Auckland ex-husband loses Court of Appeal bid for $250k against former wife

Gavin Hurlimann said he'd rather have the girl than the money. But when he couldn't have the girl he went to court to reclaim $250,000. Photo / Supplied

An ex-husband paid his former wife $250,000 in a bid to win her back then took her to court to recoup the money when she found another partner.

The ugly divorce has culminated in the man losing his financial claim, despite accusing the West Auckland woman of exploitation and deceit.

The sorry saga features a secret recording, attempts to rekindle their lost love and the former wife's discovery of her ex-partner in bed with another woman.

A just-released Court of Appeal judgment says Beverley Anne Noland paid Gavin John Hurlimann $305,902 in September 2015 as part of a relationship property settlement after the pair separated in 2012 following 12 years of marriage.

The amount represented a half share of the Massey family home.

The couple, who had run a foreign exchange trading company together, retained "amicable contact". But after Noland discovered Hurlimann in bed with another woman in January 2015, she applied to have the marriage dissolved.

She was "shocked and very angry" when Hurlimann then claimed an interest in the matrimonial home, which was Noland's 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.

"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."

Just 11 days after Noland made the payment, she met Hurlimann for dinner at a restaurant at which he sought a reconciliation.

During that dinner Hurlimann transferred $250,000 into Noland's bank account in a bid to win her back.

"Unbeknownst to Mr Hurlimann ... Ms Noland taped the conversation which took place at that restaurant," the judgment says.

"Those tapes were played in the High Court. Copies of texts and emails exchanged in the days prior to that meeting were also [used] in evidence."

Beverley Noland spent $100,000 defending a claim against her for $250,000 from her ex-husband following their marriage breakup. Photo / Supplied

The pair tried to reconcile, resuming a sexual relationship but not living together.

"But in September 2016, Ms Noland advised Mr Hurlimann she had become romantically involved with another man and no longer wished to continue any relationship with him. That prompted Mr Hurlimann to demand the return of the $250,000."

Hurlimann argued the sizeable payment had been made at Noland's request "to enable a reconciliation to be achieved".

"It was an implied term of payment that if the parties did not reconcile, Ms Noland would return the $250,000 to Mr Hurlimann."

Hurlimann also argued that due to an earlier brain injury suffered as a kickboxer, and solvent exposure due to work as an automatic spray painter, he suffered from impaired judgment and poor planning, leading him to make "impulsive decisions".

He had also suffered from depression and anxiety.

Noland had promised their relationship might resume if he made the payment and it was "in reliance on that promise" that Hurlimann transferred the $250,000 to her account, the court heard.

As the attempted reconciliation was unsuccessful, the payment represented an "unconscionable bargain", Hurlimann argued.

He also claimed Noland had taken advantage of his mental health issues, acted deceitfully and made false or reckless representations. "Equity" called for the money to be repaid.

"Because of Ms Noland's deceit, Mr Hurlimann was entitled to the return of the payment."

A judge rejected Hurlimann's arguments, finding he had "no moral claim to the money" and that it was he who linked the $250,000 payment to a reconciliation process in a bid to win back his ex-wife.

At first it was a straight offer.

Gavin Hurlimann returned $250,000 to his ex-partner in a bid to win her back. Photo / Supplied

"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?" Hurlimann had said.

"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."

Hurlimann had also told Noland: "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."

Additionally, he made declarations to Work and Income as having "gifted" the money to Noland, a description the judge ultimately agreed with.

"He had paid it to clear the bad feeling that had arisen when he made his claim to Ms Noland's home from a former relationship.

"That gift was not conditional: it had not been made on terms that required its return if a reconciliation was not achieved."

The judge ruled there was "an element of impulsiveness" in Hurlimann's actions.

"It might be that a more prudent person would not simply have paid the money unconditionally."

Another judge put it this way: "Objectively, it can be said to have been foolish."

In appealing the findings, Hurlimann's lawyer argued that Noland had taken advantage of his client's mental illness which caused him to act irrationally.

It was therefore unconscionable for her to keep the money.

Under cross examination, Hurlimann said: "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."

However, the Court of Appeal ruled the payment was a gift made in the context of a loving relationship, albeit one that had broken down.

"In our view he knew [reconciliation] was not guaranteed; he made the payment in the hope that would occur."

Quoting an earlier case about gifts made during courtship, the court said: "If his adventure never prospers at all, because the lady never accepts him, such gifts are not recoverable."

The court found Noland's actions did not constitute undue influence over a vulnerable ex-partner and she was entitled to keep the money.

In a footnote, the court said the phrase "'all is fair in love (and war)' springs to mind".

Speaking to the Herald, Noland said she was happy to have moved on thanks to her faith and strong family support.

"You go into a marriage thinking it's the love of your life and it's going to be forever. But fairy tales don't always end the way you hope they would."

She had spent $100,000 on lawyers' fees defending the case.

"The only ones who make money are the lawyers."

Hurlimann could not be reached for comment.