A material error of fact as to prospects of success on appeal constitutes reviewable error warranting the setting aside of a single judge's refusal to extend time to appeal under s 46(4) of the Supreme Court Act 1970 (NSW). A respondent who incurs financial obligations immediately after the appeal period expires, without confirming that no appeal will proceed and without notice to the appellant, will find the weight of that prejudice diminished on an application for extension of time.
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