Tobin and Tobin as trustees for the Tobin Superannuation Fund v Gray

The case of Tobin and Tobin as trustees for the Tobin Superannuation Fund v Gray concerns a dispute involving the plaintiffs, who are trustees of a superannuation fund, and the defendants, one of whom was alleged to have acted as a solicitor for the plaintiffs in relation to 13 separate loans. The plaintiffs sought to set aside a default judgment that had been obtained against the second defendant, who had never been a qualified solicitor but had worked in an administrative capacity for a law firm. The case was heard in the Federal Circuit Court of Australia.

The central legal issue in this case was whether the default judgment should be set aside, particularly considering the second defendant's application filed almost three years after the judgment was entered. The court had to consider various factors, including the strength of the defendant's potential defence, the explanation for the defendant's failure to appear in court, and the delay in bringing the application to set aside the judgment. The plaintiffs, who are both elderly and in poor health, also presented a compelling case for the importance of maintaining the default judgment.

The court found that, while there are many factors that can inform the exercise of discretion to set aside a judgment, the weight given to each factor varies according to the circumstances of the case. In this instance, the court concluded that the second defendant had not demonstrated a sufficient basis for a prima facie ground of defence on the merits to warrant setting aside the judgment. The court also considered the significant prejudice that would be suffered by the plaintiffs if the judgment were set aside after such a long period of time. The application to set aside the default judgment was dismissed, and the second defendant was ordered to pay the plaintiffs' costs of the application.

In summary, the Federal Circuit Court of Australia dismissed the application to set aside the default judgment and ordered the second defendant to pay the plaintiffs' costs of the application.