LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

WA Retaining Wall Claim Needs Evidence?

Discussion in 'Property Law Forum' started by duck, 5 July 2016.

  1. duck

    duck Member

    Joined:
    5 July 2016
    Messages:
    3
    Likes Received:
    0
    Our neighbour did subdivision and they demolished the swimming pool and compacted the ground. The compaction damaged the boundary retaining wall. We submitted a general procedure claim towards them and the court dismissed our claim. The judge said it is a general procedure claim so he needs to judge based on evidence but no matter what evidence we provided they were not counted but the neighbour's imagination is used as evidence.

    According to the law, we didn't even need to provide any evidence but the neighbour needs to provide a dilapidation survey report. I don't know what I should do next as the judgement was not based on the law at all. I am wondering if the law is just used for us to read and fool us.

    Could anyone help me and let me know what I should do?
     
  2. Rod

    Rod Well-Known Member

    Joined:
    27 May 2014
    Messages:
    2,175
    Likes Received:
    260
    Not sure what evidence you provided however the burden of proof lies with you. You need to show their activities damaged the wall. They don't need to show they didn't cause damage.

    Photos are evidence of damage, not what caused it. You will need an expert's report, such as from a soil engineer or geotechnical engineer, that supports your assertions. I'd expect it to cost money however you can claim it back from the other party if you are successful.

    The other issue you now face is whether you can take the same matter back to court. Did the Magistrate dismiss your case without prejudice, meaning you can come back to court with more evidence? Or was it finalised, in which instance the matter is now likely closed?

    The other thing to consider is whose responsibility it is to fix the wall anyway. Who altered the contour of the land? On whose property is the retaining wall? Is it on the boundary?
     
  3. duck

    duck Member

    Joined:
    5 July 2016
    Messages:
    3
    Likes Received:
    0
    Hi Rod, thank you for your reply. The case was dismissed. The wall is on the boundary and it is jointly owned according to the building act 2011. Not sure who change the contour but I think one side cut and one side filled.
     
  4. Rod

    Rod Well-Known Member

    Joined:
    27 May 2014
    Messages:
    2,175
    Likes Received:
    260
    If you are confident it was straight out dismissed then you can't try again unless you have legal grounds for an appeal. You need a lawyer to look at the paperwork to know if this was possible. Expensive option if you lose an appeal as you'll probably have to pay the other parties' costs.

    The other option you have is to say to your neighbour that the retaining wall needs repair, it is on the boundary, cut and filled by both sides, we will go 50/50 in the repair.
     
  5. duck

    duck Member

    Joined:
    5 July 2016
    Messages:
    3
    Likes Received:
    0
    I will ask a lawyer for help. I have legal grounds but the case was not judged based on any law. It is so strange. When we mentioned the law, the judge just say don't talk about the law.

    We don't talk with our neighbour anymore. The construction work makes it a headache.
     

Share This Page

Loading...