Hurlimann v Noland
[2018] NZHC 2251
•29 August 2018
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 an interest in her home.
(f)Ms Noland resented bitterly having to borrow money from her parents (who could ill afford it) to pay Mr Hurlimann the $305,902 which Ms Noland was compelled to concede he was entitled to under relationship property law.
[6] As I have said, Ms Noland’s solicitor transferred the $305,902 to Mr Hurlimann’s solicitor on 3 September 2015. Around that time Mr Hurlimann contacted Ms Noland. He was friendly and wanted to meet. There was an initial meeting at a bar on 7 September 2015.
[7] Ms Noland had a habit of recording electronically her conversations with Mr Hurlimann. As a result, there are transcripts of two telephone conversations which preceded the restaurant dinner meeting and a transcript of the bulk of the conversation
which took place at the restaurant meeting.1 At the trial, the audio recording of the meeting was played.
[8] Mr Hurlimann telephoned Ms Noland on the morning of 14 September 2015. It is clear Mr Hurlimann wanted another meeting and Ms Noland was not so sure:
Gavin
I don’t mind. But but – I don’t mind if you get in my ear, but you know a conversation about something else would be good too – Coz, you know saying the same shit over and over and over and over and over and over – rehash rehash rehash is not doing either of us any good-
Beverley
Yeah.
Gavin
But again like I said I don’t mind if you get in my ear and bash my ear. You can talk your head off as much as you want, I’ll even let you punch me if you want but you won’t, you won’t hit me you won’t be able to get me [XX unable to make out]
Beverley
Mm Yeah – but the ah the thing is I mean its been short term its only been one week and you’ve rattled my cage – my head um and I’m – I don’t know how to deal with it. I know what I should have done is I should have just hung up and not bothered because – um mentally I – it would be better actually if you had just died – the grieving process is better if you
Gavin
Well here is the good news I’m not dead
Beverley
Yeah but you know what I mean, the grieving process would have been better if you were just dead – the fact that you are alive means I have got to handle it slightly differently – and that makes it very difficult
…
1 The transcripts were prepared by Ms Noland herself and no point was taken as to their accuracy, despite some editorial comment being present.
Beverley
But I don’t know if today is a good day because it is only a week or weather (sic) you need a bit more time to think about what it will take to make things right as well.
Gavin
Ahh today is the perfect day, and I’ll tell you why. Because it’s a Monday right – I don’t know what its like over at your place but it’s pretty sunny over here. Now I thought that we could – if you are agreeable go out to Elevation and just have a little bit to eat and a cup of tea. The place is open till 7pm at night – I’m not working today and I know you’re not working. So I thought today is a good day to air all the dirty laundry and talk talk talk talk talk. Excetera (sic). That was my thinking – that’s all. No hidden agendas, no trying to get into you knickers – no trying to charm you, nothing like that okay
[9] Eventually, the two agreed to meet “at Elevation” at 3:30 pm.
[10] I include the next extract because it gave me insight into Mr Hurlimann’s personality and the way he interacts with Ms Noland:
Gavin
My car is the white one that hasn’t been washed for three years and looks like someone with a mental illness has been driving it because every panel on it is dented.
Beverley
I know
Gavin
Well that’s going to change – Oh guess what its actually got a Wof and Registration – laughing heartily – its got a full warrant and a 12 month rego
Beverley
Well that’s good, its a good car
Gavin
The mighty holden will never die
Beverley
Well, that holden that you hated
Gavin
I love it now – its good – an awesome car
Beverley
Aha now that it’s got character
Gavin
And guess what – you’ll love this… I’ve only had sex in that car with one person
Beverley
Well it wasn’t me
Gavin
It was you – it was you
Beverley
Ah Anna’s 50th
Gavin
Yep yep – and that’s true cross my heart, hope to die –
Beverley
Yeah yeah yeah
Gavin
On my mother’s grave
Beverley
Yeah yeah well I don’t need to know all that
Gavin
Well I’m just telling you that – ok so are we good for 3:30
Beverley
Yep see you there at 3:30
[11] There is a sexual element to the banter which is evident in other communications between the two. Mr Hurlimann, at all times, appears confident, assertive and focused on ingratiating himself with Ms Noland. His personality can
seem naïve. Ms Noland describes him at one point as a “Peter Pan”, an attribute she found endearing.
[12] The meeting at Elevation did not occur. At around lunchtime on 14 September 2015, Mr Hurlimann telephoned Ms Noland to tell her that Elevation was closed. The two agreed to meet for dinner at another restaurant.
[13] Ms Noland was still hesitant about meeting Mr Hurlimann and told him she was going to forward an email “because so you know where my head was because I was not going to meet you at all today”. I will refer to the email later.
[14] During this conversation, there is reference to “making things right”. It is suggested by counsel for Mr Hurlimann that this is code for repaying money to Ms Noland:
Gavin
No no no I wasn’t. This is my plan ok if you weren’t going to answer my texts, sorry no not my texts, my phone calls today what I planned to do – and this is my plan, I was going to ring this morning, then I was going to ring at lunch time and UM then I was going to ring around dinner time tonight and if all of those times you hadn’t answered then Id just, email you and text you and say well, That’s it, basically. Coz I am trying to extend the olive branch and make things right. You know what I mean
Beverley – [5:20]
Yes well that’s what we’ve got to talk about what you see as making things right. Because you, because until you, I need to know from your head what you think you are trying to make right
Gavin
Ah shit yeah
Beverley
Because in your head what you think you might be trying to make right and what I think you need to make right, you know what I mean, you keep making reference to Pauline – and all that sort of stuff. That’s neither here nor there – that’s not where the damage was
[15] The transcript of the restaurant meeting begins with Ms Noland arriving:
Beverley
Fucking Hell, I think I’m finally here. God knows, Oh Jeeze there he fucking is, in the most banged up car in the whole fucking car park. Right see what we can do with this conversation.
[16] The tone for the meeting, at least on Mr Hurlimann’s part, is set by Mr Hurlimann’s opening compliments:
Gavin
You look lovely today – Oh – love the porno shoes [laughing]
Beverley
They aren’t porno shoes
Gavin
They are
Beverley
They are not – they are my designer shoes
Gavin
Hey I’m a guy and I know what porno shoes are – and don’t be hiding behind an oh innocent look
Beverley
Well I’m not in a porno – so…
Gavin
Bloody hope not – how much time have you got
Beverley
How much time do you need?
Gavin
As long as it takes – hang on [Gav’s phone was going nuts] Is it hot or is it just me
Beverley
Is that your one liner for the day? hahahaha
Gavin
No – I have better one liner’s than that –
[17] Towards the beginning of their conversation, Mr Hurlimann tells Ms Noland he has not read the email she sent earlier in the day but has a copy with him. Later in the meeting he reads it. I will refer to its contents shortly.
[18] During the first part of the restaurant meeting, Ms Noland gives her side of the events leading to the dissolution of their marriage. It is clear she feels angry and betrayed, and I infer this was not just at the events that occurred while the two were still living together but her post-separation discovery of Mr Hurlimann’s new relationship. This is clear from her words and from the way she expresses herself. The fact that Mr Hurlimann made a claim on Ms Noland’s house is a particularly sore issue for Ms Noland. At one point, Ms Noland is in tears and there is this exchange:
Beverley
Everything I’ve done, I’ve had to just sit back because you’ve had the power and the control over everything and all I’ve said to anybody – if anyone sees Gavin just can you at least say can you please talk to Beverley – no one saw you. Just talk to me. What do you want? If you want to move on, fine. But what do you want – you cost me thousands and thousands, notwithstanding what I paid you the $310 thousand. Thousands on top of it just because I had to go to a litigating lawyer just because I didn’t answer by 5 pm on this certain date. I answered.. but my lawyer was sick and he didn’t take you seriously
Gavin
What an idiot lawyer you had
Beverley
I did, and when I rang your lawyer and said I responded – I responded, he said go away woman I can’t talk to you.
Gavin
Coz that’s his job
Beverley
Go away woman I can’t talk to you – go away woman you can’t talk to me. Fucking go away woman
Gavin
It’s his job
Beverley
Go away woman, its fucking you –
Gavin
It’s his job
Beverley
It’s you telling him what to do
Gavin
I didn’t tell him to do that
Beverley
It’s you telling him what to do
Gavin
I did not
Beverley
He does nothing without your say so
Gavin
He didn’t even tell me that you had called him. Honestly he didn’t tell me that you had tried to speak to him on the phone. Now whether he forgot to tell me that, which I doubt or he thought it better for me not to know
Beverley
I was ringing you at the same time and you hung up. I’ve made an offer Gavin, I even texted you, I’ve made an offer Gavin – why are we going through litigation – why are you putting me through this. Do you know what it was like 9 months of being held captive in a dungeon being treated to the most horrible torture? Then finally Im thinking, finally I can stop thinking about you and have that hurt less and start to move on and have people around me that make me feel a little bit better about myself and make me believe I am a beautiful loving wonderful person and that I don’t deserve to be treated that way.. and then you make a call and it was like I’ve been freed and I walk into a court room and there’s Gavin you look at me and I’m right back – That’s exactly what you’ve done [21:55] and that’s why this hurt its like it might have been yesterday.. its all just back to yesterday. All because you’re a Coward, you are a coward because you wouldn’t talk to me you wouldn’t see me and you wouldn’t say “Beverley I can’t cope with this anymore we are not in a healthy place and I need to move on”. You wouldn’t let me go, and we couldn’t amicably go forward – and then you had a guy inflate inflate the value of our house
Gavin
Well “I” didn’t, I…
Beverley
Oh Gavin 100k more in 3 months
Gavin
I know, no listen, listen listen to me
Beverley
A 100k more, Gavin I’d never save that
[19] From this point, Mr Hurlimann reacts to the house issue. His tone of voice changes. He speaks seriously, slowly and emphatically:
Gavin
Listen listen listen to me. Listen listen to me, listen – finance wise – listen, listen, listen finance wise it’s all going to be okay, okay? Don’t worry about it
Beverley
You can say that Gavin but that means nothing, I need.. Ah it means nothing, your word means nothing, it isn’t going to be ok? What are you going to do, you are smoke and mirrors, you’re smoke and mirrors the whole thing with you is just smoke and mirrors – you are just saying what I want to hear – just to – its the power and control that’s all I feel – what have you done Gavin, that you even did it, I can’t believe I said there is no way you did it, I can’t believe you did it, you did exactly what everyone said that you were going to do
Gavin
I know, I know but guess what? I can undo it, Beverley I can undo it
Beverley
If you were to undo it – financially it would go a long way for me helping you fix your family
Gavin
Fix my family?
Beverley
Fix your relationship with your family – because a lot of this has to do with that
[20] Ms Noland continues to express her distress over the situation and again is in tears. The house is further referred to.
[21] There is then a break in the recording. Ms Noland said she went to the lavatory and changed the battery in the recording device. While she was away, Mr Hurlimann read the email to which I have referred. It is not a lengthy email and I will quote it because of the references to making things right:
Your contacting me has brought up all the hurt as if it was done yesterday… a daily trial on my part to even get out of bed and continue my day without breaking down
I cannot stop my mind from going over and over this As I said once or twice before
I will not reward bad behaviour
If you think you can callously do what you have done and not think it has devastated me as you have stomped all over my heart leaving it constantly bleeding, then you are not thinking clearly – it surprises me you can sleep at night
Morally and ethically what you have done in the last 9 months is warped & wrong on so many levels, unless you are going to make things right, and therefore get peace in your heart and mine, then I have no reason to talk to you, see you or give you the time of day
When you have done the right thing and made things right let me know, and maybe then we can start communicating and you can TRY and make me understand why.
[22] The conversation resumes, and initially Mr Hurlimann talks about his situation at great length. He talks about his employment and his experiences with mental health professionals. He does not at this stage address his relationship with Ms Noland.
[23]After a while, Ms Noland brings the conversation back to their marriage:
Beverley
That’s good that you are learning new behaviours or new techniques, coz that was a bit (sic) issue with you, I mean how many fired (sic) did you put out through our marriage
Gavin
Too many
Beverley
Consisted of me following you round putting out so many fires
Gavin
Too many – and they were my fault
Beverley
And they were repeated
Gavin
I was a recidivist offender [42:45]
Beverley
You were, a repeat offender
Gavin
I was a repeat offender
Beverley
So you read the email
Gavin
Yeah
Beverley
And
Gavin
Um, I agree with everything you say I
Beverley
You can see where I was coming from
Gavin
Yeah yeah shit yeah
Beverley
And you understand why I cannot trust your word? And the proof is in the pudding and then maybe we can talk because you haven’t shown and proven to me my belief in you is, is not there it can’t be there, you give me no reason to believe otherwise
[24] From this point, Mr Hurlimann begins to address the relationship problems from his perspective. Again, the house is mentioned:
Beverley
But you were mean when the only communication I got was can you afford to pay me 50% of my equity in the house
Gavin
Yeah yeah
Beverley
On any communication that was it – what on earth, what was that about
Gavin
Okay – let me tell you
Beverley
Coz that was your next step
Gavin
Yes because I thought I’d lost you forever because of my own stupid actions, right – I mean the guilt that I felt was palpable
Beverley
Good
Gavin
Well it was palpable
Beverley
Good
Gavin
The guilt that I felt for the hurt that I inflicted on you right? Was, it was palpable. So I thought at the time right – now rightly or wrongly, in the end it turned out wrongly – but at the time rightly or wrongly I thought I’d lost you forever because of my own stupid actions ok – I’ve got a car, I’ve got a job but I ain’t got nothing, you know, I’ve got nothing well because I’ve lost you forever because of my own stupid fault. I might as well try and get some money out of you ok – this is the thing ok – this is my thinking, right, that’s what I was thinking because I had to leave and deservedly so, I got nothing, I might as well get some money – now it turned out to be the wrong thing to do.
[25] Shortly after this passage, Mr Hurlimann gives his motivation for contacting Ms Noland (I will emphasise in bold the most significant statements):
Gavin
Um… so you do want to know the reason why I called – you know you want to know don’t you
Beverley
I’d like to know what reaction you were expecting and in what warped world you thought that I would um I would run through the mist into your arms lovingly – yeah
Gavin
And say all is forgiven… yeah only in the movies hahaha
Beverley
Only in the movies! The really bad movies that you don’t watch
Gavin
I watched a vampire movie last night from start to finish, coz I read in the TV guide that it has 4 stars ok – movies are scored out of – 1 star to 5 stars. 1 Star means forget it don’t bother and 5 stars means don’t miss it and it got 4 stars and I love vampire movies so I watched the whole thing… and it was shit eh – this shit went on for almost two hours, it was dark it was brooding.. one of the vampires had depression, seriously have you ever heard of a vampire with depression? You turn the lights off for ten thousand years. The movie made me depressed – so anyway you want to know what? You want to know what I thought your reaction was
Beverley
What are you hoping to get out of all – I mean what is your point in re contacting me and in what universe do you think that I can react in any normal way shape or form to this right now
Gavin
Well its really simple right – it’s really simple ok and I don’t know any other way to say it but I’ll just say it ok, and this is part of the reason for my phone call – coz I was dead set to travel down on father’s day and just rock up to Shane and Mel’s place and walk in the door
Beverley
And the only reason I carried on talking to you was to stop you doing that because it was not what would have been a good idea. Because your dad was not even there
Gavin
Oh yeah and thank God you
Beverley
???? In the future by the way! Not to you – it was actually to say it was actually to let you know how where your dad was, that’s why
Gavin
Yeah yeah and thank goodness you told me coz that was going to be an extremely ugly scene eh?
Beverley
You would have made a “cause”
Gavin
Oh God yes! And thank you for telling me that dad and Enid weren’t there at all, wouldn’t I look a dick um… okay you ready? The reason I rang you on Father’s day – because I still love you and if I give you the money back, will you take me back [1:03:54]
(My emphasis)
Beverley
If you gave me the money back. But kept some to keep you on your feet – it would go a million miles to allow me to begin to start healing. It would show me that you are a man who can start to make amends for some of the things you’ve done. I won’t take you back [1:04:3] initially, I can’t, that’s just far too raw but it would certainly – proof is in the pudding, but it would certainly as I said to you before show me that, alright so it wasn’t all about the torture and the torment, and you have to learn to be patient and make amends in so many ways to so many people. But I’m not even saying all the money because you need to be able to stand on your feet and get yourself together – but I still don’t think you’re um – you haven’t proved to me yet that your word is your word. You are saying these things but you could be just saying everything I want to hear
(My emphasis)
Gavin
It will take time
Beverley
Of course, you’ve got to understand I can’t just drop my knickers for you –
Gavin
What
Beverley
I’m not going to drop my knickers for you and stand there and – no you know what I mean
Gavin
I don’t want you to – I don’t
Beverley
I don’t mean that, I don’t mean that, I mean in this way
Gavin
I don’t want you to
Beverley
That’s not what I meant I am not going to be charmed by you because I can’t trust where you are coming from
Gavin
Sure
Beverley
And you can understand you don’t deserve that trust – you have got to earn that trust back and it could be a long time coming. But yes if ‘you were to give that money back to my parents’ but keep some to get you on your feet because you do need something to keep you on your feet, it would go a long way. But I’ve always, and if you had talked to me in the beginning we would have already worked this one out because I knew you needed to become independent and stand on your own two feet. I said that to you in the very beginning. If you can be on the same footing as me – mentally emotionally and financially when we are both on our feet then we’ll start all over again and I said that the whole time we were in counselling
(Emphasis in transcript)
Gavin
Okay
Beverley
Not to my expense, not to my parents expense – this is just not right
Gavin
Okay
Beverley
You kissed me, you wedded me you bedded me and you fucked me right over – and you have taken away all trust and like, I will be honest with you you have taken away all trust, I cannot trust you
Gavin
And that’s fair comment and I would probably say, if I had done – if you had done to me what I have done to you
Beverley
I wouldn’t even be sitting here – you wouldn’t even let me in
Gavin
Let me finish
Beverley
Go on then
Gavin
If you had done to me what I have done to you then I would probably be saying the same thing – that I can’t trust you. Can’t trust you.
Beverley
Every time every time, this has nothing to do with you when I think of the support I have from my mum and dad even while dad’s going through what he’s been going through – and they sold a house to pay you, coz Dad said to me do you want to do, do you want to sell the house? What type of money – geeze ??? coz you were forcing me to sell the house – but yet you weren’t even around for me to negotiate with, can we wait a little bit so I can make the house worthy of getting it up --- you wouldn’t even get back to me for that, you wanted me to get as little as I could for the house, I’d be left on the street – anyway where was I in that – what hurts the most is my parents trying to support me by saying – whatever you want to do darling let me know. It’s not worth you killing yourself over, just whatever you do don’t worry about the money, we will get it somewhere, and at the 11th hour they got a buyer wanting to buy one of their units, well the only unit they’ve got. And this ?? that loan they gave to me. They had to take a loan out because they hadn’t got the money through from the house yet and they are still paying that loan and now they are going to go into a retirement village ???? And it was going to cost them the remainder of what they pay or they will be paying – that means they will have nothing, they will have nothing left in the bank – they have given that to me to ensure YOU get out of my life, not even that you get out of my life – to make it stop. They said if you need to fight it, don’t worry about it if you want to go to court don’t worry about it but I can’t, emotionally I couldn’t do it
Gavin
Well there is only so much you can take [1:09:26]
Beverley
I couldn’t take any more
Gavin
I know that now – I know that now
Beverley
You wouldn’t even turn up to court, you’d just leave it all to your fuck assed lawyer to go sit there for you and you would still sit there and do nothing. It was the fact that you know that I found it very hard about that home and you were still forcing me out of my own home, with that over inflated over 1900 dollars, really! I’m left holding a 400 thousand debt because I’m still paying the mortgage and you are sitting with 350 thousand in the bank and then you have the audacity on the phone to say do you know where I can buy a rain coat because I’ve finally got a bit of money in my pocket
Gavin
That was a bit unwise eh?
[26] It is shortly after this part of the conversation that Mr Hurlimann asks Ms Noland for her bank account. The process of transferring the money was not a short one. There were difficulties using a telephone to enter the data. Mr Hurlimann had to make up his mind how much to transfer and got Ms Noland to do some calculations for him so he would know how much would be left in his account after transferring $250,000. After a time, there is this exchange:
Gavin
Ok good fine – what I’m going to do tonight is I’m going to transfer
$250 thousand into your bank account ok – now [1:23:20] that will go in tonight, after 10
Beverley
You could have done that just then
Gavin
Well do it now then
[27] Mr Hurlimann and Ms Noland then worked together to try to make the transfer. It was difficult trying to do it with a telephone as opposed to a computer. Mr Hurlimann had Ms Noland inputting the necessary data:
Beverley
I’m just looking on your screen, from what account
Gavin
Aah
Beverley
From the 02
Gavin
Yeah from the 02
Beverley
So do I open the drawer or does it open on 02
Gavin
Can you open it up a bit – ok so, need a person or a company, right so make it put your name in there plus your account number, or name your accounts under – do you need the number
Beverley
01 0154… what do I do now so the amount
Gavin
Ok so put in 250 thousand
Beverley
25000 is that right 250 00.00
Gavin
Yep, now you need to go down the page
Beverley
Details on your screen
Gavin
Um, on my statement put organ donation
Beverley
Reference
Gavin
I don’t need a reference; down the page it will say something about details on your statement
Beverley
Details on my statement
Gavin
Your statement yeah – put whatever you want – um put on it
Beverley
Payback…
Gavin
Yeah payback will do so you know what it is
Beverley
Reference, non refundable [1:30:10]
..mumbling going through steps on the phone banking… next, shall I go next?
The payment may not be more than 5 thousand.
Gavin
Ahh shit, oh I know why that is
Beverley
To change the limit call 0800 blah blah or visit our branch
[28] Having found the transfer of $250,000 could not take place because of the limit on the account, Mr Hurlimann telephoned the bank’s call centre and engaged with the bank’s representative. The representative was, it would seem, Russian. Her name was “Olga”. Mr Hurlimann engaged with her in high spirits and somewhat inappropriately. The money was transferred. The conversation between Mr Hurlimann and Ms Noland immediately after the transfer is important for the resolution of the issues in this case:
Gavin [1:42:27]
So, ok now well that money’s in your account now Beverley
Beverley
Well – that’s um… I can’t say… I’m surp [shocked, mumbling]… I’m, I am very surprised
Gavin
You are surprised?
Beverley
I am surprised, I’m very surprised. I am surprised you did that – but I am very pleased, I’m very very pleased.
Gavin
You are surprised, what you talking about
Beverley
I am surprised you did that but I am very very pleased, I’m very very pleased
Gavin
It’s a small part of the journey of undoing the bad things I’ve done
– you’ve got to start somewhere right. Now that money there, that money it’s yours, to do with what you want with it [1:42:06] okay, it’s not my money now okay. So it’s up to you what you want to do with it
(My emphasis)
Beverley
And have you kept enough so that you can keep yourself comfortable and do whatever you need to do to get on your feet?
Gavin
Umm
Beverley
Need to be to earn interest rather than just blow it – it will be good
Gavin
I bet I’ve got enough there to – to win your heart back – and that’s all I care about
(My emphasis)
Beverley
You just need to have faith in you too, a lot of healing to do
(My emphasis)
Gavin
I know I know but I’ve got the patience of a saint
[29] The meeting continued for some time with general discussion about matters of common interest, including how the discord between them had affected extended family members. This caused Mr Hurlimann to refer to his transfer of the money:
Beverley
No that’s it that’s the only thing I can tell you because I don’t even know about their rift with the rest of the family coz I’ve learned my lesson of Chinese whispers will do what it does and it causes more – I don’t talk about you to anyone either, it’s like the fact that I’ve been in contact with you. It was actually Richard who picked that up – and then Lorraine and you know..
Gavin
Now I hope, you don’t have to – but I do hope you tell these people that I’ve just given you a quarter of a million dollars because I love you Beverley and I always have loved you [Gavin cried – long silence] [1:54:20] ok, here’s the thing, if you want to go to – couples counselling with Val, I am happy to go. I’m not saying give me an answer now I’m saying it’s something thing about it.
(My emphasis)
[30] And later:
Gavin
Well no one can blame you Beverley, I wouldn’t have liked living with me if I was you
Beverley
It wasn’t that I didn’t love you
Gavin
I know
Beverley
It was that I couldn’t cope
Gavin
I know
Beverley
I had nothing left
Gavin
Well all I can say is I am sorry and this is the road to undo the wrong I have done, it’s all I can do
(My emphasis)
[31] As the conversation continues, Mr Hurlimann addresses his relationship with the other woman:
Gavin
If it’s helpful. Are you listening, if it’s helpful, last night she slept on the couch in the lounge and I said to myself – this is awesome
Beverley
What what you have with her is different, because you understand each other from the space you are in, you can’t be double dipping.
Gavin
I am not double dipping, and you are not going to be the other woman or my mistress or anything right, my mission – listen my mission, is to woo your heart back and extricate myself from this relationship that I have unwittingly stumbled into – what a mission that’s gonna be, but I’m up for it
(My emphasis)
[32] Later there is this exchange:
Beverley
I think I need the dust to settle a bit now
Gavin
I don’t mind if you chastise me, berate me whatever you feel like doing because I can take it – because I know that I did wrong – and I’m trying to undo it and it’s not going to be undone overnight – right, it’s gonna take time [extremely noisy background]
Beverley
I think number 1, let the dust settle. I feel – I’m still a bit shell shocked, and I probably won’t actually realise until I get up tomorrow and think on what just happened
Gavin
¼ of a million dollars in your bank
Beverley
Well how did it feel, you had a ¼ of a million dollars in your bank for a while too
Gavin
I had over $300k in my bank
Beverley
Yeah I know. So how did it feel – like blood money
Gavin
No, it felt nothing because if someone said to me here is $300 thousand and here’s Beverley, you chose (sic) I would have chucked the $300 thousand away, because I would rather have the girl [2:10:24] – yeah honestly I would rather have the girl – so anyway –
[33] Somewhat later in the conversation there is this exchange:
Gavin
What do you think they are gonna say when you say to them that I just gave you a quarter of a million dollars?
(Emphasis in transcript)
Beverley
Gavin just paid back most of what he got, they would be extremely surprised – but I think pleasantly so – I think pleasantly so
Gavin
It’s like I said, I’d rather have the girl Beverley than the money, the money means nothing – do remember you used to say to me years ago, you know I wouldn’t mind if we were stranded on a desert island together – as long as we had each other
[34] Ms Noland continues to make it clear to Mr Hurlimann that the transfer of the
$250,000 was not a panacea for their relationship. Mr Hurlimann seems to understand that:
Gavin
Coz I am taking a risk – and there’s no guarantees, but for me, I’m weighing up the risk reward and the reward is worth the risk. For me anyway
Beverley
But I know you haven’t got patience
Gavin
I have got patience
Beverley
Well 2 years was too long you said
Gavin
The only thing I will ask you is, don’t tell me about other guys [2:43:41]
Beverley
Oh ok, no I won’t do that – it’s none of your business anyway – and what I need to do and keep well and happy
Gavin
Yeah yeah sure that’s fine just don’t tell me, but rest assured there’s no physical action with me and Pauline
Beverley
But even if there was, that’s up to you what you need to do – you know what I mean, it’s none of my business, we aren’t married
Gavin
No I know that – but I’m going to do whatever I can to win your heart back alright – so I’ve got to figure out a way to extract myself from this – relationship. It’s like I said I don’t love her, I’m not in love with her, I like her, I’m in like with her – and that’s all. There is no need to be jealous or anything like that ok
[35] The recording finishes a short time later with general discussion.
The subsequent relationship
[36] I am satisfied that during the weeks and months following the restaurant dinner, both Mr Hurlimann and Ms Noland tried to reconcile. They were soon back on familiar terms and resumed a sexual relationship. They never lived together but Ms Noland went back to giving Mr Hurlimann considerable assistance with the way he lived his life. However, this was not enough for Ms Noland who, from her perspective, thought Mr Hurlimann had not changed and the reasons that led to her separating from Mr Hurlimann in the first place persisted in their cogency.
[37] In September 2016, Ms Noland called an end to the relationship, advising Mr Hurlimann that she had become romantically involved with another man. It was shortly afterwards that Mr Hurlimann demanded the return of the $250,000.
Does Ms Noland hold the $250,000 on resulting trust?
[38] Mr Perese for Mr Hurlimann submits Ms Noland holds the $250,000 on a resulting trust arising out of Mr Hurlimann’s intention or presumed intention. He refers to the often quoted passage from Lord Browne-Wilkinson:2
[Where] A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer...
[39] Mr Perese then refers to the rationale for a resulting trust expressed by the Court of Appeal in Chang v Lee:3
[20] The rationale for a resulting trust is that, absent evidence to the contrary, the law presumes a person intends to retain the beneficial ownership of funds which he or she advances towards the purchase price of a property. The legal owner holds title to the property subject to the payer’s equitable interest. In this way a trust results to the payer to the extent of his or her contribution. Evidence which might contradict or rebut the presumption is
2 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL) at 708.
3 Chang v Lee [2017] NZCA 308, [2017] NZAR 1223.
traditionally of an intention to gift or of consideration in the nature of satisfaction of independent indebtedness, both of which Fogarty J rejected here.
[40] Mr Perese submits Ms Noland gave no valuable consideration for the transfer of money and it is clear she cannot, in equity, keep it. Mr Hurlimann impulsively paid the money to advance the prospect of reconciliation with no intention of making an outright transfer.
[41] Mr Perese addresses Ms Noland’s position that this was simply a gift of money by submitting that if it were, it was a conditional gift in much the same way that an intending groom might give an intending bride an engagement ring in contemplation of their marriage. He cites Stone v Scaife (No 2).4
[42] I look first at the evidence of Mr Hurlimann. In his evidence-in-chief, he says he transferred the money “as an act of good faith as I understood there would be no reconciliation unless I returned the $250,000 to her”. He says he never described the money as a gift. He refers to emails exchanged between himself and Ms Noland the day after the restaurant meeting. One, from Ms Noland, reads:
Good night to you too. I’ve had an amazing stress free, heartache free day today. Mum and dad very pleased even if surprised at the latest news. Gobsmacked I’d say would be a more appropriate word. But we are all thankful to the Lord for his part in all this in answering our prayers.
I slept well and awoke with a smile [emoji] all is well with the world. [emoji] hope your bruises are healing.
[43] In cross-examination, Mr Hurlimann denied it was his idea to pay the money to Ms Noland. He says he thought Ms Noland was hinting that he could make things right if he did repay the money. During cross-examination, Mr Hurlimann was referred to, and read out in Court, the passage of the transcript quoted at [25] and beginning, “If you gave me the money back”. He was then asked:
Q.Would you agree, Mr Hurlimann, that Ms Noland was making it clear that by just giving the money back to her would not mean that she was going to get back with you or to reconcile with you, a lot more was required before that could possibly be achieved?
A. What I infer from your client, Mr Stewart, was that by returning a substantial portion of the money to your client as an act of good faith
4 Stone v Scaife (No 2) [1944] NZLR 704 (SC).
that that would really put me in the good books so it would be like starting fast and then accelerating. That’s what I got from the conversation.
Q.But she wasn’t saying that she would take you back by simply paying the money to her, was she?
A. She didn’t say, “If you pay me back the money I'll take you back,” she didn’t say that.
[44] Mr Hurlimann was then referred to, and read out, the passage of the transcript quoted at [25] and beginning, “And you can understand you don’t deserve that trust”. Mr Hurlimann was then asked:
Q.Would you agree, Mr Hurlimann, that what she’s saying in summary is that you needed to earn the trust back and that that’s going to take some time before she could consider taking you back or reconciling with you?
A. That’s what she’s indicating, yes, yes. The reality’s something different, though.
Q. Well, her words were pretty clear, weren’t they, that a lot more had to happen than simply paying the money back?
A. Oh, that’s right, Mr Stewart, but talk’s cheap.
Q.And part of the passage, in fact the last sentence you read out, talked of you both being put on the same footing mentally, emotionally and financially, so that you could start all over again. Would you agree that what she’s saying is that that had to be achieved before she would take you back – it wasn’t just about the money?
A.That’s, yeah, that’s indicating to me that it’s not just about the money but it was a pretty loaded comment from your client.
[45] Mr Hurlimann denied that he ever considered the payment a gift. He was referred in cross-examination to the portion of the transcript quoted at [28] and beginning, “It’s a small part of the journey of undoing the bad things I’ve done – you’ve got to start somewhere right”. The following exchange occurred:
Q.Mr Hurlimann, you are clearly saying, are you not, that the monies paid to Ms Noland are a gift, you don’t place any conditions on it, you recognise that a lot of water’s got to go under the bridge to establish whether or not you're going to reconcile or not?
A. No, it was never considered a gift. If somebody asks you for something, Mr Stewart, and you give it to them, it can hardly be termed a gift.
Q. Well, you tell Ms Noland that it’s not your money now?
A. Yeah.
Q. “It’s for you to do what you will with it.”?
A. Yeah, and like I said, talk is cheap. We say things sometimes that we regret. I’m sure you’ve said some things in your lifetime you wish you hadn’t said.
Q.But you clearly didn’t regret making that statement at the time, did you?
A. At the time I didn’t regret it, yeah.
Q.At the time you were more than happy to give the $250,000 to Ms Noland, weren’t you?
A. At the time, Mr Stewart, I was in a vulnerable position and your client could’ve asked me to do anything and I would’ve done it. Your client knew that, she knew I was vulnerable and I was fragile.
[46] Mr Hurlimann’s position can be summarised overall in the following exchange in cross-examination:
Q.So that statement, along with the earlier statements that I’ve drawn your attention to, I put it to you, Mr Hurlimann, made it very clear that you were giving the money to Ms Noland that night, you weren’t expecting it to be paid back?
A.I was expecting, I was expecting to reconcile with your client, Mr Stewart, hence the reason why I transferred the money from my account to her account, as an act of good faith and I also say in the transcript, and it’s on the audio recording, “I’d rather have the girl than the money.” But now I can’t have the girl so I’ll have my money back thanks.
Discussion
[47] The law allows a person to make a gift of money to another person. No consideration is required. If a person voluntarily, and for reasons of his own, makes a gift of property or money to another person, intending by doing so to part with ownership of the property or money, then that is what he achieves.
[48] In order to displace the presumption of a resulting trust, satisfactory evidence of a contrary intention must be produced to rebut it.5 The nature of the evidence required will differ according to the circumstances of the case, although evidence as to the intention of the transferor will of course be highly relevant.6 The acts and declarations of each party involved in the transaction are examinable.7 In Chang v
5 Bateman Television Ltd (in liq) v Bateman [1971] NZLR 453 (CA) at 463; see also Westdeutsche Landesbank Girozentrale v Islington London Borough Council at 708.
6 Crampton-Smith v Crampton-Smith [2011] NZCA 308, [2012] 1 NZLR 5 at [41] and [43].
7 Bateman Television Ltd (in liq) v Bateman at 463.
Lee, the question was phrased as whether in the absence of an agreement between the parties as to the terms of the transfer the transferor “intended to part with beneficial ownership through payment of the funds”.8
[49] The issue here is whether, in all the circumstances, the payment of the $250,000 was an outright gift or whether it was conditional on a permanent reconciliation being achieved.
[50]In my view, the payment was a gift by Mr Hurlimann to Ms Noland:
(a)Mr Hurlimann acknowledged he had no moral entitlement to the money. However, he very much wanted to reconcile with Ms Noland.
(b)Mr Hurlimann contacted Ms Noland at or around the date Ms Noland’s solicitor made the transfer of funds to Mr Hurlimann’s solicitor. In my view, this was not coincidental. Mr Hurlimann knew he now had a lever to move Ms Noland towards reconciliation.
(c)It was Mr Hurlimann who linked payment of money to the beginning of a process of reconciliation. At first, it was a straight offer (“The reason I rang you on Father’s day – because I still love you and if I give you the money back, will you take me back[?]”). Ms Noland did not accept the offer. She made it clear that if money were paid it would be a big start, but much more would need to occur (“If you gave me the money back. But kept some to keep you on your feet – it would go a million miles to allow me to begin to start healing. It would show me that you are a man who can start to make amends for some of the things you’ve done. I won’t take you back initially, I can’t, that’s just far too raw but it would certainly … show me that, alright so it wasn’t all about the torture and the torment, and you have to learn to be patient and make amends in so many ways to so many people”).
8 At [21].
[51] There is no doubt Mr Hurlimann understood he could not buy a reconciliation. However, he never linked the payment of the money to there being a reconciliation. After the transfer had been made, Mr Hurlimann said explicitly:
It’s a small part of the journey of undoing the bad things I’ve done – you’ve got to start somewhere right. Now that money there, that money it’s yours, to do with what you want with it okay, it’s not my money now okay. So it’s up to you what you want to do with it.
[52] In my view, this passage exactly expresses Mr Hurlimann’s position with regard to the transfer of the money. It is consistent with everything he did and said subsequently, including in declarations he made to Work and Income in which he described having “gifted” the money to Ms Noland. It was only, in 2016, when Ms Noland finally ended the relationship that he asked for the money back.
[53] A resulting trust requires intention on the part of the transferor that he or she retain some connection with the transferred property as opposed to making an outright gift. This intended connection does not need to be the survival of a proprietary interest in the property; a beneficial interest founded in equity may suffice. As the Court of Appeal said in Chang v Lee:
[27] All that is required, where the terms of the advance are not agreed, is to apply the presumption of equitable ownership in the acquired property… The principle does not require a further gloss in the circumstances of this case by refining the purpose of advancing the money to acquisition of a proprietorial interest. We repeat that a resulting trust takes effect once it is established that the settlor did not intend to part with beneficial ownership of the contribution… Whether conceptualised as a presumption of non- beneficial transfer or as a response to an absence of consideration, the law of resulting trusts provides an equitable remedy where an injustice would otherwise result.
(Citations omitted and emphasis added)
[54] In the circumstances, I am satisfied that Mr Hurlimann by his conduct effectively severed himself from any beneficial interest in the $250,000 and that he intended to do so.
[55]Mr Hurlimann does not succeed on his first cause of action.
Was the payment a result of an unconscionable bargain?
[56] The second cause of action focuses on Mr Hurlimann’s mental health difficulties. Those difficulties were known to Ms Noland and the unconscionability is said to arise from Ms Noland’s knowledge of Mr Hurlimann’s mental vulnerability such that it is unconscionable for her to retain the money.
[57] I have difficulty seeing any sort of bargain in the facts of this case. There is no specific pleading other than the following:
21. On 14 September 2015 prior to the voluntary payment set out at paragraph 10 hereof the Defendant promised the Plaintiff that their relationship may resume if the Plaintiff was to make a voluntary payment of part of the give (sic) $250,000 to her as set out in paragraph 13 hereof.
[58] Mr Stewart, for Ms Noland, acknowledges that, really, the issue is whether Mr Hurlimann’s mental health made the payment unconscionable either because it was unrealistic for Mr Hurlimann to hope for a reconciliation or because it would be unconscionable to characterise the transfer as a gift.
[59] Mr Hurlimann has the onus of proof of linking his mental health problems to his payment of the money. He did not give evidence-in-chief as to any such linkage. He simply said Ms Noland was well aware of his mental health issues and he provided the Court with his medical records. He also called to give evidence a psychiatrist, Dr Finucane. However, Dr Finucane’s evidence is very limited. He interviewed Mr Hurlimann for one hour on 11 July 2017 and then had him complete a personality assessment inventory. With that assistance, and having read the medical records, the doctor says:
41. In my opinion, there are sufficient features of brain injury present to indicate there has probably been personality change due to the combination of solvent exposure and repeated (cumulative) mild TBI, and that as a result Mr Hurlimann has become impulsive, with impaired judgment and poor planning.
[60] In cross-examination, Mr Hurlimann goes no further than to say he was in a vulnerable position, that Ms Noland could have asked him to do anything and he would have done it, and that Ms Noland knew he was vulnerable and fragile.
[61] Mr Stewart helpfully made up for lack of evidence in this area in his further cross-examination of Mr Hurlimann:
Q.The fact you were feeling pretty good, were you not, at the period when you first contacted Ms Noland in September of 2015? Well if you can go back to the –
A. Was I feeling pretty good when I first contacted your client?
Q. Were you feeling good at that time?
A. Oh, average, yeah average.
Q. Butit would be fair to say that you weren’t feeling any anxiety or signs of depression at that time?
A. No I was, I was experiencing bouts of depression, bouts of anxiety. Hence the reason why I contacted your client, or one of the reasons, one of the driving reasons.
Q.Because we’ve already referred earlier of course to the text that you sent Ms Noland the day after the Denny’s meeting which appears at page 182 where you recorded you had the best few hours of your life and subsequent emails confirm that you were in a very good state at that particular time.
A. Absolutely.
Q.In fact you state that the time at Denny’s were the best few hours of your life.
A.Absolutely. But let’s look at the flip side, Mr Stewart. If your client had said, “I am not interested in any reconciliation whatsoever, happy for you to pay for dinner but that’s it,” you probably would have seen
– it probably would have been recorded as a very black moment for me.
[62] The principles underlying unconscionable bargains were comprehensively outlined by Arnold J in the Court of Appeal decision, Gustav & Co Ltd v Macfield Ltd.9 I outline the relevant ones:
(a)Equity will intervene to relieve a party from the rigours of the common law in respect of an unconscionable bargain.
(b)The jurisdiction does not operate to rescue foolish parties from entering into hard bargains, but rather seeks to protect those under a significant disability or disadvantage from exploitation.
9 Gustav & Co Ltd v Macfield Ltd [2007] NZCA 205 at [30]; these comments were endorsed by the Supreme Court on appeal in Gustav & Co Ltd v Macfield Ltd [2008] NZSC 47, [2008] 2 NZLR 735 at [6].
(c) Such a disadvantage does not arise from an inequality in bargaining power, but rather is a condition or characteristic which significantly reduces a party’s ability to assess their best interests. Characteristics likely to constitute disadvantage include ignorance, lack of education, illness, age, mental or physical infirmity, stress and anxiety. But, of course, such will depend on the circumstances of the case.
(d)Once a qualifying disadvantage is established, the question is whether it would be unconscionable for the stronger party to take the benefit of the bargain.
(e)The stronger party must know of the weaker party’s disadvantage and “take advantage” of it. Such knowledge may be actual or constructive, and may be imputed to the principal from an agent.
(f)Taking advantage of the disadvantage encompasses both the active extraction and passive acceptance of the benefit.
(g)If these conditions are met, the burden falls on the stronger party to show that the transaction was fair and reasonable.
[63] The matter was put more concisely by Tipping J in Bowkett v Action Finance Ltd:10
… there must be circumstances which are either known or which ought to be known to the stronger party in which he has an obligation in equity to say to the weaker party: no, I cannot in all good conscience accept the benefit of this transaction in these circumstances either at all or unless you have full independent advice.
[64] Whether the doctrine of unconscionable bargains could extend to gifts was recently considered by Moore J in Willis v Thompson.11 His Honour cited two Australian decisions in support of the proposition that it could.12
10 Bowkett v Action Finance Ltd [1992] 1 NZLR 449 (HC) at 457.
11 Willis v Thompson [2017] NZHC 1645, [2017] NZAR 1448.
12 Louth v Diprose (1992) 175 CLR 621 and Wilton v Farnworth (1948) 76 CLR 646.
[65]The following comments in Louth v Diprose, cited by Moore J, are germane:13
[Where] it is proved that a donor stood in a specially disadvantageous relationship with a donee, that the donee exploited the disadvantage and that the donor thereafter made a substantial gift to the donee, an inference may, and often should, be drawn that the exploitation was the effective cause of the gift. The drawing of that inference, however, depends on the whole of the circumstances.
…
Once it is proved that substantial property has been given by a donor to a donee after the donee has exploited the donor’s known position of special disadvantage, an inference may be drawn that the gift is the product of the exploitation. Such an inference must arise, however, from the facts of the case; it is not a presumption which arises by operation of law. The inference may be drawn unless the donee can rely on countervailing evidence to show that the donee’s exploitative conduct was not a cause of the gift. At the end of the day, however, it is for the party impeaching the gift to show that it is the product of the donee’s exploitative conduct. This is the final and necessary link in the chain of proof of unconscionable conduct leading to a decree setting aside the gift.
[66] Justice Moore then went on to conclude:
[58] … the weight of authority and academic opinion favours applying the doctrine to gifts as well as to bargains. I agree with the logic that the presence of consideration, modest as it may be, should not limit the application of a doctrine grounded in unconscionability. The purpose of this equitable remedy is to prevent an unconscionable use of power arising out of the particular circumstances and conditions affecting the relevant parties. To restrict the operation of this doctrine to contractual dealings has the potential to exclude those most deserving of its remedial application.
…
[60] I acknowledge there is something of a conceptual awkwardness in applying the phrase “fair, just and reasonable” to gifts because, by definition, a donor is not seeking anything in return. But this point may in fact demonstrate equity’s greater readiness to intervene where the relevant disposition is a gift rather than property exchanged for value. If a claimant is able to establish under the doctrinal criteria that it would be unconscionable for a donee to accept a gift, the donee will be unlikely to discharge its burden of showing the transaction to be fair, just and reasonable. In other words, the task of persuading the Court to uphold an unconscionable transaction is likely to be more difficult for a volunteer than a contracting party.
13 At 631-632.
[67] I agree with Moore J’s analysis insofar as the equitable doctrine of unconscionability extends to gifts. However, I do not think this helps Mr Hurlimann’s cause.
[68] I have concluded Mr Hurlimann has not discharged the onus of satisfying me on the balance of probabilities that his mental health issues so affected him at the time he transferred the money to Ms Noland that it would be unconscionable for her to retain it. There is evidence of Mr Hurlimann’s mental health issues but no real linkage of the effects of those issues to his behaviour at the time of the restaurant dinner.
[69] In my view, Mr Hurlimann very much wanted to reconcile with Ms Noland, and knew that by returning a very significant part of the money she had paid to him the door would open to a possible reconciliation. It might be there was an element of impulsiveness to this. It might be that a more prudent person would not simply have paid the money unconditionally. However, in the context of the relationship between Mr Hurlimann and Ms Noland, it was not an irrational act.
[70]Mr Hurlimann does not succeed on the second cause of action.
Was the payment obtained by deceit on the part of Ms Noland?
[71] Mr Perese relies on the judgment of the Court of Appeal in Amaltal Corporation Ltd v Maruha Corporation.14 He cites the relevant principles as being:
(a) A false representation (as to a past or existing fact) made by a defendant who knew it to be untrue or had no belief in its truth or who was reckless as to its truth;
(b)Intention that the claimant should have acted on the representation; and
(c)Action by the plaintiff in reliance on the representation.
14 Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA).
[72] This cause of action fails at the beginning. There was no false representation by Ms Noland. Indeed, there was no representation at all other than an acknowledgement that if the money were paid, that would be a first step towards an uncertain process of reconciliation. The most that Mr Perese can point to is encouragement by Ms Noland and Mr Hurlimann’s unrealistic belief he could meet Ms Noland’s prerequisites:
If you can be on the same footing as me – mentally emotionally and financially, when we are both on our feet then we’ll start all over again and I said that the whole time we were in counselling.
[73] Even taking the view of these statements most favourable to Mr Hurlimann, they cannot amount to a misrepresentation for the purposes of the tort of deceit. Such misrepresentations are confined to past or present facts.15 The representations by Ms Noland upon which Mr Hurlimann seeks to rely are purely prospective. Essentially, they are: “If you do this, I might do that.” The learned authors of The Law of Torts in New Zealand write that representations of fact are distinguished from statements which are purely promissory or predictive in character.16 This position is buttressed by the following obiter comments of the Court of Appeal in Kerridge v Kerridge:17
[47] … the difficulty [is] that the alleged false representation made by Mr Kerridge in 2000 was a representation about the future: Mr Kerridge alleges that her husband represented that something would later happen. It is an element of the tort of deceit that the misrepresentation relied upon by the existing plaintiff must be as to past or existing fact … By the very nature of that aspect of her claim that there was deceit as to future conduct, Mrs Kerridge will face difficulties at trial establishing that Mr Kerridge’s allegedly deceitful representation was false at the time he made it. But those are issues of proof, and do not inform the strike-out question.
[74] Ms Noland’s statements to Mr Hurlimann, upon which he says he relied to his detriment, were all based on future action. Moreover, even if I were to find that Ms Noland’s promises were an affirmation of her state of mind or intentions at the time of the dinner with Mr Hurlimann and therefore representations of an existing fact, I would not consider them to be false. That is because at no stage did Ms Noland say
15 Amaltal Corporation Ltd v Maruha Corporation at [47].
16 Stephen Todd “Deliberate Falsehoods” in The Law of Torts in New Zealand (7th ed, Thompson Reuters, Wellington, 2016) 811 at 814.
17 Kerridge v Kerridge [2009] NZCA 14, [2009] 2 NZLR 763.
that she intended to enter into a permanent relationship with Mr Hurlimann in the event that the money was returned. All that was suggested was that it would be a first step towards reconciliation which might resolve with them resuming their relationship. As it happened, this resumption did occur for a time. Ms Noland did not indicate in any way that she intended a reunion with Mr Hurlimann, if it did transpire, to be permanent. In that sense, I do not consider her statements to have been false.
[75]It follows that Mr Hurlimann also fails on the third cause of action.
Outcome
[76]I have found on the facts that Mr Hurlimann intended to gift Ms Noland the
$250,000, hoping it would lead to a long-term reconciliation. I do not find that Mr Hurlimann’s mental health issues make the retention of that gift by Ms Noland unconscionable. I have no doubt Ms Noland welcomed the payment and felt it was fair for Mr Hurlimann to make it. However, she did not in any way mislead him. Indeed, Ms Noland made it very clear to Mr Hurlimann that payment of the money would be one step, albeit an important step, in beginning a difficult process of healing their relationship. The actions of both parties in the months after the transfer of the money showed genuine attempts to reconcile, which ultimately proved unavailing. That was the risk Mr Hurlimann took. There was never any deceit practised by Ms Noland.
[77]Mr Hurlimann’s claims are dismissed.
[78] As to Ms Noland’s counterclaim, that was effectively admitted. Mr Perese, at the outset of the trial, accepted the money claimed by Ms Noland had been advanced by way of loan and remained outstanding. There was a question as to whether proper demand had been made, but that falls away given the debt has long been the subject of a counterclaim in this proceeding. It follows that I enter judgment on the counterclaim against Mr Hurlimann in the sum of $6296.
[79]Ms Noland is entitled to interest in the usual way.
Costs
[80] Ms Noland is entitled to costs. I am inclined to award them on a 2B basis. I will receive memoranda from the parties no later than 15 working days from the date of delivery of this judgment.
Brewer J
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