Part 22 published on 01/05/08
Additional discovery and production rights arise when condominium corporation sues on behalf of owners
The condominium corporation asserted a claim on its own behalf and on behalf of the owners, seeking damages of $20 million for alleged deficiencies in both the common elements and the individual units. The Court said that, in cases where a nominal party (in this case the condominium corporation) asserts a claim on behalf of a beneficiary (in this case the unit owners), the Rules of Court [Rule 31.03(8)] give the defendants a right to examine the beneficiaries for discovery. Furthermore, the Rules of Court place an obligation upon the nominal party to produce relevant documents which are in the possession, control or power of the beneficiary [even if those documents are not in the possession, control or power of the nominal party].
The Court accordingly ordered the condominium corporation to produce agreements, completion certificates, and negotiation correspondence from each unit owner relating to the alleged deficiencies. The Court said that those documents “are relevant, and the request for those documents is not abusive, onerous, or otherwise improper.” The Court did not order the condominium corporation to produce various other documents sought in the notice of motion (but said that the defendants might have the right to make a further request for production of those other documents based upon additional evidence that may be revealed during the Court process).