91 At the outset, it is noted that the learned judge did not refer to what in my opinion was a relevant consideration of substance. He made no mention of the fact that the solicitors acting for Cathodic after service, having filed a conditional appearance, later advised the client there was no basis for attacking the service, and the appearance became unconditional, a new writ was issued consolidated with the earlier writ and the matter progressed for a period all told of about nine months. The prejudice to Savcor is obvious. It is both financial and the possible loss of rights due to limitation defences becoming available. His Honour noted that it was possible some causes of action were barred. There was some basis for thinking some of the breach of contract claims were statute barred. He noted the costs of starting again, but made no mention of the substantial costs thrown away, not to mention the costs order resulting from the dismissal of the proceeding. In my opinion, these matters were relevant to the exercise of the discretion. In addition, Cathodic, by its conduct during this period, acquiesced in the order. Again, his Honour made no reference to this fact. The omission to consider what in my view were relevant matters meant that his Honour's discretion miscarried.
92 But in addition, in my opinion there were other matters his Honour took into account which were irrelevant. The factors identified in paragraph 87, supra, factors (i), (ii) and (iii), in my opinion, were irrelevant to the question of discretion on the application before the judge. They may have been matters relevant to the Master's decision and would have been relevant on a re-hearing of that decision, but in my view were not relevant to the exercise of the discretion after it was proven that there had been a material non-disclosure.
93 Further, his Honour's consideration of the question of insurance is not supported by the facts. The insurer declined cover because of failure by Cathodic in the years earlier than 1999-2000 to disclose a possible claim against it.
94 Finally, in weighing up the considerations his Honour stated that the application should not be granted and went on to observe that he could not overlook the fact that the writ in the circumstances now known should not have been extended. That was a fact which was relevant to the materiality of the alleged non-disclosure, but in my view was not a fact to be taken into account on the question of discretion. The degree of culpability may have been. However, his Honour did not find that there was any intentional wrongdoing on the part of Savcor or its advisers.
95 In my opinion, his Honour's discretion miscarried. The question was whether the discretion should have been exercised in favour of Savcor. If it was a material non-disclosure not to state the full extent of Dr Chess's involvement in preparing a witness statement, it was in the context not a serious transgression bearing in mind that the Master was aware that the existence of the writ was kept from Dr Chess. A decision was made by Cathodic's lawyers to continue with the proceeding, the delay caused financial prejudice to Savcor but more importantly exposed it to limitation defences which were not available at the time when the appearance became unconditional. If there was material non-disclosure, justice, in my opinion, dictated that the order extending the validity of the writ should not have been set aside.
Waiver
96 The fourth ground relied upon by Savcor was that by permitting its appearance to become unconditional and thereafter participating in the proceeding for eight months during which time Savcor incurred significant expense, Cathodic waived any irregularity in relation to the extension of time for the service of the writ and its service. At the outset, it is necessary to consider whether this was a live issue before the learned trial judge. According to his reasons, see para 41, it was not an issue before him. In light of my conclusions it is unnecessary to consider this question.
Notice of Contentions
97 Cathodic as respondent to the appeal filed a notice of contention on 8 April 2004. The grounds were divided into three categories. Cathodic abandoned ground A(a). Ground A(b) contended that the Master would have understood paragraph 6 of the affidavit of Mr Grant as meaning Cathodic was aware of the issue of the writ. I do not read paragraph 6 in that way at all. The context is totally opposed to any such contention. That ground fails.
98 Ground B states that in exercising his discretion the judge should have taken into account the statement made in paragraph 6 of Mr Grant's affidavit, that the extension of the validity of the writ would not materially prejudice the defendant was wrong, and that Mr Grant should have informed the Master of the potential prejudicial effect upon Cathodic's position with its professional indemnity insurers. I do not accept for one moment that that is a matter relevant to the discretion. It has not been contended and has not at any stage been contended that there was a material non-disclosure in respect to that. There is no evidence that Savcor's solicitors were at the relevant time aware of Cathodic's insurance position. The contention fails.
99 Ground C is concerned with the question of denial of natural justice and proceeds on the assumption that this Court accepted the submission of the appellant. Because the Court has not reached that conclusion this ground is irrelevant.
Conclusion
100 In my opinion, the learned judge was wrong in coming to the conclusion that in the circumstances there was a non-disclosure to the Court or that any non-disclosure was material. If I am wrong in that conclusion, in my opinion his Honour's discretion, whether to set aside the order or not, miscarried. His Honour should have refused the application with costs.
101 In my opinion, the appeal should be allowed, the orders made by the learned trial judge on 14 June 2002 in paragraphs 1, 2 and 3 be set aside, and the matter should be remitted to the judge in charge of the Building List for further directions.