Prejudice under s 60E(1)(b) of the Limitation Act 1969 (NSW) must be established by reference to evidence that became unavailable after the limitation period expired, not evidence lost before that date. A deliberate forensic choice by a plaintiff's solicitors to confine proceedings to one defendant, while a powerful factor against extension, is not necessarily decisive where the prejudice to the proposed defendant is minimal and the defendant has been on notice of the claim through related proceedings. The existence of a cross-claim raising substantially similar issues significantly diminishes the weight of prejudice arguments.
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