WA Residential Retaining Wall Dispute - Options to Move Forward?

[SP3]

I am a self-represented claimant in a case regarding refusal by the neighbour to contribute to the capital and maintenance cost of a residential boundary fence. The neighbour counterclaimed by claiming the retaining wall under the fence was defective.

17 months, 9 magistrate court attendances , 4 expert witness reports, thousands of dollars of costs, the defendant ( who is represented) appears to have lost interest in the case. The last 3 court orders with deadlines have not been complied with by the defendant . As a result the case has not progressed for over 4 months.

What options do I have to progress the case?

 

[Rod]

Force the matter to trial and say the defendant has had ample opportunity to defend their rights, they have refused to do so, and you want orders made as per your claim. So it becomes an undefended hearing which you should win (depending on whether all admin has been completed correctly eg other party properly served etc).

 

[SP3]

Force the matter to trial and say the defendant has had ample opportunity to defend their rights, they have refused to do so, and you want orders made as per your claim. So it becomes an undefended hearing which you should win (depending on whether all admin has been completed correctly eg other party properly served etc).

Thank you for your response.

A bit more detail:

The defendants expert alleges the retaining wall was damaged due to wind loading ( and it is my responsibility to fix it ) . My expert ( 50 page report with plenty of evidence ) concludes the retaining wall was damaged due to the neighbour undermining it 6 years ago during his site works, when the property was developed . Cost of repairing the wall is about $ 20,000.

I would like the neighbor to rectify and pay for the damage he has inflicted on the wall. My initial claim was was for the fence costs only. The wall issue (which I was initially unaware of) only became part of the case as a result of the defendants counterclaim.

I would now like to expand my claim to include the repairs to the wall as well, now that I have evidence that it is damaged and the neighbour caused it.

Is this a valid proposal? Any possible repercussions? Will the courts allow an expanded initial claim?

 

[Rod]

Possibly. I'm not in WA and not sure of their rules about amending a claim. Ask the court first for the correct procedure and if they don't answer you may need the help of a lawyer.

 

[SP3]

Possibly. I'm not in WA and not sure of their rules about amending a claim. Ask the court first for the correct procedure and if they don't answer you may need the help of a lawyer.

Thanks for that.

Another twist in the case is that the defendants expert witness is also his brother - in - law.
I objected about this conflict of interest at the time to the defendants lawyer, who dismissed my concern.

In the course of the litigation this person has openly represented the defendant at a hearing, written correspondence on his behalf and acted like a private investigator, checking up on me , looking for " dirt" on social media. I know this because , one day , they mistakenly sent me a chain of emails that were quite incriminating.

I understood that expert witnesses weren't supposed to behave this way. They are supposed to be impartial , unbiased and their main duty is to the court.

What action can I take to have this person held accountable and taken off the case?

 

[Rod]

You are better off having him in the witness box and attacking his credentials and credibility. Why have him thrown off when he may be your asset?

There are rules of evidence in cross-examination of an expert witness and you may benefit from having a barrister present your case in court else the other side, if represented, may fluster you when you testify and in your cross-examination on technicalities.

 

[SP3]

You are better off having him in the witness box and attacking his credentials and credibility. Why have him thrown off when he may be your asset?

There are rules of evidence in cross-examination of an expert witness and you may benefit from having a barrister present your case in court else the other side, if represented, may fluster you when you testify and in your cross-examination on technicalities.

Thanks.

I am in no financial position to hire any legal representation unfortunately so have no choice but to remain self - represented through to the end.
This case started with a claim of $ 1500 for the fence contribution. . The counterclaim ( regarding the retaining wall, which I thought was an unrelated matter ) upped the potential value to over $ 50,000.
This action took me by surprise as I didn't realize such a response was possible.

If/when the case goes to trial, what is the sequence of events, where a counterclaim is involved ?
I commence proceedings , outline my case , then call and examine witnesses . When does the defence introduce the counterclaim?