DARCY SMITH AND ANOR v WYONG SHIRE COUNCIL [1992] NSWCA 231

DARCY SMITH AND ANOR v WYONG SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 6 July 1992, 6 July 1992 [1992] NSWCA 231

Summons for leave to appeal against a decision of the Land and Environment Court (Bignold J) refusing a stay of proceedings in that Court.

CONTRACT — settlement of litigation revived proceedings in Land and Environment Court — whether settlement required mere promise to do things or actual performance of those things required — judge refuses to stay litigation over alleged breaches application for leave to appeal — held: Refused.

PRACTICE and PROCEDURE — Court of Appeal leave to appeal refused — (a) Not timely; (b) (per Priestley JA) No apparent reasonable prospect of success on grounds argued.

Kirby P The Court is of the view that the summons for leave to appeal in this matter should be dismissed.

So far as I am concerned the issue is timeliness. Is it timely to bring the matter in controversy up to the Court now?

Everything that could have been said in favour of a grant of leave on the basis of timeliness has been said. It is true that, if the matter were brought up now, it might save some time of the litigation which is in prospect in the Land and Environment Court. However, it was conceded by counsel for the claimants, rightly in my view, that in respect of the conduct of his clients after 15 May 1991 the opponent was perfectly entitled to seek relief against the claimants in the Land and Environment Court, unencumbered by the earlier settlement between them.

The complaint was that such matters had been incorporated in the proceedings which, it was said, were compromised. However such later matters of complaint could quite easily be excised from those proceedings. Their resolution would thereupon take some, if not most, of the time set aside before the Land and Environment Court.