Bharaj Construction Pty Ltd v MIBP

In the matter of *Bharaj Construction Pty Ltd v MIBP*, heard before Judge Barnes, the dispute concerned an application by Bharaj Construction Pty Ltd (the applicant) to set aside an arbitration award made in favour of MIBP (the respondent). The applicant sought to have the award, which was made on 15 December 2022, declared void and of no effect.

The primary legal issue before the court was whether the arbitration award should be set aside pursuant to section 34(2)(b)(ii) of the *Commercial Arbitration Act 2013* (NSW) (the Act). This section allows an award to be set aside if the applicant proves that the making of the award was induced or affected by fraud. The applicant contended that the respondent had engaged in fraudulent conduct by presenting false evidence to the arbitrator, which led to the arbitrator making the award.

Judge Barnes considered the evidence presented by both parties regarding the alleged fraud. The court applied the principles established in case law concerning the setting aside of arbitration awards due to fraud, which requires a high degree of proof. The court found that the applicant had failed to discharge the onus of proving that the respondent's conduct amounted to fraud as contemplated by section 34(2)(b)(ii) of the Act. Mere allegations or suspicions of fraud were insufficient; concrete evidence demonstrating that the award was induced or affected by fraud was required.

Consequently, the application to set aside the arbitration award was dismissed.