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. Accordingly, in my view, it is appropriate that the matter should be ventilated and exhausted in that Court before any dispute is brought here relating to the suggested effect of the settlement. Necessarily, in dismissing the summons, this Court is not passing judgment on the effect of the settlement in the Land and Environment Court. Such effect, if any, may at some future time need to be settled here. I propose that the order of the Court be that the summons is dismissed. The claimants must pay the opponent's costs. Priestley JA I agree. I only add to what has been said that, as at presently advised, without purporting to make any final pronouncement on the matter, I do not see any ground of appeal which has any reasonable likelihood of success. Meagher JA I agree that the summons should be dismissed. 2 UNREPORTED JUDGMENTS Kirby P: The order of the Court is that the summons is dismissed. The claimants must pay the opponent's costs. Counsel for the claimants: GM McGrath Solicitors for the claimants: Aubrey Brown and Partners by their city agents Stewart Cuddy and Mockler Counsel for the opponent: W O'Rourke (Solicitors) Solicitors for the opponent: Sly and Weigall