to pay Mr Hurlimann the $305,902 which Ms Noland was compelled to concede he was entitled to under relationship property law.
[3]Although Mr Hurlimann said he could not recall doing so, he acknowledged in cross-examination it was “highly probable” he had done so, and that he had to agree he had because Ms Noland had recorded his assurance in a diary note. Brewer J found as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hurlimann v Noland

Details

AGLC: Hurlimann v Noland [2020] NZCA 42
Case: [2020] NZCA 42
Decision Date: 9 March 2020 at 10 am

CaseChat Overview and Summary

In Hurlimann v Noland, the Court of Appeal dismissed an appeal by Gavin Hurlimann against a High Court decision which rejected his claim to the return of $250,000 he had paid to Beverley Noland. The $250,000 represented part of the settlement of a relationship property dispute between the parties. The appellant had paid the money to Ms Noland in circumstances in which he had hoped for a reconciliation with her. When the reconciliation did not eventuate, he sought to recover the money on the basis that it had been held on a resulting trust, or because the payment had constituted an unconscionable bargain, or because the payment had been made as a result of deceit by Ms Noland. The High Court rejected each of these claims. The Court of Appeal also dismissed the appeal. The payment had been intended as a gift and had not been made on the basis of any condition. There was no evidence Ms Noland had exercised undue influence over the appellant to obtain the gift. The Court of Appeal noted the vulnerability in the relationship between the parties but was not persuaded the appellant's mental health issues were such as to establish that Ms Noland had taken unfair advantage of him when she accepted the gift.

Orders