HIS HONOUR: Okay. I think the problem I have here is that having chosen to go to SAT then SAT seems to me to have been the jurisdiction where the issue of what cost you should recover in relation to Butcher Calder should have been resolved. I don't see how you can go to SAT and resolve the conflict but then come here and seek to recover the preparatory costs involved in doing that. This is a nocost jurisdiction as well.
AMSDEN, MS: I understand that.
HIS HONOUR: My suspicion is that you had two choices perhaps you had more. You had a choice to go to SAT. You could have, I suspect, brought an action in this court seeking the costs to rectify what you said was the wrong done by the defendants and if that were under $10,000 as I suspect it would have been, you wouldn't have got these costs here either because this is a nocost jurisdiction so I don't see how you can instruct a solicitor in relation to the issue which you then took to SAT, have it resolved at SAT and then seek to bring a separate action here for the costs involved in the problem which ultimately was resolved by SAT.
It seems to me having selected that jurisdiction which seemingly you were entitled to do that the issue which you raise in this court is an issue which had to be resolved in that jurisdiction. It was seized of that issue and this particular question. I don't know what they would have done about that but that was where I suspect this claim had to be resolved.
I struggle to see how you can split it between that jurisdiction and that jurisdiction, and again noting that if you had brought the claim in this jurisdiction if it was under 10 grand, you wouldn't have got these costs either.
AMSDEN, MS: Your Honour, taking that view, these costs were involved in an attempt to have a resolution to the matter without going to SAT.
HIS HONOUR: But the matter which you ultimately took to SAT, the airconditioner.
AMSDEN, MS: Yes.
HIS HONOUR: That's where this issue needed to be resolved.
AMSDEN, MS: And again, SAT requires and my understanding is they require you to outline what steps had been taken prior to taking a matter to that so these were steps that the reason why it went to SAT was the failed ability to have it resolved prior.
HIS HONOUR: Okay, I'm not criticising you for going to SAT but what I'm saying is that having gone to SAT, you elected that jurisdiction to resolve this problem between the three of you and that is where this issue in relation to costs that you incurred needed to be resolved as well.
AMSDEN, MS: The cost issue never arose in the application to SAT.
HIS HONOUR: That's a matter for the parties. I can't control what you or SAT did in relation to that. I'm not saying that SAT would have given you these costs. My understanding is that it may not have.
AMSDEN, MS: No.
HIS HONOUR: That's another reason it seems to me that you can't come here. Seemingly, you're going through a back door to try and get here what you couldn't get in SAT.
AMSDEN, MS: There was no application for costs.
HIS HONOUR: That's my fundamental point. That's where the application should have been made. If you're going to seek costs in relation to this issue which was resolved through SAT, then that's where you needed to ask for your costs.
AMSDEN, MS: Those costs would not have been awarded in SAT. The only costs that were awarded in SAT and I can indicate the prior matters in 2006, 2007 were because the application had been brought by the thenproprietors with no legal standing. Now that was a matter that SAT considered that costs that strata company had been put to were payable and indeed they were.
HIS HONOUR: Okay. I'm not an expert on SAT but hearing you say from the bar table that you would not have got these costs in the SAT proceedings just strengthens my view that you shouldn't be here either because you chose SAT as the jurisdiction to resolve this issue, therefore within the control of SAT for associated matters such as the costs. Again, I just repeated it, had you brought a claim in this court for the costs to rectify, to move the unit and I suspect that would have been under $10,000, the cost of doing that is that a fair assumption?
AMSDEN, MS: I'm not sure what those costs were.
HIS HONOUR: Okay, well, I'm going to work on the basis it wouldn't have cost you more than $10,000 to relocate an airconditioner a starting point is you wouldn't have got these costs here either because this is also, as a starting point, a nocost jurisdiction. Putting that to one side, my basic point is that having chosen to go to SAT to address the problem, that's the jurisdiction which had the power to deal with the question of costs and I don't accept that you can split the claim effectively between SAT and this court.