HURLIMANN v NOLAND [2020] NZCA 42

HURLIMANN v NOLAND [2020] NZCA 42 [9 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA554/2018[2020] NZCA 42BETWEEN GAVIN JOHN HURLIMANNAppellantAND BEVERLEY ANNE NOLANDRespondentHearing: 6 August 2019Court: Clifford, Mallon and Moore JJCounsel: S I Perese for AppellantB M Stewart and K N Sabine for RespondentJudgment: 9 March 2020 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant is to pay the respondent costs for a standard appeal ona band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] On 3 September 2015 the respondent, Beverley Noland, paid the appellant,Gavin Hurlimann, $305,902 pursuant to their relationship property settlement. Thatpayment principally represented Mr Hurlimann's entitlement to a one-half share in thefamily home. Some 11 days later, in circumstances to which we return, Mr Hurlimannpaid $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 refusedto do so. She said the money was a gift she was entitled to keep.[2] Mr Hurlimann subsequently sued Ms Noland in the High Court for the returnof that money. He said it had not been an outright gift. Rather, given the circumstancesin which he had paid it back to Ms Noland, it was held by her for him on a resultingtrust, or because its payment represented an unconscionable bargain, or because it hadbeen paid as a result of deceit by Ms Noland. Brewer J declined Mr Hurlimann's claimon each of those grounds.1[3] Mr Hurlimann now appeals.Background2[4] 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 sometime went to relationship counselling.[5] On 8 January 2015, Ms Noland discovered Mr Hurlimann in bed with anotherwoman. This led to her applying for an order for the dissolution of the marriage.[6] Ms Noland was shocked, and very angry, when Mr Hurlimann responded byclaiming an interest in her home. The matrimonial home was Ms Noland's home froma previous marriage. When Mr Hurlimann moved in with Ms Noland before theirmarriage he would appear to have given some form of oral assurance he would nevermake a claim against it.3 Ms Noland resented bitterly having to borrow money fromher parents to pay Mr Hurlimann the $305,902 which Ms Noland was compelled toconcede he was entitled to under relationship property law.1 Hurlimann v Noland [2018] NZHC 2251.2 We draw this summary from Brewer J's decision, noting that the Judge's narrative was notchallenged in any material way on appeal.3 Although Mr Hurlimann said he could not recall doing so, he acknowledged in cross-examinationit was "highly probable" he had done so, and that he had to agree he had because Ms Noland hadrecorded his assurance in a diary note. Brewer J found as a fact that Mr Hampton had given thatassurance: at [5].[7] Some 11 days after making the payment, on 14 September 2015, Ms Nolandand Mr Hurlimann met, at Mr Hurlimann's initiative, for dinner at a restaurant.Mr Hurlimann was seeking a reconciliation. Unbeknownst to Mr Hurlimann,although nothing in particular turns on this for our purposes, Ms Noland tapedthe conversation which took place at that restaurant, as she had other callspreceding that meeting. Those tapes were played in the High Court. Copiesof texts and emails exchanged in the days prior to that meeting were also inevidence. It was during the course of that dinner that Mr Hurlimann transferredthe $250,000 to Ms Noland's bank account.[8] After that payment Ms Noland and Mr Hurlimann did try to reconcile: theywere, in fact, soon back on familiar terms and resumed a sexual relationship, althoughthey never lived together. But in September 2016, Ms Noland advised Mr Hurlimannshe had become romantically involved with another man and no longer wished tocontinue any relationship with him. That prompted Mr Hurlimann to demand thereturn of the $250,000.The High Court decisionMr Hurlimann's causes of action[9] Mr Hurlimann's three causes of action may be summarised as follows:(a) Resulting trustAt all material times Mr Hurlimann had wanted to reconcile with Ms Noland.The payment of the $250,000 was made at Ms Noland's request, on the basisit would enable a reconciliation to be achieved. It was an implied term ofpayment that if the parties did not reconcile, Ms Noland would return the$250,000 to Mr Hurlimann.(b) Unconscionable bargainAt the time of that payment, and due to an earlier brain injury, Mr Hurlimannsuffered from impaired judgement and poor planning. That led him to makeimpulsive decisions. Since 2009, moreover, he had been suffering from"somatisation, anxiety, depression, and anxiety-related disorders". Ms Nolandwas aware of those matters. Before Mr Hurlimann made the repayment,Ms Noland promised that their relationship might resume if he did so. It wasin reliance on that promise that Mr Hurlimann made that payment.The attempted reconciliation was unsuccessful. In those circumstances, thepayment of the $250,000 represented an unconscionable bargain. Ms Nolandhad taken advantage of Mr Hurlimann's mental health issues and equity calledfor the repayment of that amount to Mr Hurlimann.(c) DeceitThe understandings reached between Mr Hurlimann and Ms Noland before thepayment constituted representations of fact made by Ms Noland. Thoserepresentations were false when made. Ms Noland acted deceitfully: she knewthem to be false, or made them recklessly. She made them to induce thepayment. By making that payment, Mr Hurlimann relied on them to hisdetriment. Because of Ms Noland's deceit, Mr Hurlimann was entitled to thereturn of the payment.The Judge's findings[10] The factual conclusions the Judge reached on the resulting trust claim werealso central to his rejecting Mr Hurlimann's other claims. We therefore summarisethem out here.4(a) Mr Hurlimann acknowledged he had no moral entitlement to themoney. However, he very much wanted to reconcile with Ms Noland.(b) Mr Hurlimann contacted Ms Noland at or around the date Ms Noland'ssolicitor made the transfer of funds to Mr Hurlimann's solicitor.In the Judge's view, this was not coincidental. Mr Hurlimann knew henow had a lever to move Ms Noland towards reconciliation.4 Hurlimann v Noland, above n 1, at [50]–[51].(c) It was Mr Hurlimann who linked payment of money to the beginningof 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 andif I give you the money back, will you take me back[?]"). Ms Nolanddid not accept the offer. She made it clear that if money were paid itwould be a big start, but much more would need to occur.(d) There was no doubt Mr Hurlimann understood he could not buy areconciliation. Moreover, he never linked the payment of the money tothere being a reconciliation.[11] The Judge saw the following statement by Mr Hurlimann after the transfer hadbeen made as significant:It's a small part of the journey of undoing the bad things I've done — you'vegot to start somewhere right. Now that money there, that money it's yours, todo with what you want with it okay, it's not my money now okay. So it's upto you what you want to do with it.The Judge said:[52] In my view, this passage exactly expresses Mr Hurlimann's positionwith regard to the transfer of the money. It is consistent with everything he didand said subsequently, including in declarations he made to Work and Incomein 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 themoney back.[12] Reflecting that view of the evidence, the Judge reasoned Mr Hurlimann hadnot intended to retain beneficial ownership of the money.5 Rather it had been a giftfrom Mr Hurlimann to Ms Noland. He had paid it to clear the bad feeling that hadarisen when he made his claim to Ms Noland's home from a former relationship.That finding rebutted the presumption equity makes that a voluntary payment ofmoney gives rise to a resulting trust. Moreover, that gift was not conditional: it hadnot been made on terms that required its return if a reconciliation was not achieved.5 At [51]–[54].[13] There was no unconscionable bargain, as the payment was not considerationfor a bargain in the first place.6 Nor had the payment been made in circumstanceswhich made its retention by Ms Noland unconscionable. Mr Hurlimann had notestablished his mental ill-health had caused him to make an irrational and impulsivedecision. Whilst there was evidence of mental health issues, no real linkage had beenestablished between the effects of those issues and Mr Hurlimann's behaviour at thetime the payment was made.7[14] In rejecting Mr Hurlimann's claim in the tort of deceit, the Judge reasonedMs Noland had not made any representation as to past or existing fact. All she haddone was acknowledge that, if the money were paid, that would be a first step towardsan uncertain process of reconciliation.8[15] The Judge concluded:[69] In my view, Mr Hurlimann very much wanted to reconcile withMs Noland, and knew that by returning a very significant part of the moneyshe had paid to him the door would open to a possible reconciliation. It mightbe there was an element of impulsiveness to this. It might be that a moreprudent person would not simply have paid the money unconditionally.However, in the context of the relationship between Mr Hurlimann andMs Noland, it was not an irrational act.[76] I have found on the facts that Mr Hurlimann intended to giftMs 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 ofthat gift by Ms Noland unconscionable. I have no doubt Ms Noland welcomedthe payment and felt it was fair for Mr Hurlimann to make it. However, shedid not in any way mislead him. Indeed, Ms Noland made it very clear toMr Hurlimann that payment of the money would be one step, albeit animportant step, in beginning a difficult process of healing their relationship.The actions of both parties in the months after the transfer of the moneyshowed genuine attempts to reconcile, which ultimately proved unavailing.That was the risk Mr Hurlimann took. There was never any deceit practisedby Ms Noland.6 At [57].7 At [68]–[69].8 At [72].Mr Hurlimann's appeal[16] In arguing Mr Hurlimann's appeal, Mr Perese did not pursue the assertions ofresulting trust or of deceit. Nor did he focus on whether the payment was a bargain ora gift. Rather he submitted that, however the payment was categorised, it would beunconscionable for Ms Noland to retain it or any part of it. The main reason for thatwas the Judge had been wrong not to find that Mr Hurlimann was suffering frommental illness that caused him to act irrationally and impulsively, and that Ms Nolandknew, and took advantage of, that.[17] In asking us to take that approach, Mr Perese emphasised the gist ofMr Hurlimann's claim. That was, given:(a) Mr Hurlimann's clear wish to reconcile with Ms Noland and tore-establish the permanent relationship they once had had; and(b) Mr Hurlimann's mental vulnerability, which Ms Noland knew of; and(c) that Ms Noland had knowingly created a false hope of such areconciliation and had exploited that false hope by tellingMr Hurlimann the key to him achieving that was the payment of the$250,000 and encouraging on the spot, as it were, to make that payment,it was unconscionable that she should be allowed to keep that money.AnalysisThe legal context[18] The overlapping claims Mr Hurlimann made in the High Court influenced theway Brewer J considered the issue. Given the way this appeal was argued, we thinkthe law of gifts provides the appropriate framework for our analysis. Put simply,Mr Hurlimann gave the $250,000 back to Ms Noland. But that does not mean hecannot be entitled to its return. Moreover through the law of undue influence, as itapplies to gifts, the unconscionability Mr Hurlimann asserts — including as based onthe mental health issues Brewer J recognised — can in our view best be analysed.[19] Turning, then, to the law of gifts. A gift is a gratuitous transfer of propertybetween living persons, donor and donee, and not by the donor in expectation of death.A gift is a one-way transfer of value, often made in recognition of intangible valuessuch as love and affection, or charitable concerns. A bargain, by contrast, is a self-interested transaction, a free exchange of value between parties who are assumed tobe able to act in their own best interests.[20] Being gratuitous, equity's suspicion is aroused. That is, except where apresumption of advancement arises, the donee must prove that an apparent gift wasintended as such. A presumption of advancement arose, as relevant here, to apparentgifts between husband and wife. Section 4(3) of the Property (Relationships) Act 1976abolished the presumption of advancement, as well as the presumption of resultingtrust between spouses, civil union partners and de facto partners. Given the dissolutionof Ms Noland and Mr Hurlimann's marriage, no such presumption could in any eventarise between them. Ms Noland must therefore first satisfy the Court the apparent giftof the $250,000 was indeed intended as such.[21] If the status of the payment of the $250,000 as a gift is established,Mr Hurlimann can nevertheless claim its return on two bases:(a) First, that it was a conditional gift, and the condition failed. That wasthe argument Brewer J considered at [49] and following of hisjudgment. That is, was the gift conditional on a permanentreconciliation being achieved?(b) Secondly, that although an unconditional gift, it had been only beenmade because Ms Noland had unduly influenced Mr Hurlimann.As The Laws of New Zealand summarises:959. Fraud and undue influence. Donors, even thoughsui juris, are entitled to set aside their gifts if induced by fraud,coercion or undue influence, for the donee must not profit byhis or her own wrong. The influence arising from relationsexisting between the parties must not be abused Wherethere is a relationship of trust and confidence, and9 Tim Blennerhassett Laws of New Zealand Gifts (online ed) (footnotes omitted).inexplicably large gifts are made, the presumption of undueinfluence will be rebuttable only by proof of full, free andinformed thought on the part of the donor.[22] Whilst being cross-examined in the High Court, Mr Hurlimann in fact madeboth of those claims:(a) To the proposition he had made it very clear he was giving the moneyto Ms Noland, and that he did not expect it to be paid back,Mr Hurlimann replied:I was expecting, I was expecting to reconcile with yourclient, Mr Stewart [counsel for Ms Noland], hence thereason why I transferred the money from my account toher account, as an act of good faith and I also say in thetranscript, and it's on the audio recording, "I'd ratherhave the girl than the money". But now I can't have thegirl so I'll have my money back thanks.(b) To the proposition that he had willingly given the money, Mr Hurlimannresponded:You must understand my position was very, veryvulnerable, okay? Your client had all the power. If yourclient had said to me, "I will only consider reconcilingwith you if you set yourself on fire," I would've done it,just to prove how earnest I was. At the time, Mr Stewart, I was in a vulnerable positionand your client could've asked me to do anything and Iwould've done it. Your client knew that, she knew I wasvulnerable and I was fragile.A gift?[23] We are satisfied that Brewer J was right when he concluded the payment wasintended as a gift. It was made gratuitously: that is it was not made to procure anexchange of valuable consideration. It was made in the context of a lovingrelationship, albeit one that had broken down. It was made to clear away the mutuallyunderstood bad feeling that had arisen on Ms Noland's part because of the claimMr Hurlimann had made to the matrimonial home, and the way in which that claimhad been pursued. Mr Hurlimann hoped it would lead to a reconciliation withMs Noland and the re-establishment of a permanent relationship.A conditional gift?[24] Certain gifts have traditionally been regarded as presumptively conditional.One such category was gifts given in contemplation of marriage. Such gifts were tobe returned if the marriage did not eventuate. Although contracts of marriage are nolonger possible, certain aspects of the old law survive. Thus s 8 of the DomesticActions Act 1975 now provides:108 Property disputes arising out of agreements to marry(1) Where the termination of an agreement to marry gives rise to anyquestion between the parties to the agreement, or between 1 or bothof the parties to the agreement and a third party, concerning the titleto or possession or disposition of any property, any such party may, inthe course of any proceedings or on application made for the purpose,apply to the court for an order under this section.(3) Subject to subsection (6), on any such application the court shall makesuch orders as it thinks necessary to restore each party to theagreement, and any third party, as closely as practicable to the positionthat party would have occupied if the agreement had never been made.[25] This Court in its 1987 decision of Oliver v Bradley described the DomesticActions Act as providing, where an agreement to marriage is terminated, an alternativeremedy to that under the law of constructive trusts.11 As recently as 2014 s 8 ofthe Domestic Actions Act was relied on to order the repayment of the value of giftsgiven in contemplation of marriage by a prospective husband to a prospective wife.12[26] But the common law drew a sharp distinction between hopeful romantic giftsand those given in expectation of marriage. In a 1944 decision the High (thenSupreme) Court cited a very old case to illustrate that principle:13 the defendant cannot have back any, if any, gift made to the plaintiff inorder to recommend himself to her, to help on his courtship, and to induce herto agree to marry him. These, as Lord Hardwicke put it in Robinson vCumming, are the gifts of "an adventurer" who "if he will run risks and losesby the attempt, he must take it for his pains." If his adventure never prospersat all, because the lady never accepts him, such gifts are not recoverable.Neither are gifts made at this early "adventuring" stage recoverable if,10 The principal purpose of the Domestic Actions Act 1975 was to abolish contracts to marry: s 5.11 Oliver v Bradley [1987] 1 NZLR 586 (CA) at 590.12 Zhao v Huang [2014] NZHC 132, [2014] NZFLR 782.13 Stone v Scaife (No 2) [1944] NZLR 704 (SC) at 708; quoting Robinson v Cumming (1742) 2 Atk409, 26 ER 646 (Ch).although the donor thereafter emerges from the status of mere adventurer andattains the status of an accepted suitor, he ultimately does not attain the statusof husband. Neither can he recover back gifts made after the engagement ifthey were purely personal gifts, not subject to any express or impliedcondition. But as to gifts made in anticipation of marriage — that is to say,which both parties knew were being made and received in the expectation thatthey would continue to enjoy such gifts jointly after their marriage — then, inmy opinion, when the marriage fails for such reasons as this marriage hasfailed, such gifts must be given back.[27] Thus here it might be said Mr Hurlimann could be seen as returning the$250,000 to Ms Noland in contemplation of reconciliation and ultimate (re)marriage.Mr Perese did not suggest there was here a mutual contemplation of marriage. On theevidence, he could not. But this was, he suggested, the "area" we were in.[28] To an extent, we agree. That is, we do not think it would be appropriate hereto place Mr Hurlimann in the position of the hopeful "mere adventurer". That is, andas we have already analysed in upholding the Judge's conclusion the payment wasmade by way of gift, it was paid and received as part of a shared understanding that itmight open the parties to a reconciliation. To that extent, it could be said to beconditional. That is, if having received the money Ms Noland had then said toMr Hurlimann she was going to have nothing more to do with him, and had not — asshe clearly was — been prepared to try and re-establish a relationship, Mr Hurlimannwould have been on stronger ground to say that the condition on which the gift wasmade had failed. But that is not the factual position here. Ms Noland honoured theunderstanding on which the gift was made. It did help her to put aside her hurt at theterms on which the relationship property settlement had been made, including asinvolving the need for her parents to borrow money they could ill afford, and enabledher to make the necessary payment to avoid the matrimonial home being sold. But wethink it is also clear that Mr Hurlimann did not condition the gift on a reconciliationbeing achieved. In our view, he knew that was not guaranteed; he made the paymentin the hope that would occur. Thus, to the extent the gift might be said to beconditional, the condition did not fail.A conditional gift made because of undue influence?[29] Through the doctrine of undue influence equity intervenes to protect the weakagainst the strong as a matter of public policy in the context of relationships which, bytheir very nature, are seen as providing an occasion for undue influence.[30] Undue influence may be actual or presumed. Presumed undue influence arisesout of a relationship between two parties where one person has acquired over anothera measure of influence, or ascendency, of which the ascendant person then takes unfairadvantage. The typical case is where one person places trust in another to look afterher affairs and interests, and the latter betrays that trust by preferring her own interests.It is clear that the relationship between Mr Hurlimann and Ms Noland at the time ofthe payment was not one which gave rise to a presumption of undue influence.[31] Actual undue influence does not depend upon a pre-existing relationshipbetween the two parties, though it is most commonly associated with and derived fromsuch a relationship. The party who alleges actual undue influence must proveaffirmatively that she entered into the impugned transaction, here a gift, not of her ownwill but as a result of actual undue influence asserted against her. She must show thatthe other party to the transaction had the capacity to influence her, that the influencewas exercised, that its exercise was undue and brought about the transaction, and that,in the result, she had been taken advantage of.14 Domination is not necessary.[32] Whether actual undue influence was exercised is a question of fact.15 To theextent where it is established one of the parties to the relevant relationship wasmentally impaired in a way which materially affected their behaviour, that may wellbe relevant for the Court's assessment whether or not to set aside the impugnedtransaction.[33] The proposition that Mr Hurlimann was unduly influenced by Ms Nolandwhen he made the gift of $250,000 conditional on Ms Noland's willingness to try tore-establish their failed relationship best summarises what we understood to be14 J Stephen Kós "Undue Influence" in Andrew Butler (ed) Equity and Trusts in New Zealand (2nded, Thomson Reuters, Wellington, 2009) 679 at 681.15 See Halsbury's Laws of England (5th ed, 2014, online ed) vol 77 Equitable Jurisdiction at [19].Mr Perese's basic argument in this appeal. When considering the relevance ofMr Hurlimann's mental health issues as recognised by Brewer J, that proposition alsoreflects Mr Perese's submission of unconscionability.[34] Those mental health issues were, in the High Court, relied on inMr Hurlimann's unconscionable bargain cause of action. We infer that approach wasadopted given the role the concept of disadvantage plays in the doctrine ofunconscionable bargain. The vulnerable party's inability to advance their own bestinterests — demonstrated by the imbalance of the bargain agreed to — reflects whatis termed a "disadvantage".[35] The decision to do so may also reflect that the relationship betweenMr Hurlimann and Ms Noland in September 2016 is not of the type which traditionallyfeatures in undue influence cases.[36] The Judge was prepared to proceed on the basis that the doctrine ofunconscionable bargain applies to gifts as well as bargains.16 That is not the viewthis Court has traditionally taken. In Contractors Bonding Ltd v Snee the traditionalview was described thus:17Judges and commentators have drawn attention to the close relationshipbetween the equitable principles relating to undue influence andunconscionable bargains, but the doctrines are separate and distinct: a plea ofundue influence attacks the sufficiency of consent; a plea that a bargain isunconscionable invokes relief against an unfair advantage gained by anunconscientious use of power by a stronger party against a weaker.[37] We agree. That distinction is based on the underlying differences between apayment made as consideration for a bargain, and a gift. A gift is, after all, a one-waytransfer of value, often made in recognition of intangible values such as love andaffection, or charitable concerns. A bargain is a self-interested transaction, a freeexchange of value between parties who are assumed to be able to act in their own bestinterest. The concept of disadvantage disrupts the contractual theory. The concept ofundue influence disrupts the theory of voluntary, selfless giving. Having said that, we16 Hurlimann v Noland, above n 1, at [67].17 Contractors Bonding Ltd v Snee [1992] 2 NZLR 157 (CA) at 165 (citation omitted).also think in many instances it may be a legal distinction which does not give rise toan actual difference in outcome.[38] The evidence here, particularly of the texts, emails and transcribedconversations, in our view shows the vulnerability that individuals in the position ofMr Hurlimann and Ms Noland have to each other when a relationship of marriage orits equivalent has broken down. The sense of loss, disappointment and hurt pride needonly to be stated to be recognised. That vulnerability is not unlike the similarvulnerability that can exist in the early stages of a relationship, where one party hashigh hopes before any shared expectation of permanence has arisen. That aspect ofhuman relationships is in our view the explanation for the reasonably robust approachthe law takes, to use the somewhat outdated description of Lord Hardwicke, to thegifts of an adventurer. The phrase "all is fair in love (and war)" springs to mind.[39] Here, however, Mr Hurlimann says he suffered from the additional effects anddisadvantages of his mental health issues. That illness, Mr Perese submitted, madeMr Hurlimann likely to make impulsive and irrational decisions: Ms Noland knew thatand exploited it. That is, the argument on appeal is Ms Noland's influence was unduebecause of Mr Hurlimann's vulnerability as the party hoping for a reconciliation, andbecause of his tendency caused by his mental illness, said to be known to Ms Noland,to make impulsive and irrational decisions to his disadvantage.[40] So the question is was the Judge wrong not to find that Ms Noland in factexercised actual undue influence?[41] By our assessment, the evidence, in particular the evidence of the texts,transcribed voice messages and recorded conversations as set out extensively in theHigh Court's decision, does not support a conclusion that Ms Noland was doing so.[42] That evidence does show in reasonably graphic terms the dynamic of therelationship between the two: particularly, and by Mr Hurlimann's own admission,because of the impact of his discovered relationship with another woman when, fromMs Noland's perspective, they were still endeavouring to reconcile; likewise because,as also recognised by Mr Hurlimann, of the impact on Ms Noland of the claim he madefor a share in the family home, notwithstanding his acknowledgement prior to themarriage that (taken at its highest) he would never make such a claim; and because ofthe way that claim was pursued.[43] We accept the genuineness of Ms Noland's reaction to Mr Hurlimann'srelationship property claim. As the Law Commissions' review of the Property(Relationships) Act noted, one of the key issues raised during the public consultationwas the ongoing acceptability of the requirement for partners to share pre-relationshipproperty "simply because it is used by them as the family home".18 Ms Noland's upsetreflects that concern. Notwithstanding, a number of matters need to be borne in mind.[44] Some 12 years had passed since the parties had commenced their relationship.They had lived in the home throughout that time. It is difficult to be certain as toprecisely what Mr Hurlimann might have said, or the circumstances in which thatcommunication took place. The requirements of the Property (Relationships) Act forcontracting out of its property dispositions or settling claims for those dispositionsreflect, as the Law Commission recently observed, "social legislation aimed atensuring a just division of property between partners who may be in unequalbargaining positions".19[45] It could fairly be said that if Ms Noland wished to ensure Mr Hurlimann couldnot make a claim on the house, she needed to enter into a relationship propertyagreement. To be enforceable, such an agreement would have had to have been inwriting, signed, witnessed by a lawyer, and independent legal advice would have hadto be given to both parties. In the absence of such an agreement Mr Hurlimann was,as a result of the relationship, entitled to an equal share of the relationship property,including the family home.[46] Following the end of their relationship, he and Ms Noland entered into asettlement agreement regarding that entitlement, each having received independentlegal advice. The terms of the agreement were clear. It was expressed to be bindingon the parties in all circumstances including "separation (whether on one or more18 Law Commission Review of the Property (Relationships) Act 1976 (NZLC R143, 2019) at [3.22].19 At [13.3].occasions) [or] reconciliation". The parties acknowledged that its provisions were"just, fair and reasonable".[47] Seen in that light, Mr Hurlimann's decision, just a week after he had receivedthe proceeds of that settlement, to return the larger portion of it to Ms Noland is, atleast, surprising. Objectively, it can be said to have been foolish. It reflects hisvulnerability as the party wishing, against Ms Noland's resistance, to revive therelationship. In the relationship property legislation, New Zealand law todayrecognises that vulnerability in the way it mandates equal sharing and structures thedecision-making required for a different approach. That distinguishes Mr Hurlimann'sposition from that of the "adventurer" recognised in the old cases.[48] But, and having said that, in our view Ms Noland's evidence confirms herreluctance, after the marriage dissolution, to re-engage with Mr Hurlimann.As regards the payment, and as we have already said, the most she can be seen to havedone is to have acknowledged that it would go a way to restoring the balance betweenthem, and to preparing the way for her to agree to engage positively withMr Hurlimann with a view to a possible reconciliation. We acknowledge there wasemotional weight in the way Ms Noland conveyed her upset with Mr Hurlimann forclaiming what she had later accepted he was legally entitled to. That weight did, inour view, bear on him and the decision he made. By the same token, when faced withhis demand for the return of the payment, Ms Nolan was no doubt also mindful thatshe had, as she had said she would, embarked on a process of reconciliation possiblyleading to a renewed, permanent, relationship. Taken overall, in that context, andabsent any question of specific vulnerability because of mental illness, Ms Noland'sactions did not constitute undue influence or an unconscionable retention of thereturned monies.[49] We therefore turn to the significance of the evidence of Mr Hurlimann's mentalhealth issues.[50] There were two main sources of that evidence:(a) Medical notes going back to 2002.(b) A report provided by Dr Finucane, a psychiatrist, based primarily onMr Hurlimann's self-reporting to Dr Finucane during a one-hourexamination. That report concludes with the following opinion:In my opinion, there are sufficient features of brain injurypresent to indicate there has probably been personality changedue to the combination of solvent exposure [fromMr Hurlimann's work as a automotive spray painter for 10years after leaving school at the age of 16] and repeated(cumulative) mild TBI [traumatic brain injuries suffered as akickboxer], and that as a result Mr Hurlimann has becomeimpulsive, with impaired judgement and poor planning.[51] In his evidence-in-chief, Dr Finucane acknowledged the difficulty he had indrawing any firm conclusions, however, as to the significance of those possible braininjuries in September 2015. In cross-examination, Dr Finucane also acknowledgedthat the same problem existed as regards determining the significance, if any, of thebehaviours he diagnosed in 2017 relative to Mr Hurlimann's condition inSeptember 2015.[52] In these circumstances, it is difficult for us to go further than recording ourassessment that Dr Finucane's opinion provides little support for Mr Hurlimann'sclaim that a material mental impairment adversely affected his decision-makingfunction in September 2015.[53] Mr Perese did, on Mr Hurlimann's behalf, urge us to review the evidence foundin the medical notes. Noting that we have not had expert evidence to assist us ininterpreting those notes, we have however done as requested. Those notes provideevidence, understandable to a layperson, that Mr Hurlimann had been suffering from,and had been treated for, depression and anxiety in the years preceding the breakup ofhis relationship with Ms Noland. Little more can be said, in the absence of expertassistance, as to the significance of those conditions for the decision Mr Hurlimannmade to give the $250,000 back to Ms Noland.[54] We are not persuaded, therefore, the Judge erred in the way Mr Hurlimann saidhe had.Result[55] We dismiss Mr Hurlimann's appeal accordingly. Costs will be payable byMr Hurlimann to Ms Noland on a band A basis for a standard appeal and usualdisbursements.Solicitors:Saseve Solicitors, Auckland for AppellantSimpson Western, Auckland for Respondent