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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44136
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Afternoon, I have had water damage to retaining walls and

Customer Question

afternoon, I have had water damage to retaining walls and garden beds that have been completely wiped out and caused significant damage to our property along with undermining the batter we had to protect us against erosion.
JA: What state are you in? It matters because laws vary by location.
Customer: SA, sorry I didn't mean to hit send just change lines. we found on investigating the cause that our neighbour had altered the storm water by adding a T junction and in his words "was using the storm water to water his garden" I have full video footage of the water flowing out of the altered pipe and plenty of pics. the owners originally were ok to pay for the damages they created until they saw the bill. I have since spoke to our insurance company who will pay 80% of the quote to repair but I also have to pay the $650 excess. the cost of this repair was only basic to do the right thing by my neighbour but since they now don't want a bar of it where do I stand legally?? with the weather we have just had all our top soil has been washed out due to their negligence and we now have small shrubs and trees blowing over due to the undermining of the soil they once were imbedded in. my insurance company aren't worried about going after my neighbour for recovery but I would now like all damages to be covered.
JA: Has anything been filed or reported?
Customer: Sorry, to who?? I handed my neighbour a copy of the quote to repair the damaged retaining walls but that is all. I originally thought it was a council easement iswue which they came and rectified but then we found out this was the true cause
JA: Anything else you want the lawyer to know before I connect you?
Customer: i have full video recording of the water flowing and there attempt to fix after we notified them, i also have the council report from over a year ago which mentioned the neighbour wasn't connected to the easement. i have since spent over $14k to help prevent any further damage happening as i have a 5 and 3 year who play beneath this area.
Submitted: 8 months ago.
Category: Australia Law
Expert:  Leon replied 8 months ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

If you can show that the damage was caused by the neighbour moving the water into the land and it caused the failure then they are liable under nuisance.

Here is some information about nuisance in SA

http://www.lawhandbook.sa.gov.au/ch31s01s01.php

You have to advise your insurer of the situation and have them investigate. If they believe it is the neighbour that caused it you should not have to pay the excess and the insurer will chase the neighbour for the cost of the repairs.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 8 months ago.
afternoon, the insurer is telling me that for the recovery of $650 it would be a waste of time and end up costing them more, i understand this but that dosnt sit well with me as it now costs me more money. my main question is am i able to sue them after the insurance claim as i have already laid out money that the insurance company wont cover
Expert:  Leon replied 8 months ago.

Good Afternoon

They should not be charging you the excess if it is not your fault. If there is evidence that another party caused the damage they should be paying the $650.00 and the insurer should be seeking compensation for the whole amount.

If you are compensated you can only sue for what you pay not what the insurer pays for the repair. So if you pay 20% of the total cost you can sue for that.