BOLTON V AUCKLAND DISTRICT LAW SOCIETY HC AK CIV-2006-404-3312

BOLTON V AUCKLAND DISTRICT LAW SOCIETY HC AK CIV-2006-404-3312 26 October 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-404-3312BETWEEN MELVILLE JOHN BOLTON Plaintiff AND AUCKLAND DISTRICT LAW SOCIETY Defendant Hearing: 24 October 2006 Appearances: Plaintiff M.J. Bolton in person P. Collins for Defendant Judgment: 26 October 2006 at 3.00pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00pm on the 26 th day of October 2006.JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL Introduction[1] In these proceedings the plaintiff seeks an order setting aside a settlement agreement concluded between the parties at a Judicial Settlement Conference on 6 April 2005. [2] Before me is an application by the defendant to strike out the whole of the plaintiff's pleading upon the grounds that the pleadings disclose no reasonable cause of action and are an abuse of the process of the Court. [3] The strike out application is opposed by the plaintiff.Preliminary Issue[4] Before dealing with the background facts, before me a preliminary matter arose. [5] In submissions from counsel for the defendant, he contended that this proceeding had been commenced irregularly with the plaintiff, a self-represented litigant, filing a combination of a "Notice of Application to Set Aside Settlement" and a Statement of Claim. The plaintiff suggests that the "Notice of Application" suggests that it is an originating application under r458D High Court Rules. He says this is improperly brought. [6] To make matters clear, however, the defendant notes that the strike out application relates to the whole of the plaintiff's pleading in whatever form, including his "Notice of Application to Set Aside Settlement". [7] I make no further comment concerning the claim that the plaintiff's proceeding has been commenced irregularly. As will appear later in this judgment, from the overall conclusion I have reached, this matter is of little moment.Background Facts[8] I turn now to consider the background facts to this matter. [9] The present proceeding is the second of two interconnected proceedings issued by the plaintiff against the defendant. The general background to the plaintiff's current proceeding is best understood by reference to the factual background set out in the Judgment of Justice Heath dated 14 July 2005 in the earlier proceeding Bolton v Auckland District Law Society & Others (HC AK, CIV-2004- 404-6908) in the following way:Introduction(1) Mr Bolton has brought judicial review proceedings arising out of a complaint made to the Auckland District Law Society about the conduct of a law practitioner who acted for him and his wife in2000. In short, his complaint focussed on an alleged failure by the solicitor to process an application for legal aid in a timely manner, and to advise adequately as to the applicability of the Crown charge in the circumstances of the case. (2) Relief is sought against the Office of the Lay Observer ("the Lay Observer"), the Disputes Tribunal and the District Court, settlement having been achieved with the Auckland District Law Society. (3) Prior to settlement with the District Law Society, the relief sought against both the Society and the Lay Observer was based on alleged deficiencies in the investigative processes used to examine Mr Bolton's complaint. (4) Mr Bolton, believing that his complaint had not been properly addressed, decided to sue the solicitors in the Disputes Tribunal to recover the $1,500 subject to the Crown charge. The claim was brought by both Mr and Mrs Bolton. The claim was based on negligence on similar grounds to those considered as part of the Law Society's disciplinary functions. The Tribunal had jurisdiction to entertain the claim as one based on the implied term of a contract of retainer to exercise proper skill and care: see s10(1)(a) Disputes Tribunals Act 1988. (5) The Disputes Tribunal dismissed the claim. A subsequent appeal to the District Court was also dismissed. (6) Mr Bolton seeks judicial review of both the Tribunal's and the District Court's decisions based on alleged failure to address his claims properly.Settlement with the Auckland District Law Society(7) Settlement with the Auckland District Law Society was effected on 6 April 2005, following a settlement conference over which Associate Judge Abbott presided. Settlement was confirmed and directions given by Wild J on 23 May 2005. (8) The settlement involved payment of a sum of money to Mr Bolton with a denial of liability on the part of the Society. The Society expressly recorded that the settlement related to disciplinary issues and did not address claims against the solicitors for negligence. (9) Mr Bolton elected to proceed with the claim for judicial review against the Lay Observer, the Disputes Tribunal and the District Court, notwithstanding his settlement with the Auckland District Law Society.[10] In the event, the parties which had not settled with the plaintiff Mr Bolton, the Lay Observer, the Disputes Tribunal and the District Court, were successful in that proceeding CIV-2004-404-6908 in having the plaintiff's claim against them struck out. The present proceeding before this Court is concerned only with thedefendant Auckland District Law Society. It is effectively an attempt to re-litigate the outcome of the earlier proceeding by having the judicially sanctioned settlement agreement set aside. [11] In completing the factual summary, reference needs to be made to the settlement agreement itself. This was a hand-written agreement entered into at a Judicial Settlement Conference presided over by Associate Judge Abbott on 6 April 2005. The terms of this settlement agreement were:Background (1) The plaintiff (Mr Bolton) and the first defendant (ADLS) have participated in a judicial settlement conference today, before His Honour Associate Judge Abbott. They have agreed on terms by which the plaintiff's application for judicial review will be settled in respect of the first defendant. (2) The terms of that agreement are recorded here. Agreement (3) ADLS will provide a letter to the plaintiff in the form of the attached draft. (4) ADLS will pay the plaintiff the sum of $1,500 within 14 days of the date of this agreement. (5) The provision of the letter in (3) above and the payment money in (4) will constitute a full and final settlement of the judicial review application and any other claims or complaint by the plaintiff against the first defendant arising out of or in connection (with) his earlier complaint against the practitioner Geraldine Ryan. (6) Upon receipt of the letter and the money the plaintiff will provide a signed Notice of Discontinuance of this judicial review proceeding against ADLS. (7) The terms of this settlement are strictly confidential to the parties. (8) Although Mrs Bolton is not a party to this proceeding, she was the person making the initial complaint to ADLS, which was the subject of the judicial review application. Accordingly she agrees to be bound by this settlement. (9) This settlement is agreed without any acknowledgement of liability or reviewable error by ADLS.[12] The Minute from Associate Judge Abbott from the settlement conference referred to the parties' agreement in these terms:They have recorded that agreement in their attached settlement agreement and seek to have their agreement recorded as a formal order of the Court; and I direct that the matter be referred to the Duty Judge for formal approval of the settlement. I take this approach out of an abundance of caution having regard to the decision Reid v New Zealand Fire Service Commission (1995) PRNZ 550. I recommend that the settlement agreement be approved.[13] Subsequently, the letter contemplated in paragraphs 3 and 5 of the settlement agreement was provided to the plaintiff in the agreed form, and the sum of $1,500 was paid to him. [14] A Notice of Discontinuance was then filed, which read:As a result of a binding settlement agreement between the plaintiff and the first defendant, the plaintiff hereby discontinues this proceeding against the first defendant. No orders for costs are sought by either party.The Plaintiff's Present Claim[15] In December 2005 the plaintiff Mr Bolton apparently filed an application in the earlier proceeding CIV-2004-404-6908 seeking an order to set aside the settlement agreement. That step, however, was not open to him, because the proceeding against the then first defendant (ADLS) had been discontinued – see r476A. This position was confirmed in a Minute issued by Associate Judge Abbott on 3 February 2006, and that application was confirmed as having been dismissed. [16] The present entirely fresh proceeding represents the plaintiff's subsequent attempt to set aside the settlement agreement. In bringing this proceeding, the plaintiff is effectively attempting to reverse the settlement agreement and consent order which resolved the 2004 proceeding, and also to re-litigate that earlier proceeding. [17] The substance of the present proceeding seems to be set out in the plaintiff's "Notice of Application to Set Aside Settlement" in the following way:Upon the grounds that a certain term in the (settlement) agreement was that the first defendant (ADLS) provide the plaintiff with a letter clarifying thematters at issue, such as would allow matters at issue to be revisited in the Disputes Tribunal. That the letter did not have this effect and accordingly that the parties were mistaken as to the efficacy of the letter provided by the first defendant.[18] In similar fashion, the key pleading in the plaintiff's Statement of Claim seems to be set out at paragraph 17 in the following way:At the Settlement Conference, the plaintiff made it plain and it was understood by ADLS, that the letter of clarification had to be sufficient for the plaintiff to proceed with the Judicial Review and to have the erroneous Disputes Tribunal decision annulled – with the $1,180 held by the Court, being then paid back to the plaintiff – that being the logical outcome expected instead of ADLS making good that sum directly. When the plaintiff expressed doubts that the Letter was sufficient and was unwilling to sign a Settlement, he was assured by both ADLS and the presiding Judge that legally trained minds would understand the Letter's meaning, enabling the desired outcome. As a direct consequence, the plaintiff signed the settlement, having regard also for the Court's time.[19] The purported causes of action noted in the plaintiff's Statement of Claim are "breach of natural justice" and "contractual mistake". And, the remedies sought by the plaintiff in his Statement of Claim are:(a) That the settlement with ADLS be set aside. (b) That the sum of $1,180 (being the amount of $1,000 plus collection costs) [ordered to be paid by the plaintiff to the firm of solicitors concerned] wrongly awarded against the plaintiff by the Disputes Tribunal, be made good to the plaintiff by ADLS. (c) Costs of and incidental to these proceedings.[20] Although in his pleadings the plaintiff refers to a "breach of natural justice", before me the parties accepted that this was not an application for judicial review in terms of the Judicature Amendment Act 1972. The claim essentially seeks to set aside the settlement and consent order, and to obtain reimbursement of the $1,180 costs awarded against the plaintiff by the Disputes Tribunal. [21] It was accepted by both parties, therefore, that in terms of the jurisdiction question noted in Reid v New Zealand Fire Service Commission (1995) 8 PRNZ 550, as an Associate Judge I had jurisdiction to hear the present strike out application. Matters proceeded on that basis.Counsel's Arguments and My Decision[22] The present strike out application is brought pursuant to r186 High Court Rules, which states:Without prejudice to the inherent jurisdiction of the Court in that regard, where a pleading - (a) Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (b) Is likely to cause prejudice, embarrassment, or delay in the proceeding; or (c) Is otherwise an abuse of the process of the Court,— the Court may at any stage of the proceeding, on such terms as it thinks fit, order that the whole or any part of the pleading be struck out.[23] Where it is asserted that no reasonable cause of action is disclosed, the principles applicable for strike out are well settled and summarised in Attorney- General v Prince and Gardner [1998] 1 NZLR 262 (CA). They were explained in that case by Justice Richardson at page 267 in the following way:A striking out application proceeds on the assumption that the facts pleaded in the Statement of Claim are true. That is so, even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings, the causes of action must be so clearly untenable that they cannot possibly succeed (R. Lucas & Son (Nelson) Mail Ltd v O'Brien[1978] 2 NZLR 289 at pages 294-295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pages 316-317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield Young & Ellis [1983] NZLR 37 at page 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield Young & Ellis).[24] From this, the key principles are: a) It is to be assumed that the facts pleaded are true. Notwithstanding this, an important qualification arises to the effect that the Court is not required to assume the truth of a pleaded allegation which appears entirely speculative and without foundation – Collier v Pankhurst(unreported, Court of Appeal, 6 September 1999, CA136/97);b) The cause or causes of action must be so clearly untenable that they cannot possibly succeed; c) The jurisdiction is to be exercised sparingly and only in clear cases where the Court is satisfied that it is proper to do so. [25] Turning now to the abuse of process ground for strike out set out in r186(c), here it must be shown that the proceedings amount to a misuse of the Court's processes. It is a category difficult to define, but from the authorities it includes attempts to re-litigate matters already determined in various ways, proceedings stemming from improper motive such as an ulterior purpose of securing collateral advantage beyond that which the law offers, and abuse of process through delay – see McGechan on Procedure para HR186.05. [26] Recently in Chamberlains v Lai [2006] NZSC 70 the Supreme Court discussed this issue. There, Elias CJ said:[61] The circumstances in which proceedings may amount to an abuse of process are varied. Lord Diplock in Hunter referred to the power to strike out for abuse of process as: 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would in my view be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the Court has a duty (I disavow the word discretion) to exercise this salutary power.'And:[63] In New Zealand abuse of process has been recognised as an independent duty of the Court to prevent abuse, not limited to fixed categories. In New Zealand Social Credit Political League Inc v O'Brien a claim was struck out as abuse of process even though the defendant was not a party to the previous litigation brought by the plaintiffEstoppel per rem judicatum, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts – that a matter once determined may not be againlitigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures.[27] So far as these principles are concerned, I am satisfied that the following matters concerning the abuse of process doctrine would appear to be directly relevant in the present case: a) The class or category of cases in which a procedure may amount to an abuse of the Court's processes is not fixed; b) It includes proceedings which would "bring the administration of justice into disrepute among right-thinking people", and; c) That a matter once determined may not again be litigated, and that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently. d) Although in the present case it does not seem that we are concerned with a collateral attack upon a final judicial decision in the sense of a judgment following a trial, the present case in my view does concern an attempt by the plaintiff to re-litigate a matter which was judicially sanctioned, or was at least subject to close judicial scrutiny and approved on not less than three separate occasions. [28] I turn now to apply those legal principles relating to r.186(a) and (c) respectively to the present case before the Court.No reasonable cause of action disclosed[29] As best as I can tell from the plaintiff's Statement of Claim and Notice of Application, the substance of his claim is that the letter provided by the defendant as part of the settlement agreement did not have the outcome the plaintiff had hoped for– namely it did not result in the Disputes Tribunal reversing its earlier ruling adverse to him, in particular that he was to pay costs and disbursements of $1,180. [30] Before me, the plaintiff indicated that he thought the letter from the ADLS would have given him the right to return to the Disputes Tribunal, and in his words "get me back the $1,180 costs award wrongly made against me earlier". [31] It seems that when it made the costs award against the plaintiff, the Disputes Tribunal may have seen and taken into account earlier correspondence from the defendant ADLS dated 18 December 2002 and 7 January 2003. In this correspondence the defendant had apparently indicated that in reviewing the material submitted by the plaintiff in his complaint against the practitioner respondent, it had found the complaint of misconduct against the practitioner was not established, and the complaint was dismissed. The suggestion is made that on the basis of this earlier correspondence, the Disputes Tribunal formed the view that the practitioner in question had done "nothing wrong". [32] The letter dated 7 April 2005 from the defendant referred to in the settlement agreement is addressed to Mr and Mrs Bolton, is headed "private and confidential", and states in part:Re complaints by Caroline Bolton concerning Geraldine Ryan This letter is intended to clarify aspects of my letters of 18 December 2002 and 7 January 2003 in which I indicated that I had reviewed the material submitted in this complaint and had closed my file. In other words, I had concluded that the complaint of misconduct was not established. I wish to make clear that my enquiry was conducted under Part VII of the Law Practitioners Act which is concerned with discipline within the legal profession. That is the only statutory basis upon which the Society could enquire into your complaint at all. Consequently, the decision not to uphold your complaint did not involve any determination of fact or law, which might be binding on any other party or Tribunal, concerning the matter of negligence by the practitioner. The Society's decision was concerned solely with the question whether any matter established in your complaint warranted professional disciplinary action against the practitioner. The decision was that it did not. The reference in my letter of 18 December 2003 to my being "satisfied that no irregularity of any kind has been perpetrated" related to my enquiry into professional conduct.[33] It appears that notwithstanding this 7 April 2005 letter, subsequent attempts by the defendant to have either the District Court or the Disputes Tribunal review the Disputes Tribunal decision to award costs against him were unsuccessful. [34] The plaintiff's present case is wholly premised on his proposition that this letter provided in compliance with the settlement agreement did not have the effect on the outside party (in this case the District Court or the Disputes Tribunal) which the plaintiff had hoped it would. [35] As to this aspect, it is clear to me that the effect this letter might have on an outside party was not a term of the settlement agreement. Nor, as I see it, could it have been, since it was not a matter over which the parties to the settlement agreement had any control. [36] Further, in my view, the plaintiff's assertion in his Statement of Claim that he was "assured by both ADLS and the presiding Judge that legally trained minds would understand the letter's meaning, enabling the desired outcome" is an entirely speculative pleading, and on any view of the matter, so improbable and unlikely as to load to the conclusion in this case that it should be entirely disregarded. [37] I turn now to consider what seems to be a cause of action headed by the plaintiff as "breach of natural justice". In my view this cause of action is quickly disposed of. [38] The "breach of natural justice" cause of action seems to be premised on the assertion that:The co-lateral understanding of the parties essential to the acceptance of the letter of clarification by the plaintiff has failed to eventuate.[39] If this was a cause of action in judicial review (and as I have noted, it is not expressed as such and the parties have said it is not judicial review), it must in any event assert a reviewable error. The plaintiff's Statement of Claim does not do so, and on the facts contended, as I see it, could not do so.[40] The settlement agreement itself makes no reference to any "co-lateral understanding of the parties" concerning the letter, and in my view no such "understanding" could be inferred. There is no proper basis to do so. [41] Further, the concept of "breach of natural justice" on its own is an abstraction. It must be accompanied by a corresponding allegation of reviewable error. In my view, there was no such error in the context of the settlement agreement, nor could there have been, because it did not involve the exercise of any statutory power of decision-making. This cause of action must also fail. [42] Turning now to the cause of action concerning "contractual mistake", the plaintiff appears to assert that there was a common mistake, and that the parties were "influenced in their respective decisions to enter into the settlement by the same mistake". This is clearly a reference to s6(1)(a)(ii) of the Contractual Mistakes Act 1977. [43] In my view, this cause of action is also unsustainable. To assert that the defendant was influenced in entering into the settlement agreement by a belief or understanding about the likely response of the Disputes Tribunal to the 7 April 2005 letter is without foundation, speculative and so improbable as to warrant dismissal. [44] Further, the effect of the letter was not itself a term of the settlement agreement. All that the defendant was required to do was to "provide a letter to the plaintiff in the form of the attached draft", which it did. [45] It is improper to suggest that there is any basis for thinking that the defendant was mistaken concerning the effect of the letter or any other aspect of the settlement agreement. A mistake as to future expectation is not a "mistake" as defined in s2 Contractual Mistakes Act, which talks of a mistake "whether of law or of fact". [46] As to this, Burrows, Finn and Todd Law of Contract in New Zealand 2 nd ed. at para 10.3.2 describes a mistake concerning expectation as to future events or contingencies in the following terms:Such an erroneous belief is not a mistake of fact (and is certainly not one of law) and therefore does not come within the present statutory definition. It might also be argued any person who forms an expectation as to the future knows that his or her belief carries with it an implicit risk of error, even though that risk may be discounted, and that a party who knows that his or her belief may be erroneous is not mistaken just because the known risk of error materialises.[47] In summary, the broad proposition from the plaintiff that the Associate Judge and all parties at the Judicial Settlement Conference in effect "guaranteed" that the 7 April 2005 letter would have the outcome sought by the plaintiff is quite unsustainable. Further, if the letter involved some form of mistake, then this could only be a mistake on the part of the plaintiff, and was a mistake for which no remedy lies under the Contractual Mistakes Act 1977. [48] In summary, taking into account the general rule that a claim is not to be struck out unless it is so clearly untenable that it could not possibly succeed, for the reasons outlined above, I am satisfied that the plaintiff's claim here is hopeless and discloses no reasonable cause of action against the defendant. It must be struck out on this basis alone. An order to this effect will follow. [49] Although it is not strictly necessary for me to consider the defendant's second strike out ground that this proceeding is otherwise an abuse of process of the Court, for the sake of completeness I now do so.The pleading is otherwise an abuse of process of the Court[50] The defendant's contention here is that the plaintiff's causes of action are an abuse of the processes of the Court, in that: a) The plaintiff is seeking to re-litigate matters which have been judicially sanctioned on not one but three separate occasions; and b) The plaintiff is using the Court procedures in the present case misguidedly to redress his failure to overturn an earlier adverse ruling of the Disputes Tribunal, to which the defendant was not a party, and in respect of which the defendant has no concern or influence.[51] As to this, the defendant maintains that the Court must take into account a related point concerning the wider public interest in upholding judicially sanctioned settlement agreements and consent orders. The defendant contends that in the present case there is a compelling public interest in striking out the plaintiff's claim because: a) The parties voluntarily submitted to the Court's settlement jurisdiction under r442 High Court Rules, and they and all other litigants therefore must have confidence that agreements reached at a formally convened and sanctioned settlement conference will be certain, final and enforceable, except in most exceptional circumstances which do not arise in the present case. b) Similarly, it is in the interests of the proper administration of justice that the Court upholds agreements reached at Court-convened settlement conferences, and that such agreements will not be set aside except again in most exceptional cases. c) The proposition that a person could set aside a judicially sanctioned settlement agreement because the intended effect on another party did not materialise, if endorsed by this Court, would significantly damage the credibility of the Court settlement jurisdiction under r442. [52] In my view there is considerable substance in these contentions on behalf of the defendant. [53] The settlement agreement reached on 6 April 2005 was recorded in a hand- written agreement on that date. It was signed by the plaintiff Mr Bolton and his wife at a settlement conference presided over by Associate Judge Abbott. In addition, it was recorded in a settlement conference Minute of Associate Judge Abbott dated the same day. [54] Subsequently the settlement agreement terms were approved by Wild J in an order dated 23 May 2005. And they were confirmed again when Heath J dismissedthe underlying claim consistently with the settlement agreement in a Judgment dated 14 July 2005. [55] Although the plaintiff has not expressed his claim in terms of it being an application to set aside a consent order, it is, however, an analogous proceeding, particularly as he appears to place reliance on the case of Phillips v Phillips [1993] 3 NZLR 159 (CA) in his Notice of Application. This is a case which concerned the Court's jurisdiction to set aside consent orders. [56] The general principles for setting aside consent orders were discussed more recently in Kain v Hutton [2004] 2 NZLR 333 and in general terms are: a) The High Court has the inherent jurisdiction to set aside a sealed consent order obtained without authority (by counsel) or as a result of a mistake, if the interests of justice require it. b) The "ultimate question" is whether the setting aside is necessary in the interests of justice, having regard to all the circumstances of the case –Waitemata City Council v McKenzie [1988] 2 NZLR 242 (CA) andPhillips v Phillips. c) The jurisdiction is not limited to situations of a "vitiating element" such as mistake or unconscionability, but may also apply where there has been "an arrangement to resolve some issue without the need for argument and a ruling" and in such situations, jurisdiction to set aside may be invoked more readily. More recently, in Bullivant v Enza Limited [2001] NZLR 498, the Court said that the jurisdiction would apply where it can be shown that there is fresh evidence, non- compliance with procedural rules, lack of authority on the part of an agent, or unilateral mistake unknown to the other party. d) In relation to the latter unilateral mistake, Fisher J in New v New(2002) NZFLR 901 said that a party seeking relief would have to demonstrate the significance of the mistake, that the other party knewof it, and that substantial inequality resulted. Likewise, if a common mistake is relied upon, then both parties must have laboured under it and substantial inequality must have resulted. [57] Bearing these principles in mind, I am satisfied that in the circumstances of the present case, there is no basis upon which the plaintiff could justify the setting aside of the settlement agreement or consent order here as: a) No basis has been shown that the interests of justice here require that the settlement agreement or consent order be set aside. In fact, for the reasons I have outlined above, in my view it is clearly in the interests of justice that the settlement agreement here be upheld. b) There is no vitiating element here, and further the assertion of a common mistake is quite unsustainable for the reasons I have set out above. No sound basis exists for any contention that the parties laboured under a common mistake as to the ultimate effect of the 7 April 2005 letter, or that there was a substantial inequality in the outcome of the settlement. The mistake, if there was one, was a mistake in expectation by the plaintiff alone. A party's disappointed expectation is not a ground for setting aside a settlement agreement sanctioned by the Court and a subsequent consent order. [58] For all these reasons, I find that the plaintiff's causes of action against the defendant here are also an abuse of the processes of the Court in terms of r186(c) and should be struck out on this ground as well.Conclusion[59] For the reasons outlined above, the defendant's strike out application succeeds. An order is now made striking out the whole of the plaintiff's pleading in this proceeding.[60] As to costs, the defendant has indicated that it is seeking costs from the plaintiff, and requests an opportunity to provide a memorandum to the Court as to costs. [61] A direction is now made that: a) By 9 November 2006 counsel for the defendant is to file and serve a memorandum as to costs. b) By 23 November 2006 the plaintiff is to file and serve his memorandum as to costs. c) I will then determine the question of costs based upon the material filed._____________________________Associate Judge D.I. Gendall