Davis Samuel Pty Ltd v Commonwealth of Australia (No 2)

Davis Samuel Pty Ltd (the applicant) sought to set aside a default judgment obtained by the Commonwealth of Australia (the respondent). The application was heard by Elkaim J in the Federal Court of Australia.

The central legal issue before the Court was whether the default judgment should be set aside on the grounds that its continued existence constituted an abuse of process. This required the Court to consider the principles governing applications to set aside judgments, particularly where the applicant sought to do so *ex debito justitiae*.

Elkaim J reasoned that the applicant had not demonstrated that the judgment was irregular or that it was obtained by fraud or other misconduct. The Court found that the applicant had failed to provide a sufficient explanation for its delay in seeking to set aside the judgment and had not shown that it had a meritorious defence. Consequently, the Court concluded that the continued existence of the judgment did not amount to an abuse of process.

The application to set aside the judgment was dismissed. Mr Allan Paul Endresz and Mr William Forge were ordered to pay the respondents’ costs of the application.