Hurlimann v Noland - [2018] NZHC 2251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2837

[2018] NZHC 2251

BETWEEN
GAVIN JOHN HURLIMANN

Plaintiff

AND

BEVERLEY ANNE NOLAND

Defendant

Hearing: 20 and 21 August 2018

Counsel:

S Perese for Plaintiff

B M Stewart and K N Sabine for Defendant

Judgment:

29 August 2018

Reissued:

1 August 2019

(Correction of spelling of Defendant’s name on intitulment page)

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 August 2018 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Saseve Solicitors (Auckland) for Plaintiff Simpson Western (Auckland) for Defendant

HURLIMANN v NOLAND [2018] NZHC 2251 [29 August 2018]

Introduction

[1] On 14 September 2015, Mr Hurlimann and Ms Noland met for dinner at a restaurant. They had recently divorced and Mr Hurlimann was seeking a reconciliation. During the course of the dinner, Mr Hurlimann used telephone banking to refund to Ms Noland $250,000 of the money she had paid to him, 11 days previously, pursuant to their relationship property agreement. As it turned out, there was no lasting reconciliation. Mr Hurlimann now sues Ms Noland for the return of the $250,000. He pleads:

(a)Ms Noland holds the money for him on a resulting trust; or

(b)The payment was the result of an unconscionable bargain; or

(c)The payment was obtained by deceit on the part of Ms Noland.

[2] Ms Noland’s response is that the payment was a gift and she is entitled to keep it.

[3] Ms Noland counterclaims for $6,296, being the unpaid balance of loans she made to Mr Hurlimann.

Background

[4] Mr Hurlimann and Ms Noland separated in 2012 having been married for nearly 12 years. Their marriage was dissolved on 14 August 2015 and on 3 September 2015 Ms Noland’s solicitor paid Mr Hurlimann’s solicitor $305,902 pursuant to the parties’ relationship property agreement.

[5] I will not go into the history of the marriage. It is to a great extent irrelevant to the issues I have to decide. Ms Noland’s brief of evidence has a great deal to say about it, little of which was put to Mr Hurlimann in cross-examination. I pay no attention to it. I make the following findings from the evidence as a whole because they are relevant to understanding what happened at the restaurant:

(a)The matrimonial home was Ms Noland’s home from a previous marriage. Mr Hurlimann moved in with Ms Noland before their marriage and gave an oral assurance he would never make a claim against it.

(b)Mr Hurlimann had mental health issues. These adversely affected his behaviour.

(c)The couple separated in November 2012 at Ms Noland’s instigation. However, the two retained amicable contact and for some time went to relationship counselling.

(d)On 8 January 2015, Ms Noland discovered Mr Hurlimann was in a relationship with another woman. This led to her applying for an order for the dissolution of the marriage.

(e)Ms Noland was shocked, and very angry, when Mr Hurlimann claimed…

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 [2018] NZHC 2251
Case: [2018] NZHC 2251
Decision Date: 29 August 2018

CaseChat Overview and Summary

In the case of Hurlimann v Noland, Mr Hurlimann sued Ms Noland for the return of $250,000 that he had paid to her, arguing that the payment was either a resulting trust, an unconscionable bargain, or obtained by deceit. Ms Noland maintained that the payment was a gift and she was entitled to keep it. The court found that Mr Hurlimann intended to gift Ms Noland the $250,000, hoping it would lead to a long-term reconciliation, and that Ms Noland did not mislead him. Consequently, Mr Hurlimann's claims were dismissed, and judgment was entered on Ms Noland's counterclaim against Mr Hurlimann in the sum of $6,296, with interest. Ms Noland was also awarded costs on a 2B basis.

Orders