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…
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