The Court dismissed an application to set aside an arbitral award, holding that where parties agreed to a procedure allowing them to adduce expert evidence but chose not to do so, and where the scope of the arbitrator's task evolved through a later statement of agreed issues that omitted reference to an 'audit', the arbitrator's failure to independently conduct an audit or appoint an expert did not constitute a denial of procedural fairness. The Court held that the parties' failure to adduce expert evidence or seek timetable extensions was a strategic choice from which the Court would not protect them under s 34(2)(a)(ii) of the Commercial Arbitration Act 2010 (NSW). The arbitrator was entitled to determine the issues on the evidence before him, including by assessing the weight of lay evidence and documentary material, and to conclude that the tenants had not discharged their evidential onus.
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