Re Day

The High Court of Australia, sitting as the Court of Disputed Returns, considered questions referred to it concerning Mr Robert John Day AO. The proceedings involved discussions between counsel and the presiding Justice regarding the amendment of agreed facts and the resolution of disputed facts.

The central legal issues before the Court revolved around the nature of distributions made from trust accounts, specifically whether these distributions were made from profit. The Court also had to determine the validity and consistency of certain asserted facts, particularly concerning an alleged agreement or understanding between Fullarton Investments and the Day Family Trust (B&B Day), and whether payments constituted "repayments" or a simple passing back of rent.

The Court engaged in a process of clarifying and narrowing the disputed facts. Counsel for Mr Day sought to amend proposed facts by removing the word "profit" to avoid contentious arguments about the source of distributions, instead proposing that distributions were made "from time to time," particularly in 2012 and 2013. The Court also addressed disputed facts numbered 81 and 82. While fact 82 was no longer in dispute, fact 81 remained contested. Mr Day's counsel argued that fact 81 was inconsistent with their case due to a question of control over Fullarton Investments and the characterisation of payments as "repayments" rather than rent. Counsel for the Attorney-General presented documentary and oral evidence, including an email and witness testimony, to support the proposition that payments were not distributions of profit but rather a passing back of rent, consistent with an agreement that there would be "no profit nor loss" in the new trust.