Eva Beach grasps at new trial appeal
The Nakhon Sri Thammarat Administrative Court has accepted a motion that may derail a Supreme Administrative Court ruling last year deeming the Eva Beach development in Rawai as illegal construction.
The Supreme Administrative Court ruling also deemed Rawai Mayor Aroon Solos as negligent and guilty of malfeasance in his role in allowing building permits to be issued and allowing the construction to proceed.
According to court documents obtained by The Phuket News, Judge Thanakorn Saringkarn formally accepted the motion on Jan 19. A trial date has yet to be set.
The motion has been filed under Section 75 of Act on Establishment of Administrative Court and Administrative Court Procedure, B.E. 2542 (1999), which stipulates that a motion for a new trial may be accepted on any of the following conditions:
(1) the Administrative Court erred in hearing facts or there appears fresh evidence which may result in material alteration of the finally heard facts;
(2) the real party or the third person did not appear in the proceedings or appeared but was unreasonably refused an opportunity to participate in the proceedings;
(3) there occurred in the process of trial and judgment a material impropriety which results in an unfair result of the case;
(4) the judgment or order has been passed or issued in reliance on any facts or law and subsequent material alteration of such facts or law results in the judgment or order being contrary to the law then in force.
The application under paragraph one (1) may be submitted only when the party or third person has, without fault, no knowledge of such circumstance in the previous hearing, Section 75 notes.
The application for a new trial or for a new order shall be submitted within 90 days as from the day such person has known or should have known of the ground for the new trial and judgment or for the new order but not later than five years as from the Administrative Court having the judgment or disposing order, the section adds.
Of note, the Supreme Administrative Court ruling was handed down on Sept 15 last year, giving a 90-day window for applications for a new trial to be submitted. That deadline expired on Dec 14, yet the motion for a new trial was formally issued on Jan 19.
According to court documents, it appears that the motion was accepted under paragraph two (2), “that the real party or the third person did not appear in the proceedings or appeared but was unreasonably refused an opportunity to participate in the proceedings”, as a list of owners of the units at Eva Beach have been listed as parties to the motion.
At this stage it appears that if the motion is successful under this appeal, developers in at least Phuket will be able to continue with illegal construction by using the unfair impact on victims who buy the properties as a way of allowing the illegal construction to remain.
The motion makes no reference to the guilty verdicts handed down by the Supreme Administrative Court to Rawai Mayor Aroon, who so far remains unimpeached for for his “negligence” and “malfeasance” in allowing illegal construction to proceed.
While the Eva Beach case was being heard at the Supreme Court, Mayor Aroon came under fire in 2017 for allowing illegal construction to continue on the coastal road along Krathing Cape, north of Nai Harn. The incident gained national attention in the media.