Wijayaratne v Temperzone Australia Pty Ltd

In *Wijayaratne v Temperzone Australia Pty Ltd*, the applicant, Mr Wijayaratne, sought to set aside an arbitration award made in favour of the respondent, Temperzone Australia Pty Ltd. The dispute arose from a contract for the supply and installation of air conditioning equipment. Mr Wijayaratne alleged that the equipment was defective and that Temperzone had breached its contractual obligations. The matter proceeded to arbitration, where the arbitrator found in favour of Temperzone and made an award accordingly. Mr Wijayaratne then applied to the Supreme Court of New South Wales to have this award set aside.

The primary legal issue before Driver J was whether the arbitration award should be set aside pursuant to section 75 of the *Commercial Arbitration Act 2010* (NSW). Specifically, Mr Wijayaratne contended that the arbitrator had engaged in misconduct by failing to give him a fair hearing, thereby vitiating the award. This alleged misconduct stemmed from the arbitrator's decision to proceed with the arbitration and make an award without hearing oral evidence from Mr Wijayaratne, despite his request to present such evidence.

Driver J considered the principles governing the setting aside of arbitration awards for misconduct. His Honour noted that a failure to grant an oral hearing can amount to misconduct, but only if such a hearing is necessary for a fair determination of the dispute. In this instance, Driver J found that Mr Wijayaratne had not demonstrated that oral evidence was essential for the arbitrator to properly consider the issues. The arbitrator had been provided with extensive written submissions and evidence, and the nature of the dispute did not necessitate oral testimony. Consequently, Driver J concluded that the arbitrator had not misconducted himself by proceeding without hearing oral evidence.

The application to set aside the arbitration award was dismissed.