THE NOMINAL DEFENDANT v WARDLE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P and MEAGHER JA 2 February 1998 [1998] NSWCA 229 Mason P. The application is refused. The court is not persuaded that the claimant has established that the judgment of Simpson J is vitiated with appellable error given that it relates to a discretionary judgment. Her Honour cited Salido and applied it, having taken into account a finding in favour of the claimant of significant prejudice. The court notes the second ground advanced in opposition to the application. It follows from that, it being a proposition with which I would agree, that it would be open to the claimant if it suffers an adverse final judgment to reagitate the matter for which leave has presently been sought and to do so in a context in which prejudice, if any, at the final trial can be more clearly determined. The summons is dismissed with costs. Meagher JA. I agree. Orders accordingly.