Note concerning Thailand Supreme court opinions: Thailand is a civil law jurisdiction that also has elements of the common law system. Accordingly, the principle law sources are acts, statutes and regulations. However, published Supreme court decisions are an important part of the legal development of Thailand and are frequently used as a secondary authority. (Summaries sponsored by Chaninat & Leeds)
2552 Thailand Supreme
Court Opinion (No. 461) 2009
Ms. Suwanna Sae-heur Plaintiff vs.
Mr. Komrat Maliwongse and party Defendant
Civil Sublet agreement Transfer the leased property (Section 544, 569)
Civil Procedure An appealed question that has not discussed in the lower court (Section 249 1st paragraph)
The 30 years Thailand property leased contract indicated that leased for construction the buildings and there was no tea money for the lease. T, the former lessor and the three Defendants did not designate the construction period and the amount of the buildings that the three Defendants is going to build up on the leased land. From the contract, it is cleared that the three Defendants have right to construct the building in any quantity and at any time during the leased period. And in setting the new agreement on constructing period. T and the three Defendants have to make a discussion; it is not applicable for T to reset the construction period alone. This reflecting the Plaintiff who takes over the land and ownership from T, therefore, the Plaintiff has no right to solely set construction period and require the three Defendants to start constructing the building. The plaintiff sent a letter to inform the three Defendants upon the construction matter and stating that the leased terms has already taken for over 8 years period but the three Defendants neglected the informing letter. The court considered from the copy of the 30 years land leased contract and noticed that the three Defendants did not breach the contract; and the three Defendants has the right to sublease. The contract did not prohibit to the three Defendants in subleasing the building – no prohibited wording was found. Up to this point, the three Defendants have no rights to sublease the disputed land; if they have constructed the building, they also have the right to sublet the land and the building. In present, the three Defendants have not started the construction but the land was already subleased to the sublessee. The three Defendants did not breach the contract, therefore, the Plaintiff has no right to cancel the contract before the due date.
The three Defendants appealed to the Supreme Court claiming the Plaintiff to pay damages for the three Defendants. But due to the cause that the three Defendants did not lodge the appeal to the Court of Appeal section 7 after the Court of the First Instance dismiss the counter claim, therefore the request is failed. It is barred to appeal to the Supreme Court if the question has not discussed in the lower court as prescribed under the Civil Procedure Code Section 249 1st paragraph.